Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Saturday, March 8, 2014

The Pretexts of Pregnancy Discrimination

Despite the provocatively alarming title, Pregnant? Your Boss May Have it In for You, this article describes an interesting research study: 

Employers who illegally fire workers for being pregnant often attempt to skirt discrimination laws by smearing the employees as tardy, poor performers, or by chalking up their termination to company restructuring—even in cases where worse-performing employees, who were not pregnant, were allowed to remain on staff, and "company restructuring" turned out to be code for replacing pregnant workers.

That's according to a new study by sociology professor Reginald Byron of Southwestern University in Texas and Vincent Roscigno, a professor at Ohio State University. Their research, which will be published in the June 2014 issue of Gender & Society, is a major investigation into the phony justifications that employers who discriminated against pregnant workers gave to employees before firing them.

Byron and Roscigno examined 85 confirmed cases of pregnancy discrimination processed by the Ohio Civil Rights Commission for most years from 1986 to 2011. They found that pregnancy accounted for 40 percent of gender-related terminations. In around 30 percent of those cases, employers told the pregnant women that they were being fired for performing poorly; another 15 percent were let go for tardiness.

But a closer look at their workplaces found that pregnant employees were placed under greater scrutiny than their non-pregnant coworkers.

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This is an important point, but it raises an obvious question: how can employers limit their exposures to pregnancy brain?

I've been reminded in recent days by a pregnant law student and a pregnant (established and successful) woman lawyer that "pregnancy brain is a real thing." (Their words.)

So what are employers to do? If pretextual terminations are coming under increasing scrutiny, do you think it's time for endangered employers to explore other options? And how soon does an employer need to act to avoid the most harmful consequences of pregnancy brain?

It's unfortunate that with all the excellent research being done on the gender front, this crucial issue seems to have been so woefully underresearched.

Posted by: Think Like a 1L | Mar 8, 2014 3:45:34 AM

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