Cloaking: Public Policy and Pregnancy

Julie Manning Magid, Cloaking: Public Policy and Pregnancy, 53 Amer. Bus.L.J. 439 (2016)

 

Long before J.K. Rowling wrote about an invisibility cloak that allowed Harry Potter and his friends to disguise their presence and move freely without detection, cloaks, both literally and figuratively, were associated with hiding and disguise. Pregnancy is often enshrouded as well, not only by women who want time before announcing publicly that they are expecting a child, but also in the course of public policy discussion and resulting legislative or regulatory enactments.

In the United States, public policy decisions concerning employment tend to avoid the important issue of pregnancy in the workplace, and this avoidance has disproportionately negative implications for women. “Cloaking,” as I use it here, refers to the various ways the United States legislates issues related to women in the workplace without directly discussing the uniqueness of pregnancy and its impact on employment and the wage gap. In particular, the policy discussions do not address transparently that the modern workforce requires job changes for economic advancement, and current policies focusing on accommodation and family leave fail to protect job changes during childbearing years.

Labor-market demands and economic self-sufficiency for women require policy makers in the United States to cast off the cloak that camouflages pregnancy as a subset of other policy concerns—gender, disability, family—and fully embrace pregnancy as a crucial issue in developing economic policy. The Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination each year; these numbers peaked in 2008 but remain steadily higher than in the previous decade. In an effort to add transparency to the issue, the EEOC conducted a public meeting in preparation for issuing new guidance to clarify further regulations related to pregnancy and its economic impact. At the public meeting, experts identified a direct connection between pregnancy discrimination and economic self-sufficiency for women and their families. As one expert noted, citing the “motherhood wage penalty” of as much as five percent per child, “[m]otherhood constitutes a significant risk factor for poverty.”