Friday, May 26, 2006

What Is Pregnancy Discrimination?

(Will be cross-posted at Feminist Law Professors)

Elizabeth Vargas' departure from World News Tonight smacks of being pregnancy-related--in that she either decided to quit for the health and welfare of her family, or ABC decided to "make her quit" for the health and welfare of their ratings. So what exactly is pregnancy discrimination? Was Elizabeth Vargas discriminated against and unlawfully demoted on the basis of her pregnancy?

Everyone seems to think so. I think she was discriminated against, albeit unofficially and in not so many words, but I really want to interrogate the "unlawfully" part. But first let's take a look at some of the reactions/analysis by the media critics:

From The Columbia Journalism Daily Review Blog, a collection of reactions across the blogosphere (including my own):

Communicators Anonymous, who was inspired by Vargas to start her own career, is infuriated, writing that "women should be furious. Just when we think we are starting to make some headway in the communications business, one of our own gets slammed. Punished for wanting to have a family and a career too, women seem to be viewed as not being able to succeed at both ... especially in a place of power."

At BuzzMachine, Jeff Jarvis posts a "fired-up email" from network news observer Andrew Tyndall about the "terrible message" ABC's move sends to its viewers. "The demotion of Vargas and her replacement by a pre-baby boomer not only makes ABC News' long-term strategy incoherent. It displays a woeful tin ear towards the very demographic ABC News was purportedly courting," Tyndall writes. The "worst workplace nightmare the pregnant employee faces," Tyndall adds, "is the fear that her employer will find some way not to guarantee her job back on return from maternity leave."

And from Dahlia Lithwick, in her article "Pregnant Pause: What's the real story behind Elizabeth Vargas' departure from World News Tonight?" (which also cites me!):

What everyone is talking around are some of the same issues we didn't talk about last year during the brief national flip-out over the dearth of women columnists in major newspapers. Somewhere between the insanity of the assertion that a pregnant woman asked to be benched permanently from a major news show (for her second child but not her first), the bland media assertions that the pregnancy was a convenient smoke screen for legitimate business decisions, and the overreaction from advocates and feminists who see this as brazen discrimination, there may even be some snippets of truth.

At the core of all this chatter is also an interesting and unspoken problem about pregnancy and maternity—and the ways in which women who are fully competent to do any job, at any other time—may nevertheless falter or choose to rejigger their priorities for a few years. There were days during my pregnancies when I couldn't even rinse and spit, much less cover a major news story. When do you think I'll be allowed to write that without setting back the feminist cause?

Everyone is turning Elizabeth Vargas' pregnancy into a referendum on pregnant women in the workplace, and particularly in the media, because it's happening on a big screen in front of us, but also in our homes and our book groups. Vargas isn't just carrying the extra weight of her unborn baby here; she's carrying the weight of a whole nation of people who still see gender in absolute and defining terms. Maybe the reason we can't quite stomach a hugely pregnant news anchor is that we can't even manage to talk coherently about all the ways in which they somehow freak us out.

I don't like the signal ABC is sending out to working women. I don't condone pregnancy discrimination under the pretext that it is for some other bona fide business occupational qualification (BFOQ) or legitimate non-discriminatory reason (LNR) like "ratings, co-anchor chemistry" or "format." But I dont' want to off the cuff accuse them illegal pregnancy discrimination without really considering the issues. It's a curious thing in our legal world that you can be discriminated against, and everyone believes that you are treated unfairly and in ways a person who is not ____ would be treated--but you may still have no legal claim. Unless you're extremely popular and well liked by everyone, I'm sure you all have experienced the feeling of being disliked or unfairly treated or burdened by someone--an employer, teacher, the sales clerk--but having no concrete proof that you are being unfairly treated. You have to talk about salaries and promotions to know whether you're really being stiffed compared to someone of equal rank and qualification. And how do you know they're equal to you? There are always variables of seniority, performance reviews, and what being "qualified" means.

Sometimes you know a person doesn't like you as much as they like another person--but you can't say why, and you don't know how you know--you just know. And you can't document the ways in which you are treated less well than others--but you have reason to believe that they're being treated better. It's harder to prove employment discrimination than you think. The plaintiff has a burden of showing a prima facie case of discrimination on the basis of _____. Then the employer has all sorts of defenses--the aforementioned BFOQ and LNR to say that it wasn't discrimination. Then the plaintiff has the burden of showing that the employers' proferred LNR or BFOQ was pretextual, and merely a smokescreen for discrimination, which they can prove with actual evidence of discrimination (documented incidents or statistics). There are many employers stupid enough to openly refer to their minority or female employees by derogatory names and otherwise degrade them, blatantly give them less pay or assign them to the worst, most menial or dangerous jobs, or have a statistical showing of disparate hiring and promotion practices. But many by now have wised up, shut up, and put up a system of protections to give themselves deniability.

So what is pregnancy discrimination? Well, believe it or not, it wasn't unlawful until 1978, when Congress passed The Pregnancy Discrimination Act, which overruled an appaling Supreme Court decision that said that pregnancy discrimination was not discrimination on the basis of sex (one of the few protected categories). You know, even though women are the only ones who can give birth. The Supreme Court, in its infinite stupidity, reasoned that the classes of persons to analyze was not the treatment of women as compared to men, but rather "pregnant women and non-pregnant persons"--the latter class including members of both sexes--non-pregnant women and non-pregnant men who can never get pregnant. This is so dumb, it's embarassing. But fortunately, the PDA passed, and stated that " 'Because of sex' includes discrimination because of pregnancy, childbirth, related medical conditions, and women affected by pregnancy or childbirth shall be treated the same for all employment-related purposes. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations." That means you can't be fired because you got pregnant. When you come back from your maternity (or paternity) leave, you should still have your job. This is a great law, but applies only to employers with more than 15 employees (so as not to punish small business owners who may suffer debilitating financial burdens if forced to accommodate pregnant employees--many employment discrimination laws are thus limited in this manner).

Although it troubles many, you can view pregnancy discrimination as being related to disability discrimination. That's the whole bit about "similar abilities or limitations"--the pregnant woman should be accommodated in the same manner a person who is unable to ____ would be treated. For 9 months, and 6 months after, like a similarly physically limited coworker, you may have less capacity to perform your job--lift heavy objects, travel, and you may have to take off time because of your "condition." Others think pregnancy is akin to disability because men can be taken out temporarily (broken leg) or permanently impaired by sudden accidents and no one suggests that they are less committed to their work. Keep in mind, these are not like classes in the legal sense--just a way to think about how employment culture treats macho guys playing rugby versus fragile women who get knocked up.

A few cases are salient in a discussion of whether Elizabeth Vargas was discriminated against on the basis of her pregnancy. In Troupe v. May Dept. Stores, a woman was placed on probation for repeated tardiness due to severe morning sickness. She was fired, and her supervisor told her that the company discharged her because she was not expected to return to work after she had the baby. I can't imagine that kind of employer language being deployed now, but whatever. The 7th Cir. said that the woman was not a victim of pregnancy discrimination, because the timing of the discharge suggests that it was her tardiness that was the reason for her termination--she was an unsatisfactory worker. This is interesting because ABC has strong arguments that Vargas sucked as a sole-anchor after Woodruff's injury. Without that "chemistry" of the two anchors, ratings plummeted. She couldn't report from the field. She was not expected to until about a year from now, after her maternity leave. Keep in mind, ABC fired Woodruff too--and Troupe says that employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees for the same unsatisfactory work.

Vargas is not only protected by the PDA, but also the Family and Medical Leave Act (FMLA), which guarantees up to 12 weeks of unpaid leave for the birth or adoption of a child (but you must have worked ther for at least 12 months and it applies only to employers with 50+ employees). It applies to child bearing but not child rearing, so don't expect employers to stay flexible after you come back from your leave. So an instructive case here is Back v. Hastings, in which a school psychologist was denied tenure after she came back from pregnancy leave. The employer thoguht she couldn't be committed to her job if she also wanted to be a "good mother." This is sex-stereotyping, but still the employers argued that the woman had no case because fathers similarly situated weren't treated differently. Again, it's about the legal classes to compare--is this a case of the employer discriminating between men and women or "parents and non-parents"? Stereotyping about the qualities of mothers is a form of gender discrimination. The 2d. Cir. ruled that it was sex stereotyping and discrimination to expect that women will divert from work now or in the future simply because they become mothers. Again, this is interesting if you think about the Vargas case--no one questions Bob Woodruff's committment to his job after he recovers from his injuries--we all "assume" that once he heals, he'll be back, slightly scarred, on the big screen. But we expect (and Vargas' recent comments suggest) that Vargas will be less committed. She won't want to go to Iraq or Iran with a new baby. She'll want to cut back on hours. She'll want to take care of her kids and be a "good mother." This type of sex stereotyping is much more interesting and relevant to Vargas' case. But I doubt it was that blatant.

For a big corporation like ABC, I doubt you'll find that kind of "smoking gun" of a producer telling Vargas, "Gee, it's a shame you got pregnant now, with May Sweeps coming up. You couldn't have picked a worse time! Did the condom break or something? That's the catch with being female I guess, you never know when your body will do something that screws with your job duties. Well anyway, what's done is done. Not that I'm not happy for you! It's always great when a woman is blessed with a child! Just take it easy, Charlie will take over for you, cause it's not like you can fly to the warzone or even fit behind the anchor chair now, right? Heh heh. And when (ahem) you come back, we'll talk about your future here."

I'll bet there was a lot of mention of "chemistry" and "format' and "ratings" when they talked Elizabeth Vargas down from her job. It's a lot less blatant and painful than the words "you're being fired from your new, more senior position, and demoted back to your old position because you got pregnant." I'll bet what they said was, "You know, we always thought of you and Bob as being a team, a dynamic duo! You know, to capture a younger audience and the female demographic. But with Bob injured, and your joyous pregnancy, well, things just haven't been the same here. Not that any of this is yours or Bob's fault. Neither of you could have planned the disruptions to the broadcasting schedule! But you know, for the sake of stability, and because ratings have been plummeting, we've decided to go back to the single anchor format viewers are more comfortable with. We gave the co-anchor thing a good shot, but viewers just didn't respond. And the co-anchor format depends so much on the chemistry of the anchors--it's a volatile structure that we've decided to abandon. So we're going with Charles Gibson--the viewers know him, are comfortable with him, and trust him. We love what you've done for ABC--we just think you're better suited to a different news program and format. And don't worry--when you come back from maternity leave, you'll have a prominent position at your old job with 20/20."

That sounds a lot better, doesn't it?

In the end, I don't know whether Vargas was discriminated against on the basis of her pregnancy. Everyone is taking care to say that it was for all these other reasons--mainly, ratings--and because Elizabeth needs to take it easy and has changed her mind about how she wants to spend her new motherhood. Dahlia is right--there is a lot of hyperbole out there about this, and a lot of desire to make Elizabeth the martyr for working mothers. But whether ratings are a smokescreen, and whether or not there's a smoking gun, where there's smoke, there's some fire. There probably is some truth to the speculation that the pregnancy played a role in ABC's decision. But absent some other proof, like statements by ABC or evidence of disparate treatment, I can't say it was pregnancy discrimiantion per se. But I can say that there are plenty of genderized stereotypes about female workers, pregnant, potentially-pregnant, or already mothers--and that if anything, this Vargas brouhaha should make us talk about that and dispel such stereotypes. But most of all, this should make us think about and reevaluate our family leave policies and healthcare system, so that we don't think of women as having to make a choice between a having a kid or having a career.