Executive women drive rise in pregnancy bias lawsuits.

Sarah Babb, a manager at Merisant--the company that makes the artificial sweetener Equal--got pregnant last year. But what should have been a joyous time soon turned bitter: In her ninth month of pregnancy, Babb lost the baby. Two months later, she lost her job.

Babb is suing the Chicago-based company over her firing, claiming Merisant discriminated against her solely because she was pregnant. Her complaint alleges that shortly after she announced her news, Merisant executives denied her an expected promotion, excluded her from important meetings, and suddenly started giving her negative performance reviews. In her claim, Babb says the company's actions violated the Pregnancy Discrimination Act. (Babb v. Merisant USA, Inc., No. 1:06CV01383 (N.D. Ill. filed Mar. 13, 2006).)

In 1978, Congress amended the Civil Rights Act to include a prohibition on "sex discrimination on the basis of pregnancy." The Pregnancy Discrimination Act says employers may not single out pregnant women for special treatment and must allow them to work for as long as they are able to perform their jobs.

Retaliation against working women who get pregnant sounds like a relic of a bygone era. And yet Babb is hardly alone. A highly publicized lawsuit against Google, Inc., says the Internet search-engine company meted out similar treatment to Sarah Elwell, a national sales director who became pregnant. In her complaint, Elwell claims that she had medical problems after giving birth to quadruplets and that when she returned to work, the company demoted and then fired her.

Google argued that the matter had to be settled by mandatory arbitration, according to the terms of Elwell's employment contract, and a district court in New York agreed. (Elwell v. Google, Inc., No. 05CV06487, 2006 WL 217978 (S.D.N.Y. Jan. 30, 2006).)

Meanwhile, the New York Civil Liberties Union (NYCLU) has filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of Michelle McCusker, a former teacher at St. Rose of Lima Catholic School in Queens, New York. When McCusker, who is not married, told the principal that she was pregnant, he fired her for violating the school's prohibition on premarital sex. The NYCLU complaint says the policy is illegal because only women become pregnant--an obvious sign of sexual activity--and therefore it can't apply equally to men.

"Presenting a case like this is almost like putting together a criminal case," said Babb's attorney, Michael Leonard of Chicago. "You have to show what was in someone's mind, what the people involved were actually thinking. You look at circumstances: What was the timing of certain events, how was the plaintiff treated? To the plaintiff, of course, it's obvious. She says, 'Look at where I was, and look at me now. What has changed?'"

The plaintiffs point to pregnancy as the thing that changed, saying it affected their position at work and how they were perceived and treated at the office.

An upward trend

The number of pregnancy discrimination complaints that the EEOC receives remains small compared with complaints of bias based on race or sex. But there's no question that the trend has consistently slanted upward in recent years. The commission reports that complaints of pregnancy discrimination have risen by 31 percent over the last decade, from around 3,400 in 1992 to 4,449 in 2005.

Litigation of these complaints has also increased: In the late 1990s, only a handful of pregnancy discrimination cases were filed each year. In 2005, plaintiffs filed 30 such lawsuits.

And the increase is happening in spite of other, seemingly contradictory demographic trends. According to the U.S. Census Bureau, the number of women with young children who continued to work outside the home has dropped, from 63.7 percent in 1998 to 62.5 percent in 2001. And the birthrate has fallen 9 percent at the same time these lawsuits have increased, according to the Washington, D.C.-based National Partnership for Women and Families.

What isn't clear is whether these numbers show that the problem is getting worse or that more women are aware of--and acting on--their rights.

"It's reflective of what is going on in society," said Leonard. "We see people at higher levels, especially, filing in pretty significant numbers. These are people who are not willing to sacrifice their careers. They are having their kids later. They are not willing to step back and just accept the status quo."

Chester Bailey, director of the EEOC's Milwaukee district office, which represented a high-level employee in a claim against Wisconsin-based SC Johnson, said in a statement that "the problem of women advancing into top executive positions is an ongoing concern of the EEOC. Certainly one of the factors which may contribute to the low numbers of women in such jobs is pregnancy discrimination."

Other observers agree that many of the recent lawsuits are being brought by upper-level executives. For example:

* In 2004, a group of women executives employed by Novartis Corp. sued the Basel, Switzerland-based pharmaceutical giant (and maker of Gerber baby products) for discrimination based on their gender and pregnancy. Many of the women allege that they were denied promotions after they became pregnant or when they returned from maternity leave. The case is pending. (Velez v. Novartis Corp., No. 04:CV09194, 2006WL903228 (S.D.N.Y. Apr. 5, 2006).)

* The same year, the Johnson Financial Group, a subsidiary of SC Johnson, settled a lawsuit brought by Rae Ann Good. She alleged that Johnson Financial offered her a job as an executive vice president and then withdrew the offer after she told her prospective bosses that she was pregnant. (EEOC v. Johnson Int'l, No. 2:03CV00943 (E.D. Wis. Dec. 27, 2004).)

* Last year, Cynthia Papageorge of Boston settled a case with Mothers Work, Inc., which designs and sells maternity clothes. Papageorge, a former manager at one of the company's stores, said she was fired after returning to work from maternity leave. (Papageorge v. Mother's Work, Inc., No. 1:03CV11193 (D.Mass. filed June 23, 2003).)

* And a current EEOC lawsuit alleges that a Long Island restaurant fired a waitress, who'd been promoted to a managerial slot, after she told her boss she was pregnant. (EEOC v. John Harvard's Brew House, Inc., No. 03CV3800 (E.D.N.Y. filed June 1, 2004).)

Educating employers

Joanna Grossman, a law professor at Hofstra University, said there are legitimate reasons for employers to treat employees differently. The question is when that treatment becomes discriminatory and illegal. The best rule of thumb for employers is to treat pregnancy like any other temporary disability, she said.

"Employers can have standards," Grossman said. "For instance, if the job requires the ability to lift 100 pounds, the employer can say that, but it can't single out pregnant women as being unable to do that."

A case in point: When Amanda Reeves, a Tennessee truck driver, was hired, she signed a document indicating that she was willing and able to do strenuous physical work. Three months later, she found out she was pregnant and requested light duty. The company denied her request because its light-duty policy applied only to workers (male or female) injured on the job.

The Sixth Circuit affirmed the trial court's summary judgment for Reeves's employer, Swift Transportation, because its light-duty policy treated pregnancy as a temporary disability. Swift had never deviated from its policy or offered light duty to anyone else whose injuries occurred off the job. The court found that the policy was "pregnancy-blind" and concluded that "no rational juror could find unlawful pregnancy discrimination on this record." (Reeves v. Swift Transp. Co., 446 E3d 637 (6th Cir. 2006).)

Grossman noted that many employers are not aware that pregnancy discrimination is illegal.

"It's not like sexual harassment or racial bias," she said. "Employers know the law about [those types] of discrimination. But they know very little about this one. If you asked most employers about pregnancy discrimination, they probably wouldn't have an answer--or not one that reflects the law." In that sense, she said, these lawsuits might have an "educative function."

Grossman added that employers' impulses are not always venal. "A lot of things employers do that are illegal are actually protective," she said. "You see this a lot in law enforcement-for instance, giving desk duty to pregnant police officers. It's a paternalistic impulse. Employers have to understand that these instincts will lead them astray."

Leonard agreed that some employers take a "kid-gloves approach" to pregnant workers. But he said more mundane management concerns are the big factor in most employers' actions. "They worry about the short-term effects--you know, is this person going to take a lot of time off, will they leave?" he said. "Every organization thinks that, when in reality women who have children are often even more grounded than they were before."