A prime job opens up, and the person who's discussed as an excellent choice happens to be on maternity leave for the next four months. She gets passed over. Is that legal? Well, it just happened at AOL and Techcrunch.
We won't rehash the drama over there, but let's just say there was a job opening at the top of very influential Silicon Valley-oriented blog, which played out in an unusually public way. Including this part, alleged by a writer who quit in protest of the way it was all handled:
"[Outgoing editor] Mike [Arrington] felt that current Senior Editor Sarah Lacy might be a better choice [for editor in chief]: she has the right personality - and sources - for the job and she actually lives in Silicon Valley (Erick [Schonfeld] is based in New York). Unfortunately she's also away for four months, on maternity leave."
A tipster read this and wondered whether passing someone over for a promotion while on maternity leave was a violation of the Pregnancy Discrimination Act. Lacy didn't respond to several requests for comment — it looks like she just had her baby in the past week — so we have no idea whether she even wanted the job, for reasons that could plausibly be unrelated to having a newborn. And anyway, it's unclear if Arrington's opinion ended up mattering much — he left the company and Schonfeld was given the position.
But let's take a look at the law. Ariela Migdal, a staff attorney in the ACLU's Women's Rights Project, points out that the point of the act, which amends the Civil Rights Act of 1964, is that employers may not treat women differently or worse because of pregnancy or maternity leave. But it also means that employers can treat them as anyone else who would be on leave for any other reason.
"They have to ignore your pregnancy, and treat you the same as other workers who are similarly situated in their ability to work," she told me — namely, ones on other types of leave. "You don't have any special protection from being fired or passed over for a promotion. And some courts have said that employers have to ignore the maternity or pregnancy aspect, but they can't ignore the absence." In other words, if it was absolutely necessary that the position be filled immediately, absence could be a plausible reason for not giving the job to a woman on maternity leave. On the other hand, an interim editor could always be appointed.
Some employees have argued in court that they've been fired because the employer assumes that when they return from maternity leave, the quality of their work will suffer. The Supreme Court said in a case upholding the Family Medical Leave Act that Congress was intending to address women's rights "to be free from gender-based discrimination in the workplace."
Fatima Goss Graves, vice president for education and employment at the National Women's Law Center, says, "Importantly, employers may not make assumptions about pregnant and caregiving workers — for example, an employer cannot assume that a pregnant woman or a working mother would be unable or unwilling to take a promotion that involved increased hours or travel. Instead, employers must evaluate pregnant workers based on their qualifications for the position, not their pregnancy."
As such, Migdal said, such cases tend to rest heavily on the specific facts of how an employment decision is made. We don't have all of those facts, and we don't have a lawsuit, but there's a key point here: "Employers have gotten to the point that they realize that blatant race discrimination can't be out there on the record," Migdal says, "But the same is not true about maternity and pregnancy related discrimination," which can even include women whom employers might assume could become pregnant in the future, even without any information suggesting it. "You see cases again and again where people say, 'This isn't a job for a mommy.' Employers haven't necessarily gotten the message that they may be liable under the Civil Rights Act."
A spokesperson for AOL said only, "Sarah is in charge of TechCrunch Disrupt in Beijing in October and is a very valuable member of the editorial leadership team."
Image by Steve Dressler.