The Rules is a monthly series covering important regulations that have a large impact in the architecture, engineering, and construction profession.
Women remain noticeably underrepresented in architecture and design leadership and starting a family is one common pinch point in their career trajectory. Many leave the field entirely at this point or begin to see a stall in their career and compensation upon returning to work. The Pregnancy Discrimination Act of 1978 outlaws discrimination based on pregnancy or pregnancy-related conditions, yet many employers continue to shirk their responsibilities under the law.
Julian Burns King, a partner at King & Siegel in Los Angeles who specializes in women’s rights, says the PDA remains relatively weak in protecting pregnant women in the workforce and “absolutely horrible” in regards to maternity leave. The United States is the only developed country in the world that does not mandate or provide paid maternity leave. “Federal law still does not mandate accommodations for pregnant workers,” King says. “It only requires that, if accommodations are provided to non-pregnant workers, the same accommodations must be made available to pregnant workers.” Rather than strengthening women’s rights, she adds, the law inadvertently “encourages a race to the bottom. By denying everyone fair accommodations, you don’t have to accommodate pregnant workers.”
Pregnancy discrimination, which is a subset of sex discrimination, is not uncommon in professional settings. King largely sees it manifest in two ways. The first is “death by a thousand cuts” where a woman is taken off projects because of her pregnancy or her “schedule”—which might include medical appointments leading up to the due date and the maternity leave itself—and then denied bonuses and career growth opportunities because of the leave.
The second, more blatant form is leave-related termination or demotion, where a woman is fired or denied promotion when she returns to work because she has been replaced. King advises that women document everything—print out emails, take notes of dates and details, and save performance reviews—and address the discrimination directly. For example, King suggests they ask: “I noticed I am not on the big projects anymore since my leave. Why is that?” She acknowledges that “people may be afraid to have these conversations, but if you’re being pushed out, iced out, or effectively sidelined, why not? What do you have to lose?”
Some states offer additional protections for employees who are pregnant. California state law, for example, goes above and beyond the federal PDA. King recommends that employees research their jurisdiction’s laws beyond what their employer tells them. “Many human resources departments simply don’t bother to learn state laws, especially if the company is a national company,” she says. “It is shocking how often HR gives blatantly wrong information to our clients about their leave rights.”
“Recently we had a case that almost went to trial where the pregnant employee was fired after asking for a raise,” says Elizabeth "Bess" Masterson, an attorney and director at Kilgore Law, in Dallas. “After the jury heard the fact pattern and expressed disbelief that an employer would fire a pregnant employee who had not committed any misconduct but had merely asked for a raise like the male employees, the employer settled before opening statements were made.”
Employees should also be aware of their rights postpartum, Masterson adds. Employers may not fire, harass, or retaliate against employees for breastfeeding or pumping at work, which would also be considered pregnancy discrimination. Also, employees with at least one year of tenure at a company with 50 or more employees may be able to take up to 12 weeks of leave during pregnancy or after the birth of the child per the Family and Medical Leave Act, a federal law. Both mothers and fathers can take FMLA leave for the birth of a child.
In order to recruit and retain talent, some architecture firms have adopted officewide policies that explicitly support caregivers. In 2015, Perkins&Will instituted a paid parental leave policy that includes the birth, adoption, and fostering of children, says chief talent officer Meg Brown, who is based in Washington, D.C. “We were one of the first design firms in the U.S. to [do so],” she says. “This policy provides a new parent, regardless of gender, four weeks of paid time off.” For mothers, those weeks of paid leave are in addition to paid medical leave and the rights afforded in the FMLA. Since the policy’s inception, Brown notes, 174 new moms have benefited from it.
New federal protections for women in the workplace may be coming soon. The Pregnant Workers Fairness Act, which was recently reintroduced in the U.S. House of Representatives, would require employers with 15 or more workers to make reasonable accommodations for pregnant employees, including the provision of a stool and an extra bathroom break, limiting contact with certain chemicals, and a reduction in lifting requirements. King says this is a step in the right direction.
In early March, a proposal was introduced to add specific protections for sex-based equality in the Constitution. If successful, the U.S. Equal Rights Amendment would become the Constitution’s 28th amendment and a significant part of the larger movement toward women’s equality in the workforce.