Motherhood: Arbitral Thought on Employment Discrimination Based on Marriage and Pregnancy

Dispute Resolution Journal, Aug-Oct 2005 by Dilts, David A, Samavati, Hedayeh

A look at how employers used pregnancy and marriage as grounds to terminate female employees and the developments in federal law-the Civil Rights Act of 1964, the Family Medical Leave Act, and the Americans with Disabilities Act-that led unions to negotiate protections for women in their collective bargaining agreements.

Apple pie, motherhood and Chevrolet are supposedly icons of American life, or so says the General Motors advertisement. However, it is not so clear that apple pie is all that good for you and the Chevy is not selling as well as some foreign cars. Which makes one wonder just how well working mothers are faring in the workplace. Are they doing well or are they discriminated against because of their marital status and ability to give birth, some of the most overlooked issues in the arbitration literature. In an attempt to fill the gap, this paper examines how arbitrators have construed collective bargaining agreements in grievances involving marriage and pregnancy.1

The Civil Rights Act of 19642 makes it improper for employers to stereotype women based on their gender, a characteristic beyond their control. Nevertheless, women, who now make up slightly more than 50% of the U.S. population, are still subjected to illegal discrimination at their place of employment (as opposed to being denied employment in the first place) because of their ability to give birth.

Gender may be considered by employers only if it is a legitimate occupational qualification for the routine operation of the business.3 In other words, female employees who are qualified and able to perform the job may not be precluded from doing so.4 Conversely, if a woman is unable to perform the work (either because she is not strong enough or she would be subjected to hazardous substances that could harm her unborn child), either permanently or temporarily, the employer may take these gender-related facts into consideration.

Grievances alleging gender discrimination can involve claims that a female employee was denied a promotion or a partnership because she is female, has children, is pregnant, or could have children in the future. They also can involve claims that male employees received preferential treatment with respect to wages or seniority matters for the same reasons, or that she was terminated or subject to discipline because of the need to care for her children.

Female Flight Attendants and Teachers

During the 1960s and '70s, marriage and motherhood were considered serious liabilities for women who wished to become flight attendants on commercial airlines. (Flight attendants were then often referred to as "stewardesses" and "stewards.")

At that time, the majority of airline customers were businessmen, so the airlines hired pretty young women to serve drinks and food on airline flights, not women we think of as homemakers and mothers. The airlines used images of sexy young female flight attendants in their advertising to attract new male customers. (There was little or no advertising directed at women.) To maintain this image, they restricted female flight attendants from marrying or becoming pregnant. New hires were required to represent that they would remain single while employed by the airline, or would give up their job when they became pregnant.

In the late 1960s, there were a series of grievance arbitration cases pitting flight attendants against the airlines. In a case involving Western Airlines,' the labor agreement permitted management to discharge their flight attendants for pregnancy. When management discharged the grievant under this provision, she filed a claim with the Equal Employment Opportunity Commission (EEOC), which sent her a letter stating that the discharge was probably contrary to the Civil Rights Act of 1964. Despite the violation of public policy embodied in federal civil rights laws, the three-member panel of arbitrators upheld the discharge, reasoning that as a creature of the contract, the panel had no authority to overturn the discharge.

The Western Airlines case was by no means an aberration. It was common in the airline industry to find collective bargaining agreements that provided management with specific authority to discharge female flight attendants when they became pregnant. These agreements even authorized discharge six months after a flight attendant married. The employers' rationale was that it would be a waste of time and money to train women for these jobs because once they married, they could be expected to become pregnant and then leave the job.

Unfortunately, it was common for arbitrators to uphold discharges based on marriage and pregnancy/ Arbitrators allowed these discriminatory attitudes toward women to continue and their decisions no doubt perpetuated the airlines' use of these provisions.

Other industries that predominantly employed women, like public education, were similarly insensitive to women's rights. For example, collective bargaining agreements with teachers commonly called for teachers to give up their jobs at some point during pregnancy.