Three professional runners recently spoke out against Nike for the way it treated them during and after their respective pregnancies: Alysia Montaño, Allyson Felix, and Kara Goucher. If you’ve followed these stories, you may be wondering how an international corporation like Nike can get away with these seemingly obvious cases of pregnancy discrimination. I’ve been clerking for a Plaintiff’s employment law firm for over a year, and I’ve done a decent amount of research on Title VII pregnancy discrimination claims. I’m going to break each legal option down for our readers, but please know that I am not an attorney at this time, and this post does not constitute legal advice. If you feel that you are being discriminated against for any reason, please consult an employment attorney.
The main issue surrounding pregnancy is the amount of time that women need to take off work for childbirth and recovery, as well as bonding with their newborns. While pregnancy-related illnesses, childbirth, recovery, and infant-caretaking are very separate phenomena, they are often lumped into one category for legal purposes: maternity leave. Generally, there are three basic avenues for women seeking legal protection during pregnancy. Those include Title VII claims, Family and Medical Leave Act (FMLA) claims, and state anti-discrimination laws. Pregnant employees can usually rely on these avenues when their employers do not have an internal maternity leave policy.
Title VII is part of the Civil Rights Act and prohibits employment-based discrimination for protected classes such as race, sex, and religion. Within Title VII is the Pregnancy Discrimination Act (1978), which prohibits discrimination based on pregnancy and related conditions. This includes illnesses induced by pregnancy, childbirth, and recovery from childbirth. Under Title VII, to prevail on a pregnancy discrimination claim, a pregnant plaintiff generally must show that she was qualified for her position, an adverse employment decision such as a termination or a demotion occurred, and a connection exists between her pregnancy and the adverse action. Sounds like a dream, right?
Unfortunately, law is never that straightforward. The Civil Rights Act is federal law, so it only applies to eligible employees and employers. Independent contractors are generally not considered employees under such laws. This type of Title VII pregnancy claim would apply to a cashier working in a Nike store, but it does not apply to Alysia Montaño, who is a professional athlete and independent contractor. Further preventing disclosure of the working conditions of professional athletes, non-disclosure agreements in contracts often prohibit athletes from speaking out against such injustices during their sponsorships.
Family and Medical Leave Act (FMLA)
Another option for eligible, pregnant employees, and not contractors, is leave under the Family and Medical Leave Act. FMLA leave is job-protected leave afforded to those needing medical leave or for caretaking purposes (hint: dads can take it too!). Job-protected leave means that an employer may not penalize its employee for taking such leave, and the employee must be reinstated to an equivalent position upon return from leave. In other words, a woman on maternity leave under the FMLA cannot be replaced while she is out or demoted upon return. The major downside to FMLA is that the leave is almost always unpaid.
State Pregnancy Discrimination Laws
Some states have enacted their own laws about employer obligation to provide an expectant mother with maternity leave. Ohio, where I work, has stated that employers lacking FMLA eligibility or another maternity leave policy must offer new mothers a “reasonable” amount of time off. Reasonable is the ultimate legal standard, and there is much to debate as to its meaning in every situation. Again, such state laws do not guarantee pay for mothers on maternity leave.
So what’s a pregnant pro runner to do? Ultimately, it’s up to the employer to provide independent contractors with options surrounding pregnancy and maternity leave.
Thanks in large part to public outcry surrounding these women speaking out, Nike has committed to changing their pregnancy policy in future athlete contracts. However, the disparate treatment that Montaño, Felix, and Goucher faced is not unlike what everyday women face in their professions: leave without pay. That is the unfortunate norm here, where the absence of federally mandated maternity leaves many pregnant employees scrambling for options.
Will these women telling their stories lead to industry-wide change for professional runners? It’s too soon to tell, but it looks like the harsh glare of the spotlight may be making a difference for future generations.