Pregnancy discrimination in the workplace is an intractable problem, one that has resulted in a startling number of claims each year to the EEOC – rising at a faster rate than women are joining the workforce – and increased media attention.

What do these statistics capture? As a threshold matter, we can be confident that EEOC charges represent only a tiny fraction of instances in which a worker actually experiences bias based on her pregnancy. Research firmly establishes that most workers who experience discrimination never take any formal action or seek redress of their injuries. But does the increase in complaints reflect a rise in the incidence of pregnancy discrimination, or simply greater awareness by employees of their legal rights? Probably both. A sixfold increase in monetary payouts related to EEOC charges – from $5.6 million in 1997 to $30 million in 2007 – suggests greater enforcement or a greater percentage of well-founded complaints. And the $30 million figure does not even include damages awarded in subsequent lawsuits.

At the same time, however, there is reason to think the rise in complaints also reflects greater awareness of rights against pregnancy discrimination. As a recent Wall Street Journal article reports, nonprofit advocates for women have been receiving increasing numbers of calls for assistance with problems of pregnancy bias or discrimination. Among other things, however, these calls indicate workers’ confusion about their legal rights. Some erroneously believe they have a right to paid childbirth leave. Others erroneously believe that no adverse employment action (such as firing, demotion, or a decrease in pay) can be taken against a pregnant woman. Others are not sure whether they are entitled to return to the identical position they previously occupied at work after an approved pregnancy or childbirth leave.

Greater awareness, greater confusion, and more discrimination all call for the same remedy: greater clarity on the law of pregnancy discrimination. The EEOC has responded to this need with a new Enforcement Guidance on pregnancy discrimination – its first in several decades – to explain its interpretation of applicable statutes. This chapter explains key aspects of the guidance as well as its potential relevance to Young v. UPS, a pregnancy discrimination case currently pending before the Supreme Court.