Originally from:

AAA Handbook on Employment Arbitration and ADR - Third Edition

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I. Introduction

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 chapter examines how arbitrators have construed collective bargaining agreements in grievances involving marriage and pregnancy.

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.