"Under the Pregnancy Discrimination Act, employers cannot treat employees affected by pregnancy or related conditions differently from other employees similar in their ability or inability to work. "
When it comes to wishing there were an all-inclusive, national database of rights and resources by location and obligation for employers...THERE ALREADY IS!
It's called Pregnant at Work from our favorite rights and protections resource WorkLife Law. Check it out here:
PREGNANT AT WORK from WorkLife Law
So why have this chapter in the PAAL Handbook?
In sum, to this day:
Women and birthing people in our field are fired because they're pregnant.
It's often illegal and nearly always unethical and rarely a mutual, human, and supportive termination of employment.
So how does it keep happening? With loopholes like "change in appearance" clauses in the Equity contracts and lift requirements on crew and and the various at-will laws that exist in some states for freelance workers, discrimination persists in our field with its complex roles and expectations of jobs.
But that doesn't mean that it should stay that way.
Below, we outline some discriminatory true stories from the performing arts and media as well as highlight how reasonable accommodations have and can be applied to create a precedent and expectation of reasonable accommodation in the performing arts and media.
"The long-standing advice to actresses about pregnancy has been secrecy and silence. This 'don’t tell anyone' mentality to protect your career in our industry has created a culture where women are left feeling alone, ashamed, and afraid of losing their jobs."
- “Don’t Tell Anyone—A Call to Action for a Healthy Work-Life Balance in the Arts” | HowlRound PAAL Series
“I was told by two different companies that they wouldn’t interview me while I was evidently pregnant. Because what if the baby comes early or there are complications? I mean really. What if I were hit by a bus. For Pete’s sake.”
– Erin Koster, Stage Manager
In addition to the testimonials above, we've received multiple first hand reports of women who have had their freelance employment terminated because they were pregnant. In three of the most significant accounts we've received, the women had already begun the rehearsal process, had communicated openly with their directors, and had felt some support from costumes and design for accommodations.
In stories otherwise shrouded in incongruity, these testimonials have some elements in common, including that after rehearsals began, an individual with high status terminated their contract without discussion beyond explaining that it just wouldn't work and ending their contracts, reducing their much-needed and deserved health weeks.
As one lawyer put it, it occasionally becomes a "tension between artistic expression and the rights of pregnant women...if a director expresses [that the pregnant person doesn't] fit the image of what they want her to look like - is that grounds to allow someone not to get the role or continue in the role?"
Intersectional Realities, Bias, and Racism are Major Factors
Black, Indigenous, People of Color communities are most vulnerable, including during pregnancy, in all systems: social, medical, economical, professional.
"Black, American Indian, and Alaska Native (AI/AN) women are two to three times more likely to die from pregnancy-related causes than white women."
Pregnancy discrimination creates greater harm for Black, Indigenous, People of Color communities already experiencing oppression and race discrimination in social, personal, professional, and medical environments. Restorative Justice in pregnancy policies will center BIPOC voices in their own agency when creating and manifesting support during pregnancy and caregiving and all areas of health and sustainability.
Pregnancy is Gender Inclusive
While all pregnant people are marginalized genders, not all pregnant people are women. Pregnancy discrimination creates greater harm for transgender and non-binary pregnant people also already experiencing potential discrimination in social, personal, professional, and medical environments. Some individuals prefer the term "gestation" to pregnancy and should lead the conversation and language distinction terms of how to discuss their own experience.
While the linear nature of a handbook creates paragraphs that fall one after the other to identify the impact of the intersection of pregnancy, race, and gender, that does not mean that people who become pregnant fit into these paragraphs as "either-or" - human beings are intersectional and may need support and just policy that supports them as members of the trans, non-binary, and BIPOC communities. Creating policy that centers these experiences requires intention, education, and compassion.
Legal but Not Ethical Employment Termination
In an additional case, a pregnant person was cast as a character with a conflicting character description necessary for the plot of the piece. While this person had a challenge in arguing their termination due to the theater's potential reasoning based on the "undue hardship" of the physical impact on the "success" of the piece, the legal is not sufficient for accepting the situation.
The next question on the list, "Is it ethical?" Begs for comparison between the "undue hardship" of the play and the "undue hardship" on the pregnant person who was just terminated and now has unemployment and health insurance weeks missing.
We must make an appeal to humanity and better practices in our treatment of pregnant artists in complex situations, including crew backstage and performers on stage, and all disciplines in the company.
In the next section, we will take a look at two reasonable accommodations provided as examples for both crew and performer.
Hiring and Firing aren't the only ways that pregnant people experience discrimination. In our piece, 15 Stories: Pregnancy Discrimination in Theatre, we highlight 15 ways that pregnant and post-partum people experience harm in our field:
Colleagues express, directly or indirectly, that they expect the pregnant person to "disappear" from the field
Fired without reasonable accommodations or mediated problem solving
Illegal questions in interviews
Work Opportunities intentionally withheld
Toxic Language
Colleagues express, directly or indirectly, that they expect the pregnant person's professional capability to decrease
Left off the list for professional consideration
Colleagues will challenge their choices/question their work-life plans
Remove professional agency in decision-making at work
Betraying right to privacy
Perpetuating silence through Microaggressions, Macroaggressions, or Lack of Dialogue Altogether
Expected to "prove" professional relevance or capability
Lack of training/education of colleagues, union
Burnt bridges as a result of turning down a job
Perpetuating Shame Culture on Parents
Ways to Support | Call to Action: Harm Prevention and Protecting Pregnant Artists in Our Institutions
Educate staff on how to legally and compassionately support people as they experience abortion, pregnancy loss, fertility care, and other reproductive realities in the workplace.
Educate staff on the racial, gendered, and socio-economic class implications of lack of support or selective support in family planning and family formation
Create a written policy for your organization, committing to legal and ethical protection of pregnant people, family planning, family formations, and individuals with family responsibilities
Create legal, ethical, and compassionate mediations and conversations that center the needs of the pregnant person over the organization’s preconceived vision.
Make legal rights and resources readily available and visible for all staff and freelancers
Prioritize the real human over the character human and real human over the to-do lists or productivity flow
Create a list of reasonable accommodations to have on hand to support physical changes: list of low to no lift jobs for crew, list of due process for pregnant performers, including how you will advocate for them to other individuals, such as the playwright, director, producer, etc.
Reasonable Accommodations, Precedent of People-Centric Problem-Solving:
Pregnancy and Lifting Responsibilities on Crew:
"When I became pregnant I alerted the heads of the Lighting Department and Production Management that I would be unable to be on top of ladders, lifting above a certain weight, or painting. This was not a problem for six months of my pregnancy, and I successfully shop prepped, loaded-in and struck many large shows. There are always useful positions available on a crew (average crew 6-12 people per day) for a member who is not partaking in the activities I outlined above."
- Participant in PAAL Discrimination Survey on Positive Experience
Pregnancy in Performance:
"I told [the director I was pregnant], and he responded with "absolutely, we want you to play this role...is it okay if we loop in the costume designer? Because we generally talked and we don't want the pregnant to be, or we don't want the character to be pregnant. But we want to see if we can hide the pregnancy and, and do you mind if I tell one of the producers to we can add a little more budget to the costume budget so that we can alter the costumes as you grow?" And he was also like, you know, worst case scenario, you ended up showing a ton. Then he was like, we could make an announcement at the beginning of the show. That's like, the character of Betty too is not pregnant, but the act of playing her is. And how incredible it was - it was so beautiful to me [that he was willing to do that]."
- Adina Verson,
COLLECTIVE RAGE by Jen Silverman
Directed by Mike Donahue
"DO give [the pregnant person] more space, literally and figuratively. Provide a private place to rest. Offer [them] more frequent breaks, and more time to move between places and meetings.
If you have a parking lot, DO give [them] a reserved spot close to the entrance. Offer [them] a footrest. Ask [them] about specific accommodations [they] might need.
But DON’T assume [they] are incapable of doing something unless you ask [them] about [their] comfort level first. Pregnancy autonomy is especially important for our field’s production staff.
DON’T comment on [their] appearance, be the first to bring up [their] pregnancy all the time, or ask [them] if [they'll] be coming back to work after [they] have the baby. Just...don’t."
- Devon Berkshire, PAAL Steering Committee
Miscarriage/Pregnancy Loss
"Miscarriage is a related medical condition of pregnancy under the PDA. If an employer treats a worker differently because she has miscarried, for example, by refusing to accommodate her despite making accommodations for other workers, this violates the PDA. Your employer also cannot fire you, demote you, cut your hours, or penalize you in any way for having a miscarriage."
While the PDA only obligates organizations of 15 employees or more, the question should not be are we obligated to support pregnant people or create support for pregnancy loss, the question is what is the law and what is the ethical - and further, compassionate - space, time, and support to provide an individual who has experienced pregnancy loss.
"Here are some tips on supporting employees before, during and after pregnancy loss:
Create a supportive environment where employees can approach and speak to their line managers.
Have a policy in place to help everyone.
Be aware that time off for a miscarriage comes under pregnancy-protected leave. Make sure everyone knows this and it is applied. Taking time off for pregnancy loss must not affect someone’s sick record or be used against them for disciplinary or redundancy selection processes.
Take your lead from the staff member; ask them what they need and really listen. Sometimes small things make the difference.
Stay in touch but don’t pressure them to return to work.
Send them a link to the Miscarriage Association’s workplace resource.
Offer support to return to the workplace; again, ask what would help. Think about a phased return and any reasonable adjustments you might make. Do they do long shifts alone? Do they sit near a pregnant colleague? Might they like to change working patterns or sit elsewhere, if possible, for a while?
You also might ask if the staff member would like their colleagues to know or not, and share this information if they would.
Recognise that they may need ongoing medical appointments and make allowances."
Adina Verson also shared their experience with miscarriage while in a production. They mentioned that a natural result of miscarriage means that after the event passes, surrounding collaborators have moved on after two weeks, but for Adina, processing the event emotionally, mentally, and physically took months. Her collaborators showed support by acknowledging the natural process of grief as it arose and letting her lead the experience, allowing it to pass when it had passed - or not. She was still more than capable of work and was featured numerous times in New York Magazine and other media as a stand out role even though her personal journey carried the reality of loss. She attributes the success to the support of the room where her strength could thrive and flourish:
“People will always have stories outside the room. If [the miscarriage] was so serious that I felt like I couldn't be in the room, then I would quit. But if I'm there to serve the room, then we all have the same goal. I'm still me, and it's still enriching the play. As we move along, feeling safe is what makes it ok to ask what I need.” She also emphasized that her experience being individual may have different needs in another time or for another person."
- Adina Verson on the support received in COLLECTIVE RAGE by Jen Silverman
Directed by Mike Donahue