Serena Williams recently returned to tennis after taking time off for her pregnancy, and she immediately faced questions on the extent to which her ranking should be affected by her pregnancy leave. The tennis world thus now faces an issue that has long stumped Corporate America: how to account for an extended child-related hiatus in measuring the returning employee’s job performance against employees who did not take leave. While many differences (legal and otherwise) exist between a professional athlete returning to their sport versus an executive coming back to work, certain core concepts overlap in both scenarios and how Williams’ return to tennis unfolds will undoubtedly offer some unique insights .
In the corporate setting, women returning from pregnancy-leave have long complained about being put on a “mommy track,” under which they no longer received profitable or high-profile projects and assignments. Or these returning employees were asked to wait significantly longer to get a promotion compared to other employees with less stellar performance (but who had not taken maternity/paternity leave). Similarly, the New York Times’ recent piece on pregnancy discrimination found that in corporate positions, “the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted at bonus season.”Various federal and state laws, including the Pregnancy Discrimination Act, Family and Medical Leave Act, and the Americans with Disabilities Act (which apply to corporate employees but not tennis professionals like Williams), generally dictate that an employer may not treat pregnant employees differently than employees with other medical conditions. And employers are usually required to hold open a job with the same reinstatement rights during pregnancy-related absences as it would for employees on sick or other types of leave. Likewise, the Pregnancy Discrimination Act makes it unlawful for an employer to take an action against an employee (for example, denying them a promotion) that is based on their pregnancy.
But what about in the tennis world, where players are numerically ranked and their seeding in tournaments plays a major role in the quality of their opponent? According to the Washington Post’s reporting:
The U.S. Tennis Association says it does intend to seed Williams for the U.S. Open, which begins in August. That is part of a new plan, first reported by The New York Times, to take into account if a pregnancy affected a player’s ranking. “Pregnancy will not be penalized,” USTA spokesman Chris Widmaier said. “If Serena Williams enters the 2018 U.S. Open, the USTA will recognize her accomplishments, recognize her return to the workplace and will seed her, regardless of what her ranking is.”
Given the zero-sum nature of rankings and seedings, however, not all players agreed with this decision. As the Washington Post noted:
One effect of Williams’ being seeded at the All England Club: The 32nd-ranked Dominika Cibulkova, a two-time Wimbledon quarterfinalist and the 2014 Australian Open runner-up, will not benefit from a seeding and could play anyone in the field in the first round. “I don’t think it’s the right thing to do,” Cibulkova told British broadcaster BBC ahead of Wednesday’s seeding announcement. “I think it’s just not fair.”
Cibulkova’s concerns echo criticisms that are sometimes heard about legal protections in place for pregnant employees at work. But Congress and the Supreme Court have recognized that, “[h]istorically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003).
Congress thus designed laws like the Pregnancy Discrimination Act to specifically counteract this “pervasive presumption,” and to push companies to better ensure that, in the words of the USTA, “pregnancy will not be penalized.” The methods used to prevent pregnancy-related leave from becoming a career obstacle continue to evolve in workplaces around the country, and how the tennis world navigates Williams’ return to work/tournaments will be worth noting in the corporate world.
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