The Motherhood Penalty
August 12, 2025
By Isabelle Silva
The Law Students on Workers’ Rights series publishes essays from current and incoming students from top law schools across the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What is the most significant challenge facing workers’ rights, and what role should employment attorneys play in addressing that challenge?”
Pregnancy discrimination, or the “motherhood penalty,” is the most significant challenge facing worker’s rights.
The Pregnancy Discrimination Act “prohibits the discrimination in employment because of sex and . . . on the basis of pregnancy.” The PDA aims to ensure that employers treat “pregnant women and women who may become pregnant . . . the same as other employees.”
Prior to the PDA’s enactment, the Supreme Court of the United States decided two seminal cases, Geduldig v. Aiello and General Electric v. Gilbert. Siding with the employer in both revealed SCOTUS’ inability to protect pregnant employees despite gaps in the legislature. Congress passed the PDA in 1978, superseding such misguided opinions.
More recently, the Pregnant Workers Fairness Act deems it unlawful for a covered employer to “not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee,” absent a showing of undue hardship to the employer. Still, however, these accommodations do not go as far as support for the mother after pregnancy.
Yet, sex discrimination persists in the workplace. A 2019 New York Times article outlines the harsh reality of the ‘motherhood penalty’ for female employees from retail companies like Walmart to pharmaceutical giants like Merck. Indeed, pregnant women are often “knocked off the professional ladder.” A 2014 University of Massachusetts Amherst study revealed that “each child chops 4 percent off a woman’s hourly wages.” In contrast, “Men’s earnings increase by 6 percent when they become fathers.”
The most recent victim of the ‘motherhood penalty’ is WNBA three-time All-Star Dearica Hamby. In June of 2022, Hamby signed a two-year extension with the Las Vegas Aces. Hamby discovered she was pregnant in July of 2022. She informed the head coach, Becky Hammon, and the Aces’ general manager, once the pregnancy was confirmed.
After making a public pregnancy announcement, Hamby was told to “vacate housing.” Hammon accused Hamby of failing to take “proper precautions” to not get pregnant, and questioned her commitment to the team. Then, the Aces traded Hamby to the Los Angeles Sparks. Stunned, Hamby inquired to the WNBA to investigate. This internal investigation found that the Aces had retaliated against Hamby.
Hamby filed a federal lawsuit against the WNBA and the Aces in August 2024 alleging intimidation, discrimination, and harassment over her pregnancy. This case could set precedent important for employment law in the context of pregnant athletes. It could also answer the legal question of “whether a player trade can cause an injury the law ought to protect.”
To implement shutting down the motherhood penalty, employment attorneys must act as strong advocates for athlete mothers in negotiations of their player contracts, sponsorship deals, and focus keenly on any related issues. They can educate their clients about their rights under the PDA and PWFA in the negotiating room. This would better prepare them for contractual agreements and hopefully improve working conditions for these athletes.
Reflections from Charles Joseph
Many women fear retaliation after telling work that they’re pregnant. That’s a big sign that workers need stronger pregnancy discrimination laws – and that employment lawyers need to fight for those who experience pregnancy discrimination.
As Silva argues, pregnancy discrimination can occur on the most public stages, such as in the WNBA. That makes it even more critical for people to know what counts as pregnancy discrimination and how to protect their rights.
Isabelle Silva is a rising 3L at the University of New Hampshire Franklin Pierce School of Law studying employment law and business law. Contact Silva on LinkedIn.
Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $200 million for clients.