The Pregnancy Rights of Employees
The Rights of Pregnant Women: Examples of Discrimination and What To Do About It
Federal and state law grants no special rights to pregnant women, but the law does oppose discrimination. Pregnancy is healthy and normal, but women often experience employment discrimination due to pregnancy, whether before, during, or after. In more recent years, the law strives to encourage employers to treat pregnant employees with the same accommodation offered to temporarily disabled employees.
Employee Rights of Pregnant Women
Pregnancy discrimination occurs anywhere in the employment relationship, from hiring to firing. In fact, an employer cannot base a decision for promotion or demotion based on pregnancy. Employees who may become pregnant or who are pregnant receive the same equal employment rights as any other employee.
- Protection from pregnancy discrimination
- Provision for pregnancy accommodation
- Freedom from a hostile work environment
- Same treatment as any other employee with similar capabilities
- Reasonable breaks for pumping breast milk
Pregnancy Discrimination Laws
Although pregnant women gain no extra benefits from the law, the law considers pregnant women to meet the requirements of a temporarily disabled employee. Of course, pregnancy is not a disability, but depending on the circumstances, a pregnancy may alter an employee’s ability to perform certain tasks during a short time period. Therefore, certain laws award consideration to pregnant employees.
Pregnancy Discrimination Act (PDA)
The Pregnancy Discrimination Act extends employment discrimination protection offered by Title VII of the Civil Rights Act of 1964 to all employees whether currently, previously, or potentially pregnant. PDA also offers protection to those who sustain a medical condition related to pregnancy or childbirth. Basically, PDA demands that employers treat women affected by pregnancy the same way other employees are treated who are similar in work abilities.
Title I of the Americans with Disabilities Act (ADA)
In 2008, the Americans with Disabilities Act expanded to more specifically include pregnancy under the umbrella of temporary disability. Although these protections only apply to companies with 15+ employees, this alters the protections offered to pregnant employees. After all, ADA obligates employers to offer reasonable accommodation to workers with disabilities, which now include the altered abilities that may accompany pregnancy.
Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act grants 12 unpaid, job-protected workweeks to eligible employees for serious health conditions, including problems related to childbirth and pregnancy. Also, postpartum conditions, adoption, and parental leave for childcare may qualify. However, only certain employees may qualify for FMLA due to their eligibility and the company’s eligibility.
FMLA Types of Pregnancy Leave
- Pregnancy leave due to serious health conditions
- Parental leave up to a year following the birth or adoption of the child
- Intermittent parental leave if employer approved
Affordable Care Act
The Affordable Care Act obligates employers to allow reasonable breaks to employees with a newborn to pump breast milk for up to a year following the birth. This also includes providing a private, secure area (not the bathroom). However, small companies who can prove undue hardship are released from this obligation.
Pennsylvania State Law: Pennsylvania Human Relations Act (PHRA)
On Pregnancy Discrimination
The PHRA maintains that employment discrimination based on sex is illegal. Therefore, the Pennsylvania Human Rights Commission further clarified that this law includes prohibition of company policies that exclude female workers from employment benefits due to pregnancy. In Pennsylvania, this law applies to employers with 4+ employees.
On Pregnancy Accommodation
Since the PHRA fights employment discrimination, the Pennsylvania Human Rights Commission includes that employers grant the same benefit and leave policies to employees with a disability due to pregnancy or childbirth as to employees with other disabilities. However, employers cannot force an employee to take leave due to childbirth or pregnancy.
How the Law Views Pregnancy in the Workplace
The law dictates that employers grant employment benefits to all employees equally whether affected by pregnancy or some other scenario that limits work abilities. Therefore, an employer must be uniform in light duty policies, leave rules, and medical benefits. All employees should be treated equally.
Light Duty Policies
If an employer provides light duty to other employees, the law obligates that employer to also extend light duty to a pregnant employee, if needed, as well. Light duty may include leave for a disability, unpaid leave, or alternate assignments. When an employer offers light duty to other employees but not to pregnant employees, the employer may struggle to justify this decision in the court of law.
Although an employer cannot force a pregnant employee to take leave while she is able to perform her work, an employer must permit a pregnant employee with limitations to take leave. Furthermore, the leave must offer the same conditions and terms offered to other employees with a similar inability to work. The law obligates the employer to return the job position to the pregnant worker at the end of the period of leave, according to the standard set for other employees who take leave for a similar reason or inability to work.
The Pregnancy Discrimination Act obliges employers with employee health insurance to provide coverage of pregnancy, childbirth, and related medical conditions. Also, the employer must extend the same terms and conditions to pregnancy-related benefits as to other medical conditions.
Examples of Pregnancy Discrimination
Although the law states that pregnancy discrimination is illegal, spotting discrimination can be difficult. While examples of discrimination are helpful, no situation is the same. As a result, speak with an employment attorney if you suspect that you have faced employment discrimination due to pregnancy.
Illegal Employer Activities
An employer may not partake in any of the following activities with an employee with any pregnancy-related condition. To do so violates the law.
An employer cannot…
- Discriminate against an employee who had or will have an abortion
- Refuse health insurance coverage for pregnancy when covering the cost for other medical conditions
- Ignore requests for reimbursement of pregnancy-related expenses when offering reimbursement for other medical conditions
- Discriminate against employees who may become pregnant
- Force an employee to take a leave
- Fire an employee for taking a pregnancy-related absence
- Withhold accruement of seniority, vacation, or pay from a pregnant employee on leave
- Demand a doctor’s note from a pregnant employee on work ability if this is not required for employees with other medical problems
- Refuse to hire or promote
- Ask interview questions that would not be asked of non-pregnant applicants
- Require a pregnancy notification unless serving a business purpose
Specific Discrimination Examples
Example of Interview Discrimination
During a job interview, the interviewer asked the Emily, “How many children do you have and are you planning to have more?” When Emily replied that she was actually five months pregnant, the interviewer told her, “Thank you for your time. Be sure to contact us after the birth of your child when you’re ready for employment.” Since Emily lost a chance of employment as soon as the interviewer knew she was pregnant, this situation may be actionable under the law.
Example of Termination after Pregnancy Announcement
Annie notified her boss of her pregnancy, and her boss immediately fired her. According to the law, the loss of a job based on pregnancy is illegal.
Example of No Reasonable Accommodation
Jaclyn restocks store shelves and receives shipments for her company. After becoming pregnant, she requests permission from her boss to no longer do any heavy lifting. Her boss says no. Jaclyn knows that another employee received permission to not participate in heavy lifting while recovering from surgery, but Jaclyn is forced to quit because she’s not given the same accommodation. Meanwhile, the law clarifies that it is illegal to make certain accommodations for some employees but not all.
Example of Pregnancy-Related Medical Condition
When Melanie discovers she’s pregnant, she takes time off for prenatal care. Her boss disciplines her for missing work even though another coworker receives no discipline for ongoing medical treatment. Since another employee receives medical treatment, the law states that Melanie is entitled to medical treatment as well.
Can my employer refuse my request for pregnancy leave?
Not if the employer offers medical leave for other temporarily disabled employees. However, if your employer does not offer leave to any other employee, then you may not be able to receive leave unless you qualify under FMLA.
I was pregnant, but I am no longer pregnant. Can I request leave to recover?
Once again, you may only receive leave if other employees with temporary disabilities, whether physical or mental, also have received leave from your employer. Moreover, you may need to prove your disability with documentation from your primary care provider.
Can a male employee take a pregnancy leave?
If an employer grants parental leave to female workers that is not related to a medical problem, the employer must offer the same to male workers. However, FMLA also permits male employees to take Pregnancy Related Leave if the male employee is the primary caregiver for a mother who has a serious pregnancy related issue. A male employee may also seek FMLA Parental Leave after a baby is born or adopted.
Proving Pregnancy Discrimination
The key to proving pregnancy discrimination existed in your employer’s employment decision balances on your ability to show that your employer treated you differently based on your pregnancy. Proving discrimination narrows down to the facts of your situation. No matter what legal strategy you take, your responsibility is to prove that your employer based an employment decision off of your pregnancy.
How to Prove Pregnancy Discrimination
When you decide to prepare a complaint of discrimination against your employer, you need to be able to provide information about the negative behavior you have experienced. You need more than an accusation to prove your case. Grab a pen and start taking notes about how to prove pregnancy discrimination.
1. Keep your ears open for direct evidence of discrimination.
Basically, this is when an employer openly admits that your pregnancy-related condition influenced an employment decision. Whether you copy your employer’s quote or save the email with the admission, document the event. When an employer makes this type of admission, you will have a much easier time proving discrimination occurred.
Bella, a pregnant yet highly qualified employee, applied for a promotion to a managerial position. When she heard that she hadn’t even been considered for the position despite her application, Bella asked for an explanation from the head of the hiring committee. The head of the committee replied, “Since you’re pregnant, I thought you’d regret the added responsibility of this job once the baby was born.”
2. Beware of circumstantial events and interactions
Although an employer might not admit to pregnancy discrimination, a pattern of behavior may illuminate its existence. This proof might look like a deviation from normal practices or not make good business sense. Moreover, analyze the past treatment of other employees who have been pregnant.
Two months before Lily’s due date, her manager fired her, saying that it was for performance issues. However, Lily knows that other coworkers usually earn warnings with a chance to improve performance rather than immediate termination.
3. Timing is everything
Since pregnancy is a temporary condition, any negative change in behavior from your employer should be noted. If the news of your pregnancy has altered your employer’s treatment of you, this could signal discrimination. Seek legal insight if you start to notice signs of discrimination.
The CEO at Megan’s company stopped by her office one afternoon and expressed surprise over her pregnancy. The conversation naturally moved to Megan’s plans post-pregnancy. After the CEO left her office, Megan didn’t think anything of it until she was terminated a week later.
If you have faced employment discrimination due to pregnancy, whether previously, currently, or soon-to-be, contact an employment lawyer because a lawyer knows your legal options. Better yet, a lawyer knows what circumstances are considered discrimination under the law.