KNOW YOUR RIGHTS
(Sep. 9, 2019) — Having a child is one of the most joyous experiences in life. However, pregnant women and nursing mothers are not always treated well at work. While this may not always reach the point of discrimination, it is important to know your rights and which types of action could give rise to a discrimination claim.
What is Pregnancy Discrimination in the workplace?
Pregnancy discrimination at work occurs when an employer treats an employee or an applicant unfavorably because of their pregnancy or any other childbirth-related condition.
While this type of discrimination is blatantly illegal, it is still prevalent in the United States. According to the New York Times, 3,184 pregnancy discriminations were filed with the Equal Opportunity Employment Commission in 2017, twice as many cases as there were in 1992 when the commission began keeping electronic records.
A recent study conducted by the Equality and Human Rights Commission revealed that most workplace pregnancy discrimination instances go unreported and the cases could be as many as 54,000 women per year.
Laws that Cover Pregnancy Discrimination
Pregnancy discrimination is illegal under federal and many states law. The two main federal laws that cover pregnancy discrimination at work are; Pregnancy Discrimination Act under Title VII of the Civil Rights Act (Title VII) and the Family and Medical Leave Act.
Title VII of the Civil Rights Act covers any type of discrimination in the workplace on the basis of sex including unfair treatment in; hiring, firing, wages, promotion, job assignments, training, layoffs, retirement policies, leave, health insurance and any other term of employment. The Congress in 1978 enacted the Pregnancy Discrimination Act to clarify that discrimination based on pregnancy and child-related conditions is also considered sex discrimination under Title VII.
The Pregnancy Discrimination Act requires every employee to treat pregnant women, women with a pregnancy-related condition and women who gave birth recently in the same manner as any other employee or applicant with the same ability.
The Family and Medical Leave Act requires employers with over 50 employees to provide employees with job-protected leave to recover from pregnancy-related conditions. Employees can get up to 12 weeks of unpaid family leave. This law also applies to men and new fathers, who can take leave to care for their newborn or newly adopted child.
Another law that protects pregnant women is the Americans with Disabilities Act (ADA). According to the ADA, pregnancy-related conditions such as childbirth and recovery from childbirth can be classified under temporary disability. The act requires employers to give pregnant employees the same benefits as employees with temporary disabilities, for instance, the same rights as employees who are recovering from surgery.
Most states have their own laws to reinforce the illegality of pregnancy discrimination at work. For instance, New York State law covers more cases than the Federal law and guarantees pregnant employees with paid family leave (PFL) for employees to bond with their newborn child.
If you feel your employer has broken the law a New York discrimination attorney can help you seek compensation and assert your rights in the workplace.
Common Forms of Pregnancy Discrimination in the Workplace
Common examples of pregnancy discrimination in the workplace include:
- Refusing to hire or promote a pregnant woman or a new mother
- Demoting or firing a pregnant employee or a new mother
- Denying an employee to return to her original job on return from a pregnancy-related leave
- Failing to give a pregnant woman the same health insurance coverage as other employees
- Failing to give a male employee similar health insurance coverage because the wife is pregnant
- Singling out a pregnant employee or a new mother to be laid off
- Inappropriate comments by managers or colleagues about an employee’s pregnancy
- Intimidating or harassing a pregnant woman or a new mother
- Creating a hostile work environment for a pregnant employee
- Penalizing or failure to pay an employee for any pregnancy-related leave
- Failure to allow the same training and career development opportunities for pregnant employers or new mothers as other employees
- Treating a pregnant woman differently than any other temporarily disabled employee such as requiring them to lift heavy boxes.
Who Is Protected Against Pregnancy Discrimination at Work?
Any employee with a current, past, potential/intended pregnancy and any condition related to the pregnancy or childbirth is protected against discrimination under Federal law.
The Pregnancy Discrimination Act prohibits pregnancy discrimination by employers with over 15 employees while the FMLA covers employers with over 50 employees. The New York State Human Rights Law covers more cases as it prohibits pregnancy discrimination by employers with 4 or more employees.
Do I Have To Disclose My Pregnancy To A Potential Employer?
You are not legally obligated to tell potential or future employers if you are pregnant. A potential employer may not refuse employment to a pregnant applicant or an applicant with childbirth-related conditions, so long as she can perform the basic functions required in the position.
A potential employer cannot ask a qualified applicant whether or not she is pregnant or how many children she has. Similarly, if the applicant is already showing, a potential employer cannot ask them to come back once they have had their child.
Do I have to tell My Employer If I am Pregnant?
You don’t have to tell your employer if you are pregnant. In fact, most employees choose to keep it to themselves until they start showing. At some point, you may have pregnancy-related sickness, need pregnancy-related medical leave or require lighter work. You may choose not to share that information if you don’t need medical visits and can perform your job perfectly. It’s important to note that you have to give your employer notification before proceeding for your maternity leave.
Can My Employer Prevent Me From Working?
Both the Federal law and the New York State law explicitly prohibit an employer from making assumptions about whether an employee can perform their job. The rule of thumb is if an employee is capable of doing their job while pregnant, they must be allowed to do so.
What Should My employer Do to Provide for My Health and Safety at Work?
Your employer must ensure that your working conditions do not endanger your health or that of your baby. It is unlawful for your employer to treat you unfairly or dismiss you because of health and safety concerns related to pregnancy or other childbirth-related conditions.
Your employer should provide occasional breaks for resting or drinking water, restrict heavy lifting, ensure you can sit down, and reassign you from hazardous duty without prejudice or any unfair treatment.
Your employer cannot take any actions towards protecting the health and safety of you and your baby until you have made a notification in writing informing them of your pregnancy. It will be considered as pregnancy discrimination if your employer assumes your ability to perform certain functions and alters your working conditions. To this end, your employer can ask you to submit a doctor’s statement suggesting that you be exempted you from certain functions in your job.
Pregnancy and Parental Leave
Under the Family and Medical Leave Act, employees can get up to 12 weeks of unpaid family leave for pregnancy-related conditions and for them to care for their newborn.
Employers must treat leave requests related to pregnancy disability in the same manner as they would employees with temporary disabilities. Therefore, if an employer asks employees with a temporary disability to submit a doctor’s before granting leave, the employer may also require an employee with a pregnancy disability to submit a doctor’s statement as well before granting them leave.
Your employer cannot prevent you from returning to work while on pregnancy leave and should hold open the job for you the same length as they would any other employee with temporary disability.
When requesting for you any accommodation or leave do so in writing and keep all the copies in case your leave is denied and you may want to file of a grievance with a New York discrimination attorney.
Should I be paid during My Pregnancy or Parental Leave?
If an employer provides benefits to other employees while they are on leave, they must also provide the same benefits to women on leave for pregnancy and childbirth-related conditions.
An employer must also provide the same employees with pregnancy disability the same benefits as other temporarily disabled employees. For instance, if an employee with a temporary disability due to surgery receives paid leave, the same benefits must be provided to women with pregnancy disability or childbirth-related conditions.
The New York Paid Family Leave Policy (PFL) unrolled in 2018 is one of the most progressive family focused-benefits in the country. The policy guarantees New Yorkers in the private-sectors up to 10 weeks of partially paid parental leave. The PFL ensures that an employee is paid 50% of their average wages.
Should My Employer’s Health Insurance Cover My Pregnancy?
According to The Affordable Care Act, employers with more than 50 employees are required to offer health insurance benefits to their employees. The health insurance provided by your employer must also cover pregnancy-related conditions exactly as other medical conditions.
What are the Remedies for Pregnancy Discrimination in the workplace?
The court may award several remedies to victims of pregnancy discrimination depending on the wrongful act of the employer.
Some of them are:
- Hiring – Employers who refused to hire an applicant because of pregnancy may be ordered to hire the applicant
- Reinstatement – an employer is ordered to reinstate the employee to their original position.
- Back pay – the amount of money an employer owes an employee for wrongful termination. The amount is calculated back from the date of termination.
- Front pay – paid when the employee cannot return to her original position due to a hostile environment created by the employer
- Compensatory damages – payment for pain and suffering
- Punitive damages – awarded to punish the employer
- Attorney’s fees and court fees – payment to allow the employee to recover the fees of their attorney and any other fees associated with the lawsuit
What Should I Do to Get Ready to file a lawsuit?
Keep records of the incident as soon as possible, such as the time, date, exact place, who was there, what was said, and keep these notes at home. Records of your work may also be helpful in case your employer defends their wrongful actions by criticizing your performance. It’s therefore important to keep any letters, memos, and appraisals that demonstrate your good performance at work.
Pregnant employees and nursing mothers should be treated equally in the workplace and if not, they have the right to defend themselves. Women can take a stand to safeguard their rights by knowing about pregnancy discrimination at work and exactly when an employer crosses the line.
If you feel your employer or potential employer has discriminated against you because of your pregnancy or childbirth-related condition, contact a New York discrimination attorney to you help you recover compensation as soon as possible.
Sharon Rondeau has operated The Post & Email since April 2010, focusing on the Obama birth certificate investigation and other government corruption news. She has reported prolifically on constitutional violations within Tennessee’s prison and judicial systems.