Legal Guide to Pregnancy Discrimination in the Workplace in 2019
What is pregnancy discrimination?
Treating women employees or job applicants unfavorably because they are pregnant or have a medical condition/s related to childbirth or pregnancy amounts to pregnancy discrimination in the workplace.
Examples of pregnancy discrimination in the workplace
Pregnancy discrimination in workplace cases come in many forms. The main ones include:
- Discrimination in hiring, firing, promotions, etc.
- Lack of accommodation
- Denial of right to maternity/parental/pregnancy leave
- Denial of additional rights under the FMLA
I. Discrimination in hiring, firing, promotions, etc.
If you are denied employment or fired after getting pregnant, such actions translate to pregnancy discrimination. The same applies to being given unfavorable job assignments, being denied training, fringe benefits, leave, health insurance, among other benefits, terms or conditions accessible to other employees, just because you are pregnant.
II. Lack of accommodation
The law requires employers to accommodate pregnant women to allow them to perform their duties easily and safely. In fact, pregnant women should be treated like temporary disabled employees. They should be given alternative assignments, lighter duties, disability leave, or unpaid leave if the employer offers such terms to temporarily disabled employees.
Impairments associated with pregnancy like preeclampsia and gestational diabetes can be treated as disabilities under the ADA. Employers may be obligated to provide reasonable accommodation like leave or modifications allowing employees to do their job. The ADA amendments make it easy for employers to determine which conditions are covered.
Pregnancy harassment in the workplace is prohibited. Pregnant women who are job applicants or employees are also protected from harassment related directly to pregnancy or indirectly to medical conditions associated with pregnancy or childbirth. Harassment is prohibited, especially when it is frequent and severe to the extent of creating a hostile working environment or if it leads to negative employment decisions such as pregnant women being demoted or fired. The law covers all sources of harassment i.e., from a victim’s supervisor or manager in the company to co-workers and clients/customers.
IV. Denial of right to maternity/parental/pregnancy leave
The right to pregnancy/paternal/maternity leave is protected by law under the PDA (Pregnancy Discrimination Act). If an employer allows employees who are temporarily disabled to take leave, the same leave should be extended to pregnant employees. Employers are prohibited from singling out specific pregnancy-related conditions as a basis for determining if a pregnant employee can work. Instead, employers should make decisions based on a doctor’s statement concerning an employee’s ability to continue working when they are pregnant.
The FMLA (Family & Medical Leave Act) gives new parents including adoptive and foster parents (a right to 12 weeks (3 months) unpaid or paid leave if an employee has earned it or accrued it. The leave is accessible to employees who have worked for at least a year (12 months) for an employer who has the applicable no. of employees. For instance, if you are working in the private sector, your employer must have 50 employees or more. The employees should also be at work for at least 20 workweeks.
V. Denial of additional rights under the FMLA
The FMLA provides pregnant women with additional rights enforced by the United States Department of Labor. For instance, nursing mothers are allowed to express milk at work under the Fair Labor Standards Act guidelines. They should also be given reasonable break time and are protected from retaliation if they file a complaint/s against employers.
Pregnancy discrimination in the workplace statistics
According to the latest pregnancy discrimination charges data filed with the EEOC between 2010 and 2018, there has been a decline in charges. In 2016, 2017 and 2018 for instance, the number of pregnancy discrimination charges filed was 3,486, 3,174 and 2,790 respectively. Like most discrimination charges filed with the EEOC, most pregnancy discrimination charges are dismissed because of administrative closures and no reasonable cause.
Only 10.4%, 9.4% and 9.6% of charges filed in 2016, 2017 and 2018 ended up in settlements. 77.8%, 78.4% and 76.8% of charges in 2016, 2017 and 2018 respectively were dismissed because of administrative closures and no reasonable cause (technicalities which can be avoided by seeking legal help/advice from a workplace discrimination lawyer). Monetary benefits from pregnancy discrimination charges are generally the same ranging from $14 to $16 million in the past eight years.
No reasonable cause is the largest cause of charge dismissal. In simple terms, the EEOC found 60%, and above of all pregnancy discrimination charges filed lacked sufficient evidence. This finding highlights the importance of evidence collection in the plight to win a pregnancy discrimination claim filed with the EEOC. Involving a pregnancy discrimination lawyer in the early stages of discrimination is therefore critical if you want to collect evidence which will be admissible in court.
Important: Cases of pregnancy discrimination should be recorded immediately as they happen. You should record the perpetrators, time, place, and witnesses. Recorded evidence is crucial. You should keep emails or any other forms of recorded evidence that can prove discriminatory action from an employer, supervisor, co-worker, or client. If the discrimination is ongoing and you keep collecting evidence, it will be easier to sustain the charge. Hire a workplace discrimination lawyer if you are not sure how to collect and preserve evidence.
Pregnancy discrimination in the workplace laws
Pregnancy discrimination is covered extensively by the PDA, although there are other laws like the ADA and FMLA as well as local and state laws that offer various protections. However, our focus here is on the main law i.e., the PDA.
What does the Pregnancy Discrimination Act cover?
It’s important to note that the PDA is applicable to employers who have 15 employees or more. The Act covers:
- Firing based on pregnancy
- Harassment because of pregnancy or pregnancy-related conditions
- Accommodations to discharge duties while pregnant
- Right to altered duties
- Right to unpaid leave if you can’t work
- Right to benefits even if you are not married
1. Being fired because you may become pregnant or are already pregnant
Under the PDA, your employer can’t fire you because you are pregnant, was pregnant, intent to be pregnant or because you have a condition related to pregnancy. The law also prohibits firing because of abortion or considering an abortion.
The law protects you from being fired, denied a promotion or job, being demoted, or being forced to take a leave or resign because of the above reasons. Under the PDA, employers are obligated to assign you to a job/task you can safely execute if need be. However, your employer can’t force you to go on leave or terminate you based solely on the belief that your pregnancy poses a risk to you. Such actions must be backed by a medical exam.
2. Harassment because of pregnancy or pregnancy-related medical/health conditions
Both the ADA and PDA prohibit harassment of any kind directed to pregnant women or women believed to have pregnancy-related health conditions. The PDA requires victims of harassment to report immediately to management as per your employer’s reporting guidelines. Employers are obligated to take action after receiving harassment reports.
3. Accommodation to discharge your duties
If you are having problems doing your job because of pregnancy, the PDA obligates your employer to accommodate you. For instance, you are entitled to flexible working schedules that allow you to take regular breaks, change shifts accordingly, and get permission to go for medical checks or rest as instructed by your doctor. If your employer has accommodations for employees with limitations (such as disability), you are entitled to similar accommodations.
4. The right to altered duties when you can’t do your regular job
If your doctor deems it unsafe to continue doing your job and recommends lighter duties, you must consider this after all accommodations are in place. In some cases, medical professionals aren’t aware of the extent of accommodation demanded from employers by law. Your employer should reduce workloads as well as offer reassignments if need be. However, they can’t reduce pay simply because you need to be accommodated to do the job you normally do.
If you can’t perform even with accommodation, you have the right to altered job duties. Depending on how an employer treats other non-pregnant employees with limitations, the law requires employers to give pregnant employees the same accommodations given to employees with limitations, including removing essential functions or temporary reassignment.
5. The right to unpaid leave if you can’t work
If you are unable to work and you lack benefits like paid leave, you can qualify for accommodations such as unpaid leave. This means you get to keep your job until you are fit to get back to work. The PDA offers this protection. Other laws like the FMLA also give you a right to unpaid leave.
6. The right to benefits regardless of your marriage status
All pregnancy-related benefits should be given to all pregnant employees, whether they are married or not.
Pregnancy discrimination cases 2018 and 2019
In the recent past, we’ve seen some heft settlements for pregnancy discrimination related cases. Here are a few notable pregnancy discrimination cases in 2018 and 2019:
- Arizona Health Companies
- A Plus Care Solutions
- Family HealthCare Network
- Absolut Care
1. EEOC v. Arizona Health Companies
In 2019, Ascension Health and Carondelet Health Network, companies which own and operate three Arizona hospitals have been ordered to settle a lawsuit and pay $545,000 and offer relief. According to the EEOC lawsuit, the health companies discriminated against six employees who were pregnant and those with disabilities. The companies refused to offer reasonable accommodations such as reassignments, extended leave or assisted devices and discharged pregnant employees unable to return to work after 90 days. The Arizona health companies are guilty of failing to offer reasonable accommodations as per the PDA and ADA.
2. EEOC v. A Plus Care Solutions
In 2019, A Plus Care – a healthcare company in the business of supplying direct professional caregivers to persons with disabilities agreed to settle a lawsuit and offer injunctive relief. The $200,000 settlement was due to pregnancy discrimination charges brought forward by the EEOC. The suit, which has been active since 2010 stated that A Plus required female employees to agree to a pregnancy policy as part of the employment terms. The policy forced pregnant employees out of work after the 5th month despite their abilities to continue discharging their work duties.
A Plus violated the PDA through discriminatory policies against pregnant employees. The company’s actions resulted in a $200,000 settlement. Moving forward, A Plus won’t be able to terminate employees because of pregnancy. The company has also withdrawn its discriminatory policy barring women employees from working after the 5th month of pregnancy. The company must also review company policies and procedures as well as train executives on anti-discrimination.
3. EEOC v. Family HealthCare Network
In 2018, Family HealthCare Network agreed to a $1.75 million settlement for a disability and pregnancy discrimination lawsuit. According to the EEOC, the company had failed to offer reasonable accommodation and fired employees because of pregnancy and disabilities. According to the lawsuit, Family HealthCare had rigid leave practices and policies that denied reasonable accommodations to pregnant and disabled employees. The company denied additional leave and fired pregnant and disabled employees who failed to work within the existing leave policy. In some instances, Family HealthCare could discharge employees before they utilized their entire leave days and even refused to rehire employees who returned to work after utilizing their leave.
4. EEOC v. Absolut Care
In 2018, Health care facilities family, Absolut Care LLC, was ordered to pay $465,000 as settlement for a disability and pregnancy discrimination lawsuit filed by the EEOC. According to the suit, Absolut Care denied its disabled workers the right to go back to work unless they did so without any health/medical restrictions. The employees were also subjected to medical exams and questions. In the lawsuit, Absolut Care was also charged with firing employees who were pregnant and failing to accommodate employees who had pregnancy-related medical restrictions. The actions of Absolut Care violated the PDA and ADA, resulting in a hefty settlement among other forms of relief.