Pregnancy Discrimination in the Workplace

Treating an employee poorly or unfairly due to pregnancy, childbirth or a medical condition related to pregnancy or childbirth is illegal and not tolerated in any workplace.

The legal aspects of pregnancy in the workplace are defined by several federal laws:
 

• The Pregnancy Discrimination Act
• The Americans with Disabilities Act
• The Family and Medical Leave Act
• The Fair Labor Standards Act

Additionally, there are many state and local laws that provide even more protections for employees.  Employers must follow the state or local law if it is more advantageous to the employee.

The Pregnancy Discrimination and Work Act

Businesses that employ 15 or more employees must comply with the Act. Women who are pregnant; could or intend to become pregnant; have a medical condition related to pregnancy; or have had, or are considering having, an abortion are all protected by from discrimination in all employment decisions by the Act. This includes hiring, termination, compensation, job assignments, promotions, layoffs, vacation, training opportunities, sick leave, health insurance or any other job related benefit or term of employment.

When women are unable to perform their jobs due to pregnancy, or a medical condition related to pregnancy, their employer must treat them in the same manner as an employee with a temporary disability. If employers provide light duty, temporary reassignments, disability leave, unpaid leave and other benefits to temporarily disabled employees, then these same accommodations must be offered to pregnant employees or employees suffering from medical conditions related to pregnancy.

Some accommodations that may be used to assist pregnant employees include: the permission to sit or stand during work duties, ergonomically appropriate furniture, shift changes, temporary elimination of non-essential job duties, and the ability to work from home. When an employer offers sick leave, pregnant employees must be allowed to use as many sick days for pregnancy and childbirth as are allowed for illnesses. Employers may not require pregnant employees to take time off if they are able to do their job with or without reasonable accommodation.

Lastly, pregnant employees must be treated in the same manner as temporarily disabled employees when they are reinstated from leave and for how seniority credit is applied for the time during the leave.

The Americans with Disabilities Act and Pregnancy

Businesses who have 15 or more employees for at least 20 weeks of the year must comply with the ADA. Pregnancy related illnesses and conditions may fall under coverage by the Americans with Disabilities Act if, when left untreated, they would substantially limit a major life activity or major body function.

Major life activities under the ADA include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major bodily functions under the ADA include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Gestational diabetes, preeclampsia, anemia, sciatica, or depression are some of the pregnancy-related conditions that generally get accommodations under the ADA.

Pregnancy Harassment

It’s also illegal to harass employees because of pregnancy, childbirth or a condition related to pregnancy or childbirth. Pregnancy harassment can be perpetrated by a supervisor, co-worker, or from a non-employee such as a contractor or customer.

There are two types of workplace harassment.

Hostile Environment harassment occurs when the behavior is so frequent or severe that it creates a hostile work environment. Generally, Hostile Environment harassment must be continuous and unwanted to become illegal, however particularly severe actions such as the touching an intimate body part, threats, or intimidation may be illegal the first time they occur. Harassment also becomes illegal when it involves an adverse employment action taken against the victim such as termination, demotion or involuntary transfer

Pregnancy, Maternity and Parental Leave

Employers may not single out pregnant employees by requiring special procedures to receive disability leave.  They must be treated in exactly the same manner as temporarily disabled employees.  However, if there are procedures in place to receive temporary disability leave, such as the requirement of a doctor’s note, then pregnant employees can be required to follow the same rules.

In addition to temporary disability leave, the Family and Medical Leave Act provides even more benefits. Under the Act pregnant employees may be eligible for as much as 12 weeks of paid or unpaid leave for the birth and care of a newborn child. In order to be eligible for the FMLA, employees must work for an employer with 50 or more employees who work within 75 miles of their workplace. Additionally, employees must have worked for their employer for at least 12 months and for at least 1250 hours during the 12 months prior to taking the leave.

FMLA is unpaid, however employees may use accrued vacation and sick time during the leave.  Employers are allowed to require paid vacation and sick time to be used during FMLA leave. The FMLA also covers caring for a newly adopted child or newly placed foster child. Employees must be allowed to return to work with the same or a substantially similar job as long as they can perform the essential functions of the job with or without reasonable accommodation. 

Employers do not need to reinstate employees who applied for leave fraudulently or who would have been terminated regardless of the leave. Additionally, employers are exempted if the employee is among the highest paid 10% of the organization’s staff and reinstatement would cause “grievous economic injury to the company”.

Break Time for Nursing Mothers

Under the Fair Labor Standards Act, working mothers have the right to express milk in the workplace. Employers with 50 or more employees are required to provide reasonable break time and a place, other than a bathroom, for the process of expressing milk. The location must be shielded from intrusion by co-workers and the public. Employers are not required to compensate employees for the time spent expressing milk, but employees may use paid breaks for this purpose without penalty.

Retaliation

Employers cannot retaliate against employees for participating in their legal rights under the Pregnancy Discrimination Act, The FLSA, the ADA, or the FMLA. This includes filing, participating or being a witness in a harassment or discrimination complaint. Retaliation is just as illegal as harassment or discrimination itself and is the number one complaint filed with the EEOC each year.

In Conclusion

Harassment or discrimination of pregnant employees by supervisors, co-workers, customers, contractors or anyone else is illegal and not tolerated in the workplace. Employees who violate the law are subject to disciplinary actions up to and including termination. All workers deserve a safe, comfortable environment at work.  It’s up to every employee to follow the law and to treat pregnant employees with dignity and respect.

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