Know Your Rights: Maternity-based mistreatment can happen
before, during or after pregnancy
What is pregnancy discrimination?
Under federal law, you may be experiencing pregnancy discrimination if you believe that you are being treated differently or unfavorably as an employee or as a job applicant because of your pregnancy, childbirth, or related conditions. Pregnancy discrimination can include all of the following actions by your employer:
- refusing to hire you because you’re pregnant or planning to become pregnant;
- firing or demoting you because you’re pregnant or planning to become pregnant;
- denying your return to the same job you had (or a similar one) when you return from maternity leave, or any pregnancy-related leave;
- treating you differently than other temporarily disabled employees;
Under the federal law known as the Pregnancy Discrimination Act, your pregnancy-related condition may be considered a temporary disability, which may include chronic morning sickness, doctor-ordered bed rest, childbirth and the recovery from it, and any other related medical condition. So when you’re pregnant, your employer must provide you with the same treatment and benefits that it gives to employees with other temporary disabilities.
The following are examples of illegal pregnancy discrimination under the Pregnancy Discrimination Act:
- During an interview, you’re asked how many children you have, or you’re asked whether you plan on getting pregnant again.
- You tell your boss at work that you’re pregnant and he fires you.
- You ask your employer if you can stop lifting heavy boxes (or some other kind of physically taxing work) while you’re pregnant, and they refuse, even though you know that another employee did not have to lift boxes at work while recovering from surgery for a non-pregnancy related condition.
- You need to take time off to visit your doctor for prenatal care and you’re docked pay, or you’re disciplined for missing work, although other non-pregnant colleagues who need ongoing medical treatment are not docked or disciplined for their medical care.
Which federal laws cover pregnancy discrimination?
The federal (United States) laws which prohibit pregnancy discrimination and provide for disability and parenting leaves are Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978 and the Family and Medical Leave Act of 1993 (“FMLA”).
Title VII of the Civil Rights Act of 1964 covers many forms of workplace sex discrimination with regard to your hiring, firing, work assignments, work conditions, promotions, benefits, training, retirement policies and wages.
The Pregnancy Discrimination Act was enacted in 1978 by Congress to clarify that discrimination based on pregnancy, child birth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. The Pregnancy Discrimination Act requires that as a pregnant employee you must be treated no differently than a non-pregnant employee who is similar in his or her ability or inability to work.
Regarding pregnancy related leave time, including maternity leave, the FMLA guarantees you 12 weeks of unpaid, job-protected leave to recover from a serious medical condition–including pregnancy–or to care for your newborn baby, a newly adopted child, or a seriously ill child, parent or spouse, but only if you have been working for at least one whole year for a company that has at least 50 employees. Under the FMLA, you have the right to take this 12 week unpaid leave every year (and this law applies equally to women and men), and to have your health benefits maintained during your leave. The FMLA also guarantees that at the end of your maternity leave you will be given the same job that you had before your baby was born, or another equivalent position.
One important note; if your company does not have at least 50 employees, or you have not worked for them for at least one year before your baby is born, that does not mean that you are not entitled to maternity leave, it just means that you are not entitled to FMLA leave, so watch out for deceitful employers who try to tell you otherwise.
The Americans with Disability Act (“ADA) protects individuals from employment discrimination on the basis of disability. While pregnancy itself is not considered a disability under the ADA, it does provide some protection to you as pregnant employee due to recent changes to the definition of “disability,” which makes it easier to demonstrate that your pregnancy-related challenges may be a disability entitled to a “reasonable accommodation” under the ADA.
Depending on your particular workplace circumstances, the discriminatory treatment you’re suffering may violate Title VII of the Civil Rights Act of 1964 (“Title VII”), the Family and Medical Leave Act (“FMLA”), the Pregnancy Discrimination Act (“PDA”), the Americans with Disabilities Act (“ADA”) and your state or city anti-discrimination laws, or, all of these laws at the same time. The protection provided by these various “Human Rights Laws” may depend on whether you qualify for protection under each specific statute, and that includes your state and city pregnancy discrimination laws, as they all have different requirements, minimum number of employees required for coverage, different statutes of limitations, etc.
Who is protected under the federal law?
Under Title VII and the PDA, the laws that cover sex and pregnancy discrimination, you are covered if you work for a company who employs at least 15 people, and if you feel that you are being treated differently based on your current pregnancy, past pregnancy, potential or intended pregnancy, or because of a medical condition related to your pregnancy, or the childbirth itself.
The FMLA covers male or female employees who have been working at least one year for an employer with 50 or more employees, and it allows these employees to take unpaid leave to care for a newborn or newly-adopted child, to care for certain seriously ill family members, or to recover from your own serious health condition.
Although employers with less than 15 employees are not required to offer pregnancy or other disability leave under federal law, those smaller employers may still be required to do so by your state or city anti-discrimination laws. For example, if you work in New York and are being discriminated against, you are covered under the state and city Human Rights Laws if your employer has four or more employees (including you).
What protections do you have under the New York City Pregnant Workers Fairness Act?
The New York City Pregnant Workers Fairness Act (PWFA) requires New York City employers with four or more employees to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless the employer can demonstrate that the accommodation would cause an undue hardship.
According to the New York City Council Committee on Civil Rights, an employee’s otherwise healthy pregnancy may require a workplace accommodation, such as periodic breaks, because the stress resulting from a failure to obtain a reasonable accommodation could adversely affect a pregnant woman’s health. The Committee reported that this issue was critical given that women in New York City are the primary or co-breadwinners in nearly two-thirds of families, and single mothers head 34.2% of all households with children and over 82% of single-parent households.
What is required of New York City employers under the new law?
The Pregnant Workers Fairness Act is an amendment to the New York City Human Rights Law and it applies to all New York City employers who employ four or more people. Under the PWFA, a woman who is pregnant or has given birth is entitled to a reasonable accommodation of her responsibilities so that she can continue to perform the essential functions of her job, unless such an accommodation would cause an “undue hardship” on the employer’s business.
Examples of reasonable accommodations include allowing additional bathroom breaks; allowing for a leave of absence to recover from childbirth; additional breaks to facilitate increased water intake; periodic rest for those who stand for long periods of time; and assistance with manual labor.
If you’re pregnant and you work in New York City, unless it’s a proven hardship on your company, it is now unlawful to refuse to flexibly respond to your enhanced needs while pregnant, which will allow you to continue working before and after your baby is born.
Do I have to tell potential employers I’m pregnant, or whether I plan to have children?
No, you do not. An employer cannot refuse to hire you because of your pregnancy, intended pregnancy, or pregnancy-related condition, if you are otherwise able to perform the essential functions of the offered job.
If you are interviewing during your first trimester and are still not showing, you may choose to keep the fact of your pregnancy to yourself. Even if you choose to volunteer the information, or if you’re showing and the employer is aware that you are pregnant, they cannot legally make hiring decisions based upon your pregnancy, although it may be difficult to prove that your pregnancy was the real reason you were not hired.
Do I have to tell my current employer that I’m pregnant?
No, you certainly do not have to tell your current employer that you are pregnant, but you should notify your company of your pregnancy before you begin to show, because it is best to have a record that your employer is aware of your pregnancy in case things go south later. This way you’ll be able to demonstrate that your employer knew that you were pregnant before they took some adverse employment action against you as a result of your pregnancy.
You also may need to notify your employer in advance of your maternity leave. You can email your supervisor or the human resources department to let them know that you’re pregnant, and to ask about the company’s policies regarding the use of sick leave, short-term disability leave, or FMLA leave, as each type of leave may have different advance notification requirements.
Can my employer prevent me from working while I’m pregnant or require me to take a certain amount of leave?
No. Your employer cannot compel you to take leave because you are pregnant, as long as you are able to perform your job. You must be permitted to work as long as you are able, and if you have been absent from for a time as a result of a pregnancy-related medical challenge and you recover, your company cannot require you to remain on leave until your baby’s born, and they also cannot prevent you from returning to work for a some arbitrary period of time after your baby is born.
Can my employer keep me from working in certain areas or keep me from performing certain tasks because of health and safety concerns, or to avoid offending clients or customers?
No, they cannot. If you are able to perform the basic functions of your job, and if you do not request any change in your job duties, you must be allowed to keep performing your job throughout your pregnancy. If you voluntarily request a modification of your job duties, then an employer must treat the request the same as it treats other similar requests made by temporarily disabled non-pregnant employees. An employer also cannot move you to another position or change your job because of their prejudices or their ignorance about pregnancy risks at work.
An employer may not single you out for pregnancy-related conditions for special procedures to determine your ability to work or to perform certain tasks, although they may use a procedure if it’s used to screen other employees’ ability to work. So, for example, if an employer requires its employees to submit a doctor’s statement concerning their lifting requirements before being excused from heavy lifting, then the employer may require you to submit a doctor’s note regarding your inability to lift heavy stuff due to your pregnancy.
Can my employer deny me pregnancy leave or pregnancy related medical leave?
No. If your company grants leave to other temporarily disabled employees, which it almost certainly does, it must also grant you leave for the period of time you are disabled by pregnancy and its related conditions. Unfortunately, if other temporarily disabled workers are not entitled to leave or benefits, then neither are pregnant women or temporarily physically disabled new mothers, unless they are entitled to leave under the FMLA.
Keep in mind that the PDA doesn’t prohibit employment decisions based on an employee’s conduct that may be caused by her pregnancy. For example, an employer doesn’t have to treat an employee who was late due to morning sickness any differently than an employee who was equally late for a different health reason.
I was pregnant, but am no longer pregnant, and I need time off to recover. May I do so?
Yes. If you are temporarily physically or mentally disabled due to the loss of your pregnancy through miscarriage or abortion, you would be legally covered to the extent that your employer covers other temporary physical or mental disabilities, which is almost certainly does, or it would constantly get sued for disability discrimination.
Can my employer deny me reasonable accommodations at work due to my pregnancy related medical condition?
An employer is required under the PDA to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or disability leave without pay. If you are unable to perform certain aspects of your job, such as heavy lifting or working with toxic chemicals, your employer must accommodate you to the same extent it accommodates other temporarily disabled employees, such as providing “light duty,” shifting certain job duties to other employees, or permitting a transfer to a vacant position. Note: please check your own state or city’s discrimination law as it may provide greater coverage and benefits than the federal law provides.
Is my employer required to pay me while I am on maternity leave?
Believe it or not, no, your employer is not required to pay you while you are out on maternity leave, unless you have accrued paid time off, such as vacation time to cash in during the leave. The United States is one of the only countries on earth that does not provide for paid maternity leave to workingwomen. If your company provides disability benefits to employees who have non-pregnancy disabilities such as broken bones, strokes or influenza, for example, than it must provide disability pay to women temporarily disabled due to pregnancy or childbirth.
Does my employer’s health insurance have to cover the medical costs of my pregnancy?
If your employer is covered by the FMLA, then the Affordable Care Act (“ACA”) requires it to provide health insurance benefits to their employees. While the ACA does not require employers to pay for the coverage, it does provide tax incentives to employers who pay for 50% or more of the cost, so many employers take advantage of this benefit by paying a portion of the cost of the employee health insurance.
Employers who offer health insurance to employees must include pregnancy, childbirth and related medical condition coverage. The ACA prohibits insurers from declining coverage for pre-existing conditions, including pregnancy. As with other pregnancy discrimination tests, employers who have health insurance benefit plans must apply the same terms and conditions for pregnancy related costs as for medical costs unrelated to pregnancy.
What do I do if I am being discriminated against or denied leave or accommodations?
When you request maternity leave or any pregnancy-related accommodation, do it in writing, explaining the reason for the leave and how long a leave you anticipate needing. Keep copies of everything you send and receive from your employer, as well as copies of doctor’s notes and any other medical documentation.
If you continue to be denied leave or otherwise discriminated against due to your pregnancy (and your sex, of course), you may want to file an complaint with your employer, as you must first provide your company with the opportunity to investigate your pregnancy discrimination complaint and resolve it in your favor.
If you are being discriminated against and your employer has been unresponsive to your complaints, or has made matters worse in response to it, you should consult with a qualified employee rights lawyer, to determine how best to proceed with a formal complaint filing, whether at an administrative agency such as the US Equal Employment Opportunity Commission, or a similar state or city agency, or by filing a lawsuit in state or federal court. Whichever way you choose to go, consult with a Plaintiff’s employment discrimination lawyer in your area before committing yourself to a particular course of action, as the time period for filing complaints differs from agency to agency and state to state, and certain decisions regarding how to proceed will have lasting consequences, so get informed first.
Contact Tuckner Sipser for a free and confidential consultation with an experienced pregnancy discrimination attorney, or to ask any question about your pregnancy related workplace challenge.