By Jack Tuckner, Esq.
On June 15th, 2018, the New York Times ran a front page story on the prevalence of pregnancy discrimination, how claims against all companies – large and small, are peaking and at the United States Equal Employment Opportunity Commission, the claims for pregnancy discrimination are at an all time high, even against companies that are purportedly female-friendly, and advertise themselves as companies catering to women. Apparently, they’re not catering to women who want to, or need to, have a balance of family and worklife. And the reason for this resentment and discriminatory bias is clear at least to me, who practices employment law and represents women in workplace challenges related to gender, is that companies – if your company had a voice it would be saying, “Your pregnancy is a pain in our ass. It means that we’re going to need to accommodate you, we’re gonna need to be flexible, you are gonna need to see your OB GYN, you’re gonna need to get tests and sonograms etc. You’re going to have morning sickness, you are not gonna be able to wine and dine the clients, and to top this whole fun party all off, you are gonna have to take maternity leave for three months, and we have to give it to you and let you have your job back. We thought you were interested in growing with this company, we thought you were a career gal, we thought that you were serving your corporate master first and foremost. And now, you’re getting knocked up on us? You know what, we don’t take kindly to that, we don’t make partner out of people who are gonna throttle back, and get themselves temporarily disabled, as a result of having a baby, and then taking a big long vacation after the baby is born.”
While companies actually don’t usually say things as flagrant as that, that’s in effect what the corporate entity is experiencing and the actual human beings that administer your company often act out on those impulses and that’s why the claims are at an all-time high. But here’s what you have to know – even though right now it seems in this country that things are going sort of way to the right, and so conservative, the fact is that the trend is toward protecting pregnant women in the workplace, unquestionably. Federal law, the United States Equal Opportunity (Commission) guidelines, caselaw, the Pregnancy Discrimination Act; it’s sex discrimination, your state law, your city law, will protect you on the basis of your pregnancy, because that’s also the basis of your sex or your gender, and it’s also related to disability, or perceived disability, when your company sees you as, less than fully capable because you’re pregnant, and that’s illegal.
Your company must have a conversation with you about your needs when you’re pregnant, and it has to “reasonably accommodate” you – that’s the phrase for having a little flexibility when you are pregnant. It can’t tell you that we don’t have that type of pregnancy policy, that we don’t accommodate pregnancy, just people who are injured in car accidents, that we don’t have a maternity leave policy, that, because your obstetrician has written a note that says ‘Jane can’t lift more than 25 pounds,’ your company now can’t bench you, and say “Well, sorry, now you can’t do your job just like that.” That’s what used to happen all the time, still happens a lot, but here’s what you have to know – here’s the key, is that, you have to document all of this, you have to give your company the opportunity to do the right thing, to accommodate you, to know that you’re pregnant first, so put that in writing. And then, if you’re being treated differently, worse, because you’re pregnant, because you are planning to get pregnant, or because you’ve had a baby already, that’s illegal sex and pregnancy discrimination.
And you want to put it in writing to your company, even if you don’t think your company or the person you have to write to in your company is going to care, because you have to be able to document and prove that you’re saying to your employer, “I need help with this,” or “I oppose the fact that you’re treating me differently because of my pregnancy, and I am losing steam, or I’m being excluded,” or something else that feels to you like a hostile work environment, or a loss in your upward trajectory in your company. That’s all illegal. And give your company the chance now to sort of wake up and smell the coffee and realize what they have to do. Because then if they don’t do the right thing, or if things get worse, you’ll be in a better position to command a severance package, to teach your employer a lesson so the next woman who comes after you in this workplace might be dealing with a more awake, progressive employer that now understands what it must do in response to pregnancy, that it needs to walk the talk in terms of family values and supporting women in the workplace. So, remember – document everything, put it in writing, even if it’s just an email to human resources, or to benefits, or to your boss, saying what’s going on in terms of your pregnancy and how you’re being treated and what you need in order to balance your pregnancy and any medical challenges related to it, or maternity leave, or lactation, expressing milk when you get back from maternity leave – all of that is part of the protections under the laws, the regulations, the statutes that now govern. And you are entitled to be respected and treated equally, even though you’re pregnant, even though you just had a baby, or more importantly, because you just had a baby, or you’re pregnant. You’re protected – just make sure, to put it in writing.