For many women, pregnancy is a joyous time (minus the morning sickness and back pain!), but for others, it can represent a professional battlefield. In fact, the Equal Employment Opportunity Commission (EEOC) logged a whopping 2,753 pregnancy discrimination charges in 2019, which represents the lowest rate in almost a decade and is down almost a third from the 4,029 filed in 2010. While the downtrend is promising, the awards have increased significantly, totaling just over $22 million last year, making this an important potential minefield for business owners to understand.
According to the EEOC, pregnancy discrimination is defined as any unfavorable treatment towards an applicant or an employee due to pregnancy, childbirth, or any medical condition related to pregnancy and childbirth. In 1978, the Pregnancy Discrimination Act (PDA) was rolled out, which “forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.” Now, it should be noted that the PDA only applies to workers employed by a company with 15 or more employees or those who work for a labor union or an employment agency, although it is important that you also check your state laws to determine whether they have in place more stringent laws that supersede the federal rules.
So, how does pregnancy discrimination typically look in the workplace? Essentially, it can be broken down into five different domains of discrimination and we’ve even offered a no-nonsense solution to staying out of trouble!
1) Discrimination in hiring, firing, promotions or other perks: When we think of pregnancy discrimination, this is typically what comes to mind. This domain includes declining to employ someone on account of their pregnancy or having children; firing them due to their becoming pregnant; passing them over for otherwise deserved promotions, training opportunities, or benefits; or giving them a lesser than or unfavorable job assignment because of their condition. The bottom line is that if these opportunities are otherwise available to other employees or job candidates, they must be made available to all employees (which is a good rule of thumb for staving off really any type of discrimination).
2) Harassment and bullying: Following on from the above, harassment of anyone in the workplace is a problem, but harassment of pregnant women is off limits. The EEOC helpfully notes that it is “especially” prohibited when it is frequent, pervasive, and contributes to a hostile work environment. Further, this facet of the act also requires employers to “act immediately” if they receive a report of harassment, which means at the very least investigating the claim and documenting both the report and any outcomes associated with your investigation. In short, keep harassment – of any type, to any person – out of your business and you should be in the clear.
3) Lack of accommodation: While pregnancy isn’t technically a disability (and most women will get pretty enraged if you suggest otherwise), you are still obligated to make accommodations that allow them to perform their job safely due to their condition. This can include giving them alternative assignments, light duties, providing additional breaks, and even offering paid or unpaid leave if it is warranted. This becomes especially important should your employee experienced impairments as a result of their pregnancy, such as pre-eclampsia, which do fall under the purview of the Americans with Disabilities Act (ADA). To approach this one, we recommend that you check in with the employee once they announce their pregnancy and ask them what you can do to support them in the coming months and then (critically!) keep the door open for additional conversations as and when their condition changes and additional accommodations are needed.
4) Denial of right to maternity/parental/pregnancy leave: The PDA specifically protects an employee’s rights to pregnancy, maternity or paternity leave and states that should you provide leave for disabled employees, that you also provide it to those who are pregnant or have recently welcomed a child. Further, the law prohibits employers from using their own deductive reasoning to determine whether an employee should be allowed to work and instead kicks it back to your workers doctor to write a note stating what they can and can’t do and under which circumstances.
5) Denial of rights under FMLA: Usually when we think about pregnancy, we think of the good ol’ Family and Medical Leave Act (FMLA). This law provides new birth parents, adoptive parents and even foster parents who have been with the company for at least one year and who qualify under other regulations and guidelines up to 12 weeks of unpaid leave, without fear of losing their job. However, the FMLA also provides protections once said employee returns to work, such as requiring that the worker be given ample time to pump breast milk during their shifts. For any and all issues relating to leave, we recommend that you comb through the laws (including any state laws that may be more stringent!) and then determine whether they apply to your company and your employee and then proceed from there. If you are on the fence, we recommend that you circle up with an expert (such as an employment lawyer or, if you’re a member of Abel, one of our seasoned professionals) to determine the appropriate course of action.
To summarize, pregnancy should be viewed as a medical condition that can invite discrimination from peers, mangers or bosses and all reports of unfair or unequal behavior should be investigated promptly. Further, when making hiring, promotion, or even firing decisions involving an employee that is with child, you should first check your federal and state laws regarding pregnancy discrimination and then make sure that any decision that you make regarding their employment status could be held up in court so that you can be confident in your decision.
