According to Equal Employment Opportunity Commission (EEOC) statistics, pregnancy discrimination charges against employers have increased by almost 50% over the period between 2000 and 2010. Although the actual charge numbers are much smaller than other types of discrimination charges such as race and sex, it is a good idea for employers to avoid these types of claims by making sure they understand the regulations related to pregnancy.
While the main federal law covering pregnancy discrimination in the workplace is the Pregnancy Discrimination Act (PDA) – an amendment to Title VII of the Civil Rights Act of 1964 that specifically applies its protections to women affected by pregnancy, childbirth, or related medical conditions—pregnant employees are also protected by the Americans With Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and any state laws that might apply.
Regarding state laws, it is especially important for employers to understand how their state’s regulation, if any, interacts with the federal law or provides additional benefits. For example, the State of California’s regulation covering pregnancy is the Pregnancy Disability Leave (PDL). The PDL provides more generous benefits to employees and the employee threshold count for coverage begins with five employees.
In comparison to state laws such as the PDL in California, the PDA applies to an employer if they have 15 or more employees. It prohibits an employer from firing an employee because she is pregnant. It also requires the employer to treat a pregnant employee who cannot work in the same manner that you treat other employees who are forced to take a leave of absence because of a medical disability. Also, FMLA applies when an employer has at least 50 people within a 75-mile radius and the pregnant employee has worked for the company for at least a year and for a minimum of 1250 hours in the last year. It requires the employer to allow the pregnant employee to take up to 12 weeks of unpaid leave in connection with the birth of her child.
Under the PDA, an employer may not refuse to hire, or take other adverse employment action against, a pregnant woman because of her pregnancybecause of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers. Court decisions have shown that employers cannot attempt to prevent pregnant employees from doing work just because the employer believes it may pose a hazard to the unborn child. Although it may be hard to understand, a simple situation where an employer approaches a pregnant employee and attempts to stop her from working for fear of her safety could unintentionally provide the basis for a discrimination suit. It is the employee’s responsibility to request an accommodation. As with any other workplace accommodation, the thing to do for an employer is to wait until the employee brings up the condition and asks for accommodation. A good guideline is for an employer to base any decision on whether an employee can do the job on medical documentation, not a manager’s interpretation.
The following are some guidelines for employers to consider regarding workplace pregnancy:
- Because of additional leave laws in many states, an employer should be aware how federal and state laws intersect and can have complicated interplay.
- Employers should have clearly understood leave policies and train all managers on how to accommodate employees. If there are special leave policies that an employer maintains that are not required by law, the employer should make sure pregnant women have access to such leaves.
- Employers should maintain one “parenting” leave policy that is gender-neutral. It is a common mistake to have separate policies for males and females and making an assumption that women will be the primary caretakers. Such a policy would be considered to be discriminatory.
Employers should also be sensitive to inappropriate verbal comments made to a pregnant employee such as how “huge” the employee is or questions about due dates. However, even more dangerous is when a manager makes an assumption that a pregnant employee is not returning to work after the completion of her pregnancy.