Even though today’s workforce is diverse and women take an equally large part of the workforce as men, there is still active discrimination mainly related to pregnancy. Despite several laws being formed to fight pregnancy discrimination, hundreds if not thousands of women still face pregnancy discrimination at their workplace. This blog will help you understand what to do if your employer discriminates based on pregnancy status.

What is Pregnancy Discrimination?

Pregnancy discrimination means treating female employees or applicants unfavorably due to their pregnancy status. Below are some acts that indicate pregnancy discrimination from an employer:

  • Demoting or firing a pregnant employee

  • Failing to hire a pregnant applicant based on their pregnancy

  • Refusing to give a pregnant employee the same or a similar job after coming back to work from their maternity leave

  • Denying a male employee health insurance coverage for his pregnant wife while other employees of the same company have health insurance coverage

  • Treating a pregnant employee differently and negatively compared to other employees

Note that any pregnancy-related condition is considered a temporary disability. For instance, recovery from childbirth, bed rest ordered by the doctor, severe morning sickness, and childbirth. Hence, your employer should give pregnant staff similar treatment to other employees with temporary disabilities.

Here are some examples of pregnancy discrimination at the workplace:

  • A lady staff tells her employer that she is pregnant, and her employer fires her immediately even though she can still manage work for some more months

  • At an interview, the boss asks a female applicant the number of children she has and intends to get pregnant again. The applicant says she is two months pregnant, and the boss declines her position and tells her first to give birth and come back when she is ready for work.

  • A pregnant staff member takes time off to see the doctor for prenatal care. When she gets back to work, she is fired because she missed work, while other employees who take time off to seek additional medical treatment are not fired.

  • A pregnant worker at a restaurant requests her employer not to lift heavy things, and her employer declines her request. On the other hand, other employees recovering from surgery are allowed not to lift heavy boxes. The pregnant worker is left with no option but to quit her job.

Federal Laws that Cover Pregnancy Discrimination

Title VII of the Civil Rights Act of 1964 prohibits pregnancy discrimination and provides for parenting and disability leaves. The specific laws include the Family and Medical Leave Act of 1993 (“FMLA”) and the Pregnancy Discrimination Act of 1978 (“PDA”).

Many types of discrimination are covered under Title VII, especially discrimination at the workplace due to your sex. In 1978, Congress enacted the PDA to state that pregnancy and childbirth discrimination is a form of sex discrimination restrained under Title VII of the Civil Rights Act of 1964. Note that this is an add-on of Title VII. PDA requires employers to treat their pregnant employees the same as other employees with the same ability or inability to work.

Regardless of whether you are a male or female, if you have been working for a company with more than 50 employees for at least one year; you are entitled to 12 weeks of an unpaid leave to care for a newborn, a seriously sick spouse, parent, or child, or to recover from a severe medical condition including pregnancy under FMLA. The same law also states that you should be given the same job role you had before the leave or a different role with similar pay and benefits.

ADA mainly prohibits discrimination against people living with disability at the workplace, and although pregnancy is not a disability, pregnant job seekers and workers are still protected under the ADA. The term disability has a broad meaning, making it easier for pregnant employees with impairments related to the pregnancy to show that they have some form of disability.

Who is Protected by These Laws?

Title VII, which the PDA amended, makes it illegal to discriminate against an individual based on their potential, intended, or past pregnancy. These laws protect pregnant employees who have severe physical conditions making them eligible for disability leave. Workers who work in an organization with more than 15 employees, an employment agency, or a labor union are protected under the law.

FMLA protects both male and female workers who have been working at an organization for at least one year. This law allows them to take unpaid leaves to take care of their newborn child or recover from childbirth. Even though FMLA or Title VII does not require employers from smaller companies to offer disability or pregnancy leave, the state laws may require small employers to offer pregnancy and disability leave to their employees.

The Pregnant Workers Fairness Act

This bill was introduced in 2017 and prohibited any practices by employers that may hinder an individual affected by childbirth or pregnancy from making reasonable accommodations. The bill is still in review, but if passed, it would:

  • Emphasize that an employer cannot discriminate against a pregnant employee because she has asked or needs, or received accommodation

  • Prohibit employers from constraining a pregnant employee to go on leave when another reasonable accommodation would work best for her

Pregnancy Discrimination and Your Rights

Below are some of the things/rules that employers are supposed to follow concerning pregnant employees or job applicants.

  • During an interview, your employer is not supposed to ask unlawful questions to pregnant applicants that they would not ask the applicants that are not pregnant.

  • Employers must not decline an employee’s hiring or promotion opportunity based on their pregnancy status. Similarly, employers should not fire or demote pregnant employees due to their pregnancy status.

  • Employers should not expect their employees to give pregnancy notice not unless it is for a reasonable business reason and should not be used to deny the employee a job opportunity or have them fired or demoted.

  • Employers should not force a pregnant employee to quit work as long as she wants to continue working and is physically capable of completing all the required tasks.

  • Employers should not discriminate against an employee who becomes or is pregnant.

  • Employers should not discriminate against employees who are considering aborting or have had an abortion in the past.

  • Employers should hold an open job opportunity for a pregnancy-related absence the same period other positions are held open for employees on sick leave.

  • Employers should provide health insurance coverage to pregnant employees.

  • Employers should provide pregnancy benefits to single employees the same way they do for married workers.

  • Employers should offer similar health benefits to the spouses of male employees similar to those they give to spouses of female employees.

How to File a Pregnancy Discrimination Charge

If you believe that your employer has discriminated against you based on your pregnancy, you are expected to first submit a complaint to the FEPA (Local State Fair Employment Practices Agency) or EEOC before filing a claim. A discrimination charge does not mean that unlawful discrimination took place; instead, it initiates the process by EEOC to find out if there is a reasonable finding to show that their discrimination took place.

After filling the charges, the EEOC can decide what to do to help resolve the charges. Some possible outcomes include monetary or other benefits like the primary aim of workplace accommodations. Before the EEOC begins investigating, they offer a mediation session between the employer and the charging party and a third-party mediator to resolve the complaint. Note that charges can be resolved at any point during the mediation process. This is a voluntary process that helps to save effort, time, and resources used during investigations. If the employer and the charging party cannot settle the charges through settlement or mediation, the EEOC will move forward with the investigation and collect all relevant information from both parties to see if there is reasonable cause to determine that discrimination occurred.

If the EEOC finds reasonable cause to believe that discrimination took place, they will use the conciliation process to resolve the complaint. Almost 2% of pregnancy discrimination cases are resolved through conciliation. The charging party may request to drop the EEOC process and ask for a right to sue letter. The case may be dropped due to administrative reasons like lack of jurisdiction, failure to find the charging person or the charging person may request EEOC to drop the charge. According to the EEOC, about 15% of pregnancy charges were dropped for administrative reasons.

If both parties cannot settle the charge through conciliation, the EEOC or the charging team may move to court to file a lawsuit. However, only a few employer discrimination charges move to court, and the EEOC only files a small number of discrimination cases. That is why the EEOC resolution process is considered the primary adjudicator of pregnancy discrimination.

What are the Remedies Available to Pregnancy Discrimination Victims?

There are several remedies that Pregnancy discrimination victims can recover. They include:

  • Promotion

  • Hiring

  • Back pay

  • Front pay

  • Reinstatement

  • Punitive damages (to punish the employer)

  • Compensatory damages (pain and suffering)

  • Additional actions that will make the victim “whole.”

Other remedies include payment of:

  • Court fees

  • Expert witness cost

  • Attorney’s fees

Your employer may also be asked to post notices informing other employees about the violations and the specific charge they faced and enlightening them of their rights to be free from retaliation, harassment, and discrimination. The employer should ensure that even people with visual or reading disabilities can access the notice.

Additionally, your employer may be required to take preventive and corrective measures regarding the source of the discrimination, stop the specific discriminatory practices, and ensure it does not happen again.

Frequently Asked Questions About Pregnancy Discrimination

How much time do I have before filing a pregnancy discrimination charge?

Anti-discrimination laws give you up to 180 days to file charges when the discrimination occurs. This is the case for most states, but federal employees are given 45 days from when the incident appears to reach out to an EEOC counselor.

What do I do if I face discrimination or being denied accommodations or leave?

If you want accommodation or a leave, always do so in writing, noting why you need the leave and the amount of time it will take. Always make copies of what you give to your employer and what you receive from them, not to forget your doctor’s notes and other relevant medical documents.

If you are constantly denied leave, you may consider filing for a grievance. Union members can file a formal grievance through the union. Most employers have policies that enable them to settle their disputes internally. If you do not get enough help from your HR and wish to file a lawsuit, ensure you have evidence proving that a worker in a similar situation was treated favorably and differently. You should also be able to show that your pregnancy status led to the unfair treatment to establish a prima facie case.

Can a man take a pregnancy leave?

The common types of leaves associated with pregnancy include:

  • Maternity/ pregnancy leave— is related to physical limitations caused by pregnancy or childbirth.

  • Parental leave provides care or bonding with a child right after birth or adoption.

If a father is a caregiver for a mother with a severe pregnancy-related condition, he can take pre or post-birth leave under FMLA.

Is my employer supposed to pay me while I am on pregnancy leave?

Although it is not indicated under Title VII of the FMLA, any benefit given to other workers while on leave should also be available for new mothers and pregnant women. But depending on your company’s policies and the amount of time you will be on leave, you may be able to use leave time, sick leave, or vacation leave to maintain your salary while on leave.

Find an Employment Lawyer Near Me

If you have been discriminated against due to pregnancy or pregnancy-related conditions, it is essential to seek help from an employment lawyer immediately. We at Stop Unpaid Wages can help you recover the losses incurred. Call us today at 424-781-8411 if you are in the Los Angeles area.