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Pregnancy Discrimination Claims
I think my employer is discriminating against me because I am pregnant.What is pregnancy discrimination and does federal law cover it?Pregnancy discrimination is adverse or unequal treatment by an employer of an employee because she is pregnant. Congress amended Title VII of the Civil Rights Act of 1964 in 1978 to include the Pregnancy Discrimination Act (PDA). The PDA prohibits employers from treating pregnancy, childbirth, and related medical conditions any differently from other disabilities. I think I am being impacted or treated differently because of my pregnancy. How do I prove it?These requirements may vary slightly according to the region of the country in which you reside. To prove that you have been a victim of pregnancy discrimination, in most jurisdictions, you must show that:
1. you are a member of a protected class (which, as a woman, you are);
2. you were subject to an adverse employment action;
3. you were performing your job at a level that met your employer’s expectations;
4. your position was filled by a person outside the protected class, or alternatively, by someone who is similarly situated in your ability or inability to work who received more favorable benefits. It is important for you to know that, although courts try their hardest to apply the law in parallel fashion across the country, sometimes different courts will place a different level of importance on one requirement over another depending on the circumstances surrounding each case. I just found out that I’m pregnant, should I tell my employer? You do not have to tell your employer until 30 days before you plan to take your maternity leave. Can my employer fire me or refuse to hire me because I may become pregnant? No, it is illegal for your employer to take any adverse action against you because you are or may become pregnant. Can I ask my employer to make accommodations for me on account of my pregnancy?You can ask your employer for the same types of accommodations that it provides for other disabled persons. The PDA provides a base level of protections for women who are pregnant, but it does not require your employer to go above and beyond the benefits provided for others who may suffer from a disability or temporary illness. Those are the legal requirements. You can always ask for accommodations. Whether or not your employer must provide them is dependent on the benefits provided to others. For what amount of time can I take leave because of pregnancy? It depends most often on your employer’s policy and your state. The Family Medical Leave Act of 1993 does set a base standard for employers with 50 or more employees. After you have worked at your job for one year, you are entitled to 12 weeks of unpaid leave. What happens to my job while I am on pregnancy leave? Your job may be filled by someone else while you are on leave, but your employer may be bound to reinstate you upon your return. Again, you need to familiarize yourself with how the employer has dealt with people on leave previously. If they have reinstated others, but fail to reinstate you, you may have a claim of pregnancy discrimination. Can my employer deny me pregnancy leave?If you have worked for your employer for at least a year and your employer employs 50 or more employees, you are legally entitled to 12 weeks of unpaid leave, which they cannot deny you. However, if your employer is not covered by the Act, it can deny you maternity leave, as long as it denies everyone leave for any medical condition or disability. Such a situation is unlikely. I’ve been missing a lot of work due to prenatal check-ups or pregnancy-related complications; can my employer fire me for this?Yes, if you have missed more than your allotted sick and personal days. If the employer has overlooked extensive absences with other employees for their medical conditions, you may be able to prove that your discharge was related to your pregnancy, in which case it could be deemed illegal. Is my employer required to pay me while I am on pregnancy leave?No. If you are covered by the Family Medical Leave Act, and thus entitled to mandatory leave, employers are only required to provide 12 weeks of unpaid leave. If, however, your employer provides paid leave for persons with disabilities or those suffering from temporary illnesses, you are entitled to the same benefits. I’m pregnant but not showing yet and I have an upcoming interview, do I need to disclose the fact that I’m pregnant?No, you do not need to disclose your pregnancy. Because this question has been proven to have a larger impact on the employment of women, you do not need to answer any questions regarding your marital status, pregnancy or plans for pregnancy. Can my employer keep me from working in certain areas or doing certain tasks because of health and safety concerns?No, your employer must allow you to continue working under the same conditions as other workers as long as you are able to. Does my employer’s health insurance have to cover the medical costs of my pregnancy? If your employer’s health insurance covers other temporary illnesses and medical concerns, it also needs to cover your pregnancy. I just returned from maternity leave and need to take extra breaks in order to pump milk, but my supervisor won’t allow me to take more than 2 breaks a day. Can I file a claim?As mentioned above, different jurisdictions will rule differently on issues. This is one where many courts have not issued a decision. However, a Federal court in Maryland ruled that breast-feeding and/or the time required to pump milk is not covered because it falls under child-rearing and not child-bearing. Child-rearing is not protected under the PDA. Can my employer treat me differently because I am unmarried and pregnant?Most likely, no. Discrimination against you because you are pregnant is covered by the PDA, whether or not you are married. The only exception would be if your employer can prove that your marital status when you are pregnant qualifies as a bona fide occupational qualification. I was pregnant but had a miscarriage or an abortion and need time off to recover. Am I covered by the law?An abortion or a miscarriage can be interpreted as a pregnancy-related medical condition. Although no court has specifically ruled on the incorporation of either abortion or miscarriage in the meaning of the PDA, most courts have recognized that the legislative history supports such an interpretation. However, the PDA officially takes a neutral stand on providing benefits for abortions. There are two exceptions: employers must cover abortions (1) "where the mother’s life would be in danger if the child were carried to term, or (2) where medical conditions have arisen from an abortion." What could my employer do to deny my allegations, and how do I respond to their denials? Your employer could say a few things. Once you have proven the four elements required, it becomes the employer’s responsibility to respond with proof that your pregnancy did not motivate the adverse employment action. First, it may say that you failed to prove one of the four elements. The other defenses depend on the type of discrimination claim you are asserting: Your employer has a policy that discriminates against pregnant women on its face. If you are contesting a policy that is having a discriminatory effect and the policy is discriminatory on its face, your employer’s only real defense is to prove that the policy is a bona fide occupational qualification. This means they must show that the qualification relates to an essential job duty and is reasonably necessary to the operation of the business. Your employer has a policy that is neutral in its actual wording, but still has a discriminatory effect on pregnant women. If you have claimed that a neutral policy is being used in a way that is discriminatory, your employer will likely rebut with evidence to prove that the policy is applied neutrally or that it is a legitimate business necessity. If you have claimed that the policy is neutral, but impacts pregnant women in a discriminatory manner, you will need statistics and the experiences of other pregnant women to compare it to, or alternatively, the experiences of other employees who are similarly situated in ability (based on a disability or illness) who have been treated better. All of this evidence needs to indicate that your employer’s proffered business reason is not necessary. You can also present evidence of an alternative policy, which would accomplish your employer’s business goals without discriminating against pregnant women. 3. Your employer responded to your allegations with reasons that you think are untrue. You now must prove that their proffered reason is pretext for the actual motivation, which is discrimination. You must also be prepared to prove that your employer intended to discriminate against you. 4. Your employer responded to your allegations by asserting legitimate reasons for your discharge. A case with both illegitimate (discriminatory) and legitimate (any other reasons offered by your employer) reasons is called a mixed-motive case. Your ultimate responsibility is to prove that the discriminatory reason was more likely than not the determinative motivating factor for the adverse action. The legitimate reasons can exist and can have merit, but you must prove that it was the discriminatory reason that truly motivated your employer’s decision to discharge you.
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