Pregnancy Discrimination

 

What is pregnancy discrimination within the context of employment?

 

Pregnancy discrimination occurs when a female applicant or employee experiences unfavorable treatment because of her “pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.”1 Overt examples of pregnancy discrimination may involve an employer not hiring you or firing you because of your pregnancy. Some other examples of pregnancy discrimination may include the denial of employment opportunities such as a promotion or being forced to take unpaid medical leave as a result of pregnancy. More subtle examples of pregnancy discrimination may involve your employer reducing your workload as a result of your perceived disability. It is important to keep in mind that pregnant employees must be permitted to work within their ordinary capacities as long as they are able to perform their jobs. 2

 

As a woman, how am I protected under Title VII of the Civil Rights Act of 1964?

 

Employers are forbidden under Title VII to refuse to hire, terminate, or otherwise discriminate “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individuals’ sex…” 3

 

Does Title VII of the Civil Rights Act protect me against pregnancy discrimination?

 

Yes.4 The Pregnancy Discrimination Act (PDA) is an amendment to Title VII. Pregnancy discrimination within the context of employment constitutes unlawful discrimination based on sex, as defined under Title VII. Pregnancy discrimination occurs when the treatment of a female applicant or employee is affected because of her “pregnancy, childbirth, or a medical condition related to pregnancy or childbirth,”5 and that this treatment is unfavorable.

 

How am I protected by the PDA?

 

Federal law prohibits discrimination of all forms, including pregnancy discrimination as related to any term or condition of employment – such as pay, hiring/firing, job assignments, retaliation, promotions, trainings, fringe benefits (leave and health insurance, etc.).6 The law requires employers to treat pregnancy as any other short-term disability. 7

 

Pregnancy Discrimination may be identifiable under distinct circumstances or categories:

 

Temporary Disability

This may apply to you if you are temporarily unable to perform your assigned job duties due to a medical condition related to pregnancy or childbirth. In this instance, you must be treated by your employer as any other temporarily disabled employee. There are varying requirements of coverage for different types of employers. (See http://www.eeoc.gov/employers/coverage.cfm for details about whether your employer is covered.)

Pregnancy, Maternity, and Parental Leave

Similar to temporary disability, if you are temporarily unable to perform your job due to pregnancy or childbirth, you must be treated as any other temporarily disabled employee. Therefore, if employers allow otherwise disabled employees paid leave this benefit must also be provided to you, if you are temporarily disabled as a result of your pregnancy/childbirth. Harassment

“It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.” Just as applied to other situations of harassment, such as sexual harassment, the law protects you from frequent and/or severe harassment and behavior that creates a hostile or offensive work environment, or that consequently results in an adverse employment decision.

 

How do I prove that I have been discriminated against based on pregnancy under federal law?

“An unlawful employment practice is established whenever pregnancy is a motivating factor for an adverse employment decision.”11

To prove pregnancy discrimination is similar to that of other forms of sex discrimination and disparate treatment. The difference being that to prove pregnancy discrimination, you must demonstrate that your employer knew that you were pregnant at the time your employer made the adverse employment decision. Mere knowledge of pregnancy at the time of a termination does not constitute sufficient evidence of pregnancy discrimination.12 (The knowledge must have in some way affected the decision.)

To establish pregnancy discrimination in a case involving employment termination, you must show that:13

  1. You were pregnant;
  2. You were qualified for the job you were performing, meaning you were performing your job well enough to meet your employer's legitimate expectations;
  3. In spite of your performance, you were discharged; and
  4. Others that were not pregnant were treated more favorably.
To establish pregnancy discrimination in a case involving reduction-in-force (RIF), (layoff, act of down-sizing, etc.) you must show that: 14
  1. You were pregnant and your employer knew you were pregnant;
  2. You were performing your duties satisfactorily;
  3. You were discharged or demoted; and
  4. Similarly situated employees who are not pregnant were treated more favorably.
You may establish discriminatory motive/pregnancy discrimination by:
  1. Using the indirect, burden-shifting approach15 (see explanation below) or
  2. Direct evidence or circumstantial evidence.16 An example of direct evidence would be if your employer told you that you couldn’t work as a result of your pregnancy or medical conditions related to it. An example of circumstantial evidence would be if your employer used the possibility of your becoming pregnant in the future as a reason to engage in discriminatory behavior.17

 

 

What is the burden-shifting approach and what does it mean for me?

 

Once you have proven the elements of your claim to the court (see above), the court presumes that unlawful discrimination was the most likely reason for the adverse personnel action.18 Then the burden of proof shifts to your employer to give a “legitimate nondiscriminatory reason for the adverse employment decision.”19 If your employer does this successfully, the burden shifts back to you to “make a substantial showing that the [defendant’s] explanation was false.”20

 

If I was not pregnant at the time I was terminated, might I still have a claim for pregnancy discrimination?

 

Yes. You must show that you were still “affected by pregnancy, childbirth or related medical conditions”21 when you were terminated. The evidence you can use to prove this might include “that harassment or discriminatory statements by plaintiff’s supervisors began during the pregnancy or maternity leave and continued with some regularity until the adverse employment action occurred.”22 You can also use evidence that a medical condition you developed during your pregnancy continued to cause problems for you at work until you were terminated.23

 

Do I have additional rights beyond the protections provided under Title VII and the PDA?

 

Yes. Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor and the Americans with Disabilities Act. 24

 

What is the FMLA and how can it help me?

 

FMLA requires certain employers to allow eligible employees up to 12 weeks of unpaid leave during a given 12 month period, for any of the following reasons:

  1. For the birth and care of employee’s newborn infant;
  2. For the placement of a child with the employee for adoption or foster care;
  3. For the care of an immediate family member with a serious health condition; and
  4. For medical leave when the employee cannot work because of a serious health condition. 25
If you are in one of the above situations, you may be eligible for leave under the FMLA if you (a) have been working for your employer for at least a year, but not necessarily consecutively, (b) have worked at least 1,250 hours during the year leading up to your leave, and (c) you “are employed at a worksite where the employer employs 50 or more employees within 75 miles.” 26

Also, when you take leave under the FMLA your employer must maintain your health insurance coverage and must give you back your job or an equivalent upon your return.27

 

 

Am I eligible to bring a claim under the FMLA and Title VII?

 

You may be able to bring a claim under Title VII if you work for a private employer with 15 or more employees or if you work for a state or local government employer with 15 or more employees.28 You may be able to bring a claim under the FMLA if you work for a private employer with 50 or more employees or a state or local government employer with any number of employees, no matter how big or small. 29

 

Is it possible that my employer’s leave policy violates Title VII but complies with the FMLA?

 

Yes. There are certain restrictions on your eligibility for leave under the FMLA based on how long you have worked for your employer. Under Title VII there are no such restrictions; you are always protected while on the job. “Thus, an employer policy that denies pregnancy leave during the first year of employment, but provides leave for other medical conditions, would constitute discrimination against pregnant women in violation of Title VII.” 30

 

Can the ADA ever protect me from discrimination by my employer based on my pregnancy?

 

There have been cases that qualify pregnancy as a disability under the ADA, but it is not automatically considered as such.31 “Temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities,” according to the comments to the EEOC’s regulations used to implement the ADA.32 These comments also specifically state that pregnancy does not count as an impairment for the above definition. 33

 

My employer offers temporary or short-term disability leave. Do I have a right to take leave for pregnancy, childbirth, and related conditions?

 

Title VII requires your employer “to treat pregnancy and related conditions the same as non-pregnancy conditions.”34 For example, if your “employer provides up to 8 weeks paid leave for temporary medical conditions,” the employer must provide the same to you for pregnancy or related conditions. 35

 

Do I have any other protections under federal law?

 

The Equal Employment Opportunity Commission (EEOC) has set forth a regulation entitled “Employment Policies Relating to Pregnancy and Childbirth,” which states that under Title VII employers are not allowed to exclude women from their pool of employees or job applicants “because of pregnancy, childbirth, or related medical conditions.” This regulation also provides that disabilities caused by or contributed to by any of the above should be “treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment.”37 There have been some court decisions that call into question whether pregnancy is allowed to be given preferential treatment over other disabilities, but courts seem to agree that, at a minimum, employers may not treat pregnancy worse than other disabilities. 38

 

What are the North Carolina laws regarding pregnancy discrimination?

 

North Carolina’s policy against employment sex discrimination is set forth in the Equal Employment Practices Act, which is a fair employment practices law. North Carolina, however, has no explicit statutory provisions regarding pregnancy discrimination. 39

 

What is the North Carolina Equal Employment Practices Act (NCEEPA)?

 

The public policy of North Carolina is set forth under this Act, parallel to the purpose of existing federal law prohibiting employment discrimination. Under this Act, it is unlawful for employers or labor organizations to discriminate against individuals based on sex.

“It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.” 40

 

What remedy does NCEEPA provide?

 

Unfortunately under this Act, no specific remedies are provided, and there is no state administrative agency specifically designated to investigate employment discrimination claims for non state employees. If you choose to file your discrimination claim in state court, you will therefore be operating under “common law.”41 The Act itself does not provide authority for “…administrative proceedings culminating in adjudications or remedial orders.”42 In fact, some federal courts have held that the prohibition on workplace discrimination is merely a statement of public policy and not a private cause of action.” 43

The North Carolina Office of Administrative Hearings Civil Rights Division (CRD), however, does accept and investigate complaints of discrimination filed by state employees.44 If you are not a state or county employee, complaints must be filed with the EEOC. The CRD, however, has the authority to receive charges of discrimination from the EEOC, under NCEEPA. Note that the CRD serves as a deferral agency to the EEOC. If such charges are referred from the EEOC to the CRD, the CRD will have the authority to work to investigate and reconcile the charges of discrimination.45

 

Does North Carolina have pregnancy leave?

 

Pregnancy is considered under the law to be a temporary disability – including doctor ordered bed rest, morning sickness, childbirth and recovery, etc. North Carolina does not have a state law that specifically requires employers to offer pregnancy leave. Yet under NCEEPA, female employees disabled by pregnancy must be given the same leave benefits provided to other employees with temporary disabilities. The Act does not require employers to provide leave, it requires that employees are treated the same in their requests for temporary disability leave.46

 

Does NCEEPA automatically provide me with a cause of action for pregnancy discrimination?

 

No. As demonstrated by precedent and case-law, courts interpreting North Carolina law have interpreted the Act as creating no civil cause of action. “The state’s prohibition on workplace discrimination does not expressly authorize a private cause of action. Some federal courts have held that the prohibition is merely a statement of public policy and not a private cause of action.” 47

 

Am I covered by the NCEEPA?

 

This Act applies to individuals applying for or employed by employers with 15 or more employees. It specifically does not apply to public employers. 49

 

How is this different from Federal Law?

 

Whereas North Carolina discrimination law does not expressly cover pregnancy discrimination, Title VII and the PDA prohibit discrimination based on pregnancy and provide functioning remedies. 50

 

What does this all mean? If there is no explicit protection against pregnancy discrimination under North Carolina state law, am I not protected?

 

You are not unprotected as North Carolina remains compliant with and guided by federal law, which does provide protection and remedy against discrimination based on pregnancy. In other words, North Carolina employees are protected by the FMLA,51 as well as the PDA of Title VII.

 

Is pregnancy discrimination always blatant? Can this type of discrimination be subtle?

 

Pregnancy discrimination does not have to be blatant, or maliciously motivated. Women often report losing their primary job responsibilities during pregnancy. This is often the result of an employer’s perception of pregnancy as a temporary disability. In an attempt to be accommodating by reducing your workload, and thus perceived levels of stress, the employer in effect takes away your opportunity to perform and advance in your career. These “accommodating” practices can be harmful or helpful, and some – while not maliciously motivated – may constitute pregnancy discrimination. 52

 

What if I am unsure if I have been discriminated against based on my pregnancy?

 

While we cannot outline definite acts of discrimination based on pregnancy, (and it is critical that you always consult with an attorney and/or EEOC counselor prior to initiating a discrimination claim), below are scenarios set forth by the EEOC that may constitute unlawful conduct. 53

 

What if I am unsure if I have been discriminated against based on my pregnancy?

 

While we cannot outline definite acts of discrimination based on pregnancy, (and it is critical that you always consult with an attorney and/or EEOC counselor prior to initiating a discrimination claim), below are scenarios set forth by the EEOC that may constitute unlawful conduct. 53

Prohibited Conduct as set forth by the EEOC:

  1. Asking female applicants and employees, but not male applicants and employees, about their child care responsibilities.
  2. Making stereotypical comments about pregnant workers or female caregivers.
  3. Treating female workers without care-giving responsibilities more favorably than female caregivers.
  4. Steering women with care giving responsibilities to less prestigious or lower-paid positions.
  5. Treating women of color who have care giving responsibilities differently than other workers with care giving responsibilities due to gender, race and/or national origin-based stereotypes.
  6. Treating male workers with care giving responsibilities more, or less, favorably than female workers with care giving responsibilities.
  7. Denying male workers’, but not female workers’, requests for leave related to care giving responsibilities.
  8. Providing reasonable accommodations for temporary medical conditions but not for pregnancy.

 

 

Pregnancy Discrimination: “It Happened To Me” 55

 

A young woman named Ashley Wilhelm was a certified nursing aide working at a retirement home in Charlotte, North Carolina. During the course of her employment she learned that she was pregnant. Upon informing management that she was pregnant, her hours were immediately reduced. Throughout the course of Ms. Wilhelm’s pregnancy, her employer continued to reduce her hours, even though she was cleared for full-time work by her doctor and was fully capable of handling her normal work-load. The retirement home’s management claimed to have reduced Ms. Wilhelm’s hours during the course of her pregnancy in accordance with its written “maternity policy.”

Recognizing that her employer’s behavior may constitute discrimination, Ms. Wilhelm eventually consulted with the EEOC. Upon investigating Ms. Wilhelm’s claim of pregnancy discrimination, it was determined that the alleged conduct of Ms. Wilhelm’s employer seemed to violate the Pregnancy Discrimination Act. The EEOC first attempted to reach a pre-litigation settlement with the retirement home but was unsuccessful. The EEOC was forced to file a lawsuit on behalf of Ms. Wilhelm against the retirement center. Ms. Wilhelm at that time was no longer employed by the center.

The retirement center was ultimately forced to pay $20,000 in damages to Ms. Wilhelm to settle the pregnancy discrimination lawsuit. As an additional requirement of the settlement, the retirement center must also provide anti-discrimination training to its staff, must implement a written anti-discrimination policy that is compliant with federal law, and is prohibited from engaging in pregnancy discrimination against their employees in the future.

 

 

1 EEOC, http://www.eeoc.gov/laws/types/pregnancy.cfm (last visited Jan. 22, 2010).
2 EEOC, http://www.eeoc.gov/facts/fs-preg.html (last visited Jan. 26, 2010).
3 42 U.S.C.A. § 2000e-2(a)(1) (West 2009).
4 EEOC, http://www.eeoc.gov/laws/types/pregnancy.cfm (last visited Jan. 22, 2010).
5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id.
11 1 Emp. Discrim. Coord. Analysis of Federal Law § 3:16 (Feb. 2010).
12 Id.
13 Id.
14 Id.
15 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); (holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).
16 Emp. Discrim. Coord., supra note 760, at § 3:16.
17 Id.
18 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
19 Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 752 (E.D. Pa. 2002).
20 Id. (citing Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 144 (2000); Fuentes v. Perskie, 32 F.3d 759, 763 (3rd Cir. 1994)).
21 Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 754 (E.D. Pa. 2002).
22 Id. (citing Piraino v. Int’l Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996).
23 Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 754 (E.D. Pa. 2002).
24 29 U.S.C. §§ 2611-2654, 42 U.S.C. §§ 12101-12213 (Dec. 2009).
25 U.S. Department of Labor – Wage and Hour Division, http://www.dol.gov/whd/fmla/index.htm (last visited, Jan. 22, 2010).
26 The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/policy/docs/fmlaada.html, n. 17 (last visited Jan. 27, 2010).
27 EEOC, http://www.eeoc.gov/policy/docs/fmlaada.html (last visited Jan. 22, 2010).
28 The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/policy/docs/fmlaada.html Q&A #6 (last visited Jan. 22, 2010).
29 Id.
30 The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/policy/docs/fmlaada.html Q&A #21 (last visited Jan. 22, 2010). 42 U.S.C.A. §12102 (2009).
31 42 U.S.C.A. §12102 (2009).
32 Brennan v. Nat’l Tel. Directory Corp., 850 F.Supp. 331, 344 (E.D.Pa. 1994)(quoting 29 C.F.R. 1630.2(j) App. (1993)).
33 Id.
34 The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/policy/docs/fmlaada.html Q&A #20 (last visited Jan. 22, 2010).
35 Id.
36 29 C.F.R. § 1604.10 (a) (2009).
37 Id. at § 1604.10 (b).
38 Johnson v. Univ. of Iowa, 408 F.Supp.2d 728, 741 (S.D.Iowa 2004).
39 N.C. Gen. Stat § 143-422.2 (2009).
40 Id.
41 The WAGE PROJECT, http://www.wageproject.org/files/nc.php (last visited Jan. 22, 2010).
42 Emp. Discrim. Coord., supra note 741, at §§ 37:1, 37:38.
43 3 Guide to Employment Law and Regulation § 54:6; See Spagnuolo v. Whirpool Corp., 467 F. Supp. 364 (W.D.N.C. 1979); Newton v. Lat Purser & Assocs., 843 F.Supp 1022 (W.D.N.C. 1994).
44 10A N.C. Admin. Code 5C.0216 (2009).
45 N.C. Gen. Stat § 143-422.3 (2009); N.C. Gen. Stat. § 126-34 (2009).
46 North Carolina Healthy Start Foundation, http://www.nchealthystart.org/aboutus/incite/incite_dec_08.html (last visited Feb. 15, 2010). (citing N.C. Gen. Stat. § 143-422.1 (2009); N.C. Gen. Stat. § 143-416.1 (2009)).
47 Spagnuolo v. Whirpool Corp., 467 F. Supp. 364 (W.D.N.C. 1979); Newton v. Lat Purser & Assocs., 843 F.Supp 1022 (W.D.N.C. 1994)(referencing 3 Guide to Employment Law and Regulation § 54:6 (Dec. 2009).
48 Emp. Discrim. Coord., supra note 741, at § 37:24, 37:38; N.C. Gen. Stat § 143-422.2 (2009).
49 Emp. Discrim. Coord., supra note 741, at § 37:25.
50 Id. at § 37:1; 42 U.S.C.A. § 2000e-2(a)(1) (2009).
51 25 N.C. Admin. Code 1E.1102 (2010); 25 N.C. Admin. Code 1E.1110 (2010).
52 Fosbinder & Van Kampen, PLLC – Charlotte Employment Law, http://www.charlotteemploymentlaw.com/CM/Discrimination-Harassment/Pregnancy-Discrimination.asp (last visited Jan. 22, 2010).
53 EEOC - Employer Best Practices for Workers with Caregiving Responsibilities http://www.eeoc.gov/policy/docs/caregiver-best-practices.html#-13 (last visited Jan. 22, 2010).
54 Id.
55 Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/newsroom/release/10-28-09.cfm (last visited Jan 26. 2010).