Pregnancy Discrimination

 

What is pregnancy discrimination?

 

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

 

What protections am I entitled to under Pennsylvania state law?

 

Under the Pennsylvania Human Relations Act (PHRA), employers are not allowed to have policies (written or unwritten) or practices that exclude job applicants or employees from employment because of pregnancy.3 If an employer asserts that exclusion on this basis is justified, the burden of proof shifts to the employer to “justify, and clearly demonstrate, the factual basis”  for this assertion.4

“Furthermore, an employer's adverse treatment of a pregnant employee, as compared to its treatment of similarly situated non-pregnant employees, has been held to be unlawful sex discrimination under the Act, since the condition of pregnancy is unique to females.”5 In other words, employers are required to treat a person who is pregnant the same as a person who is not pregnant.

The PHRA requires that employers provide the same leave for pregnancy, childbirth, and related conditions as for other medical conditions; however, there is no state statute requiring provision of this leave to anyone.6

In addition to the protections offered by state law, employers in Pennsylvania must comply with the requirements set forth in federal laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964 (Title VII). These laws will be explained in greater detail below.

 

Who does the PHRA cover?

 

The PHRA covers employers who have four or more employees, including government agencies, charities, and religious organizations.7 It does not cover agricultural or domestic workers, workers who live in the personal residence of their employer as part of their job, or individuals employed by family members.8 All other employees are covered.

 

How do I bring a claim in Pennsylvania?

 

The Pennsylvania courts have repeatedly held that there are no separate common law remedies for sex discrimination, including wrongful termination and sexual harassment, because the PHRA preempts all other claims based on discrimination.9 You cannot go directly to court under the PHRA, rather you must first file a complaint with the PHRC.10
See How to File a Claim with PHRC.

 

How long do I have to bring a claim?

 

You have 180 days to bring a claim under the PHRA.11

 

My employer is requiring me to begin my maternity leave once I reach a specific month of my pregnancy; might I have a claim for pregnancy discrimination?

 

Yes. Courts have held that this type of requirement violations the PHRA and constitutes unlawful sex discrimination.12

 

My employer is requiring me to begin my maternity leave once I reach a specific month of my pregnancy; might I have a claim for pregnancy discrimination?

 

Yes. Courts have held that this type of requirement violations the PHRA and constitutes unlawful sex discrimination. 12

 

My employer is prohibiting me from taking maternity leave because I am unmarried; might I have a claim for pregnancy discrimination?

 

Yes. Courts have found that this type of differentiation between married and unmarried female teachers can constitute sex discrimination under the PHRA.13

 

Can I bring a case for discrimination based on pregnancy disability under Pennsylvania law?

 

Generally, the answer is no. For you to be considered disabled, you “must have an impairment which substantially limits one of [your] major life activities, or be regarded as having such an impairment.”14 Pregnancy does not in and of itself qualify as such. Under the PHRA, pregnancy does not qualify as a disability.15 Additionally, Pennsylvania courts have held that women who are terminated based on pregnancy have a claim for sex discrimination, not disability discrimination.16

 

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

 

Yes.17 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,”18 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.).19 The law requires employers to treat pregnancy as any other short-term disability.20

 

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.21 (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.22 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.” 23 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.

 

Am I covered by Title VII?

 

Title VII generally covers employers who employ fifteen or more people, but there are some limited exceptions.24 Although most federal employers are covered, employees of the Library of Congress, the General Accounting Office, and uniformed members of the military are not protected by Title VII.25 Other exemptions include: private membership clubs which have received tax exempt status,26 Indian tribes,27 and public international organizations such as the International Monetary Fund and the World Bank.28

 

How do I bring a claim under Title VII?

 

In order to bring a claim under Title VII, you have to go through the Equal Employment Opportunities Commission (EEOC). You cannot bring a case to court without first doing so.
See The EEOC Process for more information.

 

How long do I have to file my claim under Title VII?

 

Federal employees must file a claim with the agency committing the discrimination within 45 days. Because the PHRC is Pennsylvania’s Fair Employment Practices Agency, private employees have 300 days after the alleged discriminatory practice to file a complaint. 30
See The EEOC Process for more information.

 

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.”31

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.32 (The knowledge must have in some way affected the decision.)

To establish pregnancy discrimination in a case involving employment termination, you must show that:33

  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:34
  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 approach35 (see explanation below) or
  2. Direct evidence or circumstantial evidence. An example of direct evidence36 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.37

 

 

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.38 Then the burden of proof shifts to your employer to give a “legitimate nondiscriminatory reason for the adverse employment decision.” 39 If your employer does this successfully, the burden shifts back to you to “make a substantial showing that the [defendant’s] explanation was false.” 40

 

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”41 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.”42 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.43

 

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. 44

 

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. 45

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.”46

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.47

 

 

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.48 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. 49

 

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.”50

 

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. “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.52 These comments also specifically state that pregnancy does not count as an impairment for the above definition. 53

 

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.”54 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.55

 

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.”56 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.”57 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.58

 

What remedies am I entitled to under Title VII?

 

If the court finds that your employer has violated Title VII, there are several available remedies. The court has the freedom to demand that your employer take appropriate action, such as ceasing the discriminatory practice, hiring or promoting you, or paying you lost wages as far back as two years prior to your complaint with the EEOC. 59

However, if your employer can show that there was a non-discriminatory reason for its action as well as the discriminatory reason you proved, and that it would have taken the same action anyway, your remedies will be severely limited. The court is limited to telling your employer to stop the discriminatory practices, declaring that the practices are discriminatory, and paying attorney fees. 60

On the other hand, if you can show that your employer discriminated maliciously or recklessly, then the court may award extra payments beyond lost wages. These payments are limited by the size of your employer.62

 

Pregnancy Discrimination: “It Happened to Me” 63

 

Kim Lingle Sanders began working for Dr. William C. Adams at the Animal Hospital of Harrisburg in December 1988, and a month later she found out she was pregnant. Soon after, she told Dr. Adams about her pregnancy, and he fired her less than a week later. Before firing her, Dr. Adams asked another one of his employees, Ms. Latchford, for her opinion of Ms. Sanders and whether Ms. Sanders planned to have children. While firing Ms. Sanders, Dr. Adams told her that he was not pleased with her pregnancy, it would be better for both if he let her go now instead of later in her pregnancy, and the stress of the job would be too much for her as the pregnancy went on. After firing her, Dr. Adams said to another employee, Ms. Hoover, that “since she [Ms. Sanders] was pregnant there was no sense retraining her on the areas where she was poor like we used to train everyone else.”

Less than two months after she was fired, Ms. Sanders filed a written complaint against the animal hospital with the Pennsylvania Human Relations Commission (PHRC) for unlawful discharge based on her being a woman and being pregnant. Three years later, Ms. Sanders added Dr. Adams as a defendant in her case.

PHRC staff conducted an investigation and worked with the parties to try to eliminate the discriminatory practices. These efforts were not successful, so a public hearing was held. Almost four and a half years after Ms. Sanders was fired, the PHRC found that Ms. Sanders had proven her allegations of sex-based discrimination, and they awarded her lost wages, plus six percent interest, as well as compensation for the amount she had unexpectedly had to pay for health insurance as a result of being terminated from her employment at the animal hospital.

 

 

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 16 Pa. Code § 41.102 (2009).
4 Id.
5 Emp. Discrim. Coord., supra note 741, at § 42:5 (citing Anderson v. Upper Bucks County Area Vocational Technical Sch., 373 A.2d 126 (Pa. Commw. Ct. 1977).
6 11 West's Pa. Forms, Employment Law § 4.22 (2009).
7 43 Pa. Cons. Stat. Ann. § 954(b) (West 2010).
8 Id. at § 954(c).
9 Brennan v. Nat’l Telephone Directory Corp., 850 F. Supp. 331, 345 (E.D. Pa. 1994); Clay v, Advanced Computer Applicatons, Inc., 559 A.2d 917 (Pa. 1989).
10 43 Pa. Cons. Stat. Ann. § 962(b) (West 2010).
11 Id. at § 959(h).
12 Leechburg Area Sch. Dist. v. Pa. Human Relations Comm’n, 339 A.2d 850, 852 (Pa. Commw. Ct. 1975).
13 Id. at 853.
14 Brennan v. Nat’l Tel. Directory Corp., 850 F.Supp. 331, 342 (E.D.Pa. 1994).
15 Id. at 344.
16 Id. (citing Gallo v. John Powell Chevrolet, Inc., 765 F.Supp. 198, 209 (M.D.Pa.1991).
17 EEOC, http://www.eeoc.gov/laws/types/pregnancy.cfm (last visited Jan. 22, 2010).
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
24 42 U.S.C.A. §2000e(b) (West 2009).
25 29 C.F.R. §1614.103 (2009).
26 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-ii (Last visited Mar. 1, 2010).
27 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-i (Last visited Mar. 1, 2010).
28 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-iii (Last visited Mar. 1, 2010).
29 29 C.F.R. §1614.105(a)(1) (2010).
30 EEOC Compliance Manual “Threshold Issues”. http://www.eeoc.gov/policy/docs/threshold.html#2-IV-A (last visited Feb. 26, 2010).
31 Emp. Discrim. Coord., supra note 760, at § 3:16.
32 Id.
33 Id.
34 Id.
35 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); (holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).
36 Emp. Discrim. Coord., supra note 760, at § 3:16.
37 Id.
38 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
39 Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 752 (E.D. Pa. 2002).
40 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)).
41 Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 754 (E.D. Pa. 2002).
42 Id. (citing Piraino v. Int’l Orientation Resources, Inc., 84 F.3d 270, 274 (7th Cir. 1996)).
43 Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 754 (E.D. Pa. 2002).
44 29 U.S.C. §§ 2611-2654, 42 U.S.C. §§ 12101-12213 (Dec. 2009).
45 U.S. Department of Labor – Wage and Hour Division, http://www.dol.gov/whd/fmla/index.htm (last visited Jan. 22, 2010).
46 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).
47 EEOC, http://www.eeoc.gov/policy/docs/fmlaada.html (last visited Jan. 22, 2010).
48 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).
49 Id.
50 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).
51 42 U.S.C.A. § 12102 (West 2009).
52 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)).
53 Brennan v. Nat’l Tel. Directory Corp., 850 F.Supp. 331, 344 (E.D.Pa. 1994)(quoting 29 C.F.R. 1630.2(h) App. (1993)).
54 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).
55 Id.
56 29 C.F.R. §1604.10 (a) (2009).
57 29 C.F.R. § 1604.10 (b) (2009).
58 Johnson v. Univ. of Iowa, 408 F.Supp.2d 728, 741 (S.D.Iowa 2004).
59 42 U.S.C.A. § 2000e-5(g)(1) (West 2009).
60 Id. at § 2000e-5(g)(2)(B)(i)-(ii).
61 Id. at § 1981a-(b)(1).
62 Id. at § 1981a-(b)(3).
63 Pennsylvania Human Relations Commission, http://sites.state.pa.us/PA_Exec/PHRC/legal/finalorders/E47121.pdf (last visited Feb. 27, 2010).