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Discrimination & Retaliation      

PROTECTING THE PREGNANT EMPLOYEE

A: Both state and federal laws prohibit pregnancy discrimination. Pregnancy discrimination is defined as discrimination on the basis of pregnancy, childbirth, and related medical conditions. The protections against pregnancy discrimination apply to decisions regarding hiring and firing as well as decisions concerning compensation, terms, conditions, and privileges of employment. Pregnancy discrimination may be demonstrated by any or all of the following actions by an employer:
       refusing to hire or employ a pregnant applicant;
      refusing to select an applicant or employee for a training program leading to employment or promotion;
       refusing to promote or transfer an eligible pregnant employee;
       firing or demoting a pregnant employee;
       refusing to provide health benefits for pregnancy if the employer provides such benefits for other temporary disabilities;
       harassing an applicant or employee because of pregnancy;
       retaliating against an employee because of pregnancy or because the employee has exercised her right to take a pregnancy disability leave or transfer;
      refusing to accommodate an employee who is temporarily disabled by pregnancy to the same extent that other temporarily disabled employees are accommodated;
       refusing to grant an employee disabled by pregnancy a disability leave;
       denying the same or a similar job to a pregnant employee when she returns from a pregnancy-related leave;
       treating a pregnant employee differently than other temporarily disabled employees.

     Under the law, pregnancy (and all its related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth) is considered a temporary disability. The employer must therefore give pregnant employees the same treatment and benefits that it gives to employees with other temporary disabilities.

     Here are some situations which are potentially illegal pregnancy discrimination:
       During a job interview, an applicant is asked how many children she has and if she is planning to get pregnant again. The applicant says she is two months pregnant. The interviewer then tells her to come back after she has given birth and is ready to work.
       A female employee is fired after telling her boss she is pregnant, even though she is still able to work for several more months.
       A pregnant employee asks her boss if she can stop lifting heavy boxes during her pregnancy. The boss says no, even though another employee did not have to lift boxes at work while recovering from surgery. The pregnant worker is forced to quit her job.
       A pregnant employee took time off to visit her doctor for prenatal care. Her pay is docked and she is eventually disciplined for missing work, even though other workers who need ongoing medical treatment are not docked nor disciplined when they take time off to visit their doctors.

     Who is protected under the law?
     The law protects pregnant women whose physical condition qualifies them for disability leave under company policy, and who work for employers with 5 or more employees.

     The Family and Medical Leave Act (FMLA) also covers employees, male or female, who have been working at least a year for employers with 50 or more employees, and allows these employees to take unpaid leave to care for a newborn or newly-adopted child or for certain seriously ill family members, or to recover from their own serious health conditions.

     Does a potential or current employee have to tell the employer about the pregnancy?
Since an employer cannot refuse to hire an applicant because of a pregnancy-related condition as long as she is able to perform the major functions of the job, therefore, an employer cannot ask the applicant whether the applicant is pregnant or plans to have children. The applicant may, therefore, choose to keep her pregnancy to herself if she is not yet showing.

     If a current employee does not require or anticipate any kind of leave for medical visits or pregnancy-related sickness, and is otherwise able to perform the major functions of her job, she may choose not to share her pregnancy with her employer. However, if medical leave or visits are expected, the employee may wish to consult with her employer about notification in such matters, which may require the employee to disclose the pregnancy.

     Can the employer prevent the employee from working while pregnant or require her to take a leave?

     It is illegal for an employer to force a pregnant employee to go on maternity or disability leave while she is still able to work. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If they have been absent from work as a result of a pregnancy-related condition and they recover, the employer may not require them to remain on leave until the baby's birth. Also, an employer may not have a rule preventing them from returning to work for a predetermined length of time after childbirth.

     Can the employer prevent a pregnant employee from working in certain areas or doing certain tasks because of health and safety concerns?
    
     No. If the employee is able to perform the basic functions of her job, and does not request any change in job duties, she must be permitted to keep doing her job at all times during pregnancy. If she voluntarily requests a modification of her job duties, then the employer must treat the request in the same way as other similar requests made by temporarily-disabled employees. An employer may use any procedure to screen an employees' ability to work. For example, an employer may require a pregnant employee to submit a doctor's statement concerning her lifting requirements before being excused from heavy lifting in the same way the employer may require any disabled employee who makes such a request.

     What happens to the employee’s job while on pregnancy leave?
     Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. Any leave, seniority, or reinstatement rights other workers get from the employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled.

     What are the remedies available to an employee who was discriminated against because she was pregnant?

     Pregnant employees who have been discriminated against may recover the following remedies: back pay, hiring, promotion, reinstatement, front pay, compensatory damages, including emotional pain and suffering, punitive damages, and other applicable remedies. Aggrieved employees may also recover attorneys' fees, expert witness fees, and court costs.

     The question of whether pregnancy discrimination exists in a particular situation is complex and requires evaluation by an experienced attorney. If you or someone you know believe that they are being discriminated because of pregnancy, they are better served to consult with an attorney immediately.

© Law Offices C. Joe Sayas, Jr.