BY: Tad T. Roumayah | IN: Employment Law
Pregnancy discrimination isn’t always obvious or immediately apparent. A recent investigation by the New York Times revealed that pregnancy discrimination in some of the largest U.S. companies often manifests in subtle, long-term denials of opportunity rather than sudden, significant consequences like demotion or termination.
State and federal employment laws are clear. Discrimination on the basis of pregnancy-related medical conditions, pregnancy, or childbirth is a form of unlawful sex discrimination under the federal Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964. The law applies to most employers with 15 or more employees, including federal, state, and local governments, private and public colleges and universities, employment agencies, and labor organizations. In Michigan, the Elliott-Larsen Civil Rights Act similarly prohibits discrimination on the basis of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.
Covered employers are required to treat women affected by pregnancy or related conditions in the same manner as other applicants or employees who have a similar ability (or inability) to work. So long as a woman is able to perform the essential functions of a job, with or without accommodation, an employer cannot refuse to hire, fail to promote, layoff, terminate, deny benefits, or otherwise treat her differently related to her pregnancy-related condition. Federal law also makes it illegal for an employer to retaliate against a worker for filing a charge of pregnancy-related discrimination or for participating in an investigation, proceeding, or hearing on behalf of a co-worker alleging discrimination.
Obviously, under the law, an employer cannot refuse to hire a pregnant woman because of its prejudices against pregnant workers. However, it also cannot refuse to do so because of real or perceived prejudice against pregnant women held by other workers, clients, or customers (e.g. telling a woman she “doesn’t fit the image” of the position or that the work would be “too strenuous for a person in her condition”). Pregnant employees must be permitted to work as long as they are able to perform their jobs and cannot be required to take or stay on leave for a predetermined length of time before or after childbirth.
The PDA also forbids discrimination based on pregnancy when it comes to any other aspect of employment, including pay, job assignments, training, promotions, fringe benefits, and any other term or condition of employment. Unfortunately, this can be extremely difficult to discern. The Times’ investigation chronicled many women’s experiences of enduring unpleasant working environments, derision, and outright hostility related to their pregnancy or recent childbirth. Although these negative attitudes may not directly correlate to negative employment consequences, they may ultimately contribute to a cascade of career-crippling effects like a manager passing over a pregnant worker for a promotion or plum assignment.
In general, the PDA requires employers to treat pregnant women similarly to employees who are temporarily disabled or suffering medical issues. Pregnancy-related conditions may be held to uniform sick leave requirements, such as requiring an employee to submit a doctor’s statement about her work restrictions before granting leave or paying sick benefits. An employer must provide workplace accommodations similar to those offered to temporarily-disabled employees (e.g., light duty, modified tasks, alternative assignments, etc.) unless this would present an undue hardship. Some impairments related to pregnancy, like gestational diabetes, may also bring the employee under the further protection of the Americans with Disabilities Act (ADA). An employer who refuses to allow a pregnant woman with gestational diabetes to take regular bathroom breaks or carry a water bottle, for example, may be in violation of both the PDA and the ADA if it cannot show its refusal to accommodate is justified.
Any employer-provided health insurance must cover and reimburse expenses for pregnancy-related conditions in the same manner and on the same basis as expenses for other medical conditions (although the PDA does not require coverage for expenses related to abortion except where the life of the mother is endangered or medical complications result from an abortion). No special, additional, or larger deductible can be imposed. Benefits may be denied for medical costs arising from an existing pregnancy if a health insurance plan excludes benefit payments for other pre-existing conditions (e.g., where a new employee who is already pregnant applies for coverage under a company’s plan).
The Family & Medical Leave Act guarantees eligible new parents 12 weeks of leave (unpaid, or paid if the employee has earned or accrued it) related to the birth or care of a new child. An employer who offers paid or unpaid leave to temporarily disabled employees must extend the same benefits to an employee who is temporarily disabled due to pregnancy, and must hold open a job for a pregnancy-related absence the same length of time that it holds jobs open for employees on sick or temporary disability leave. If an employer provides any benefits to workers on medical leave, the employer must provide the same benefits for those on medical leave for pregnancy-related conditions and treat them all the same for purposes of accrual and crediting of seniority, vacation calculation, pay increases, and sick leave or temporary disability benefits.
Unfortunately, despite the laws, women who leave the workplace for pregnancy-related conditions or to give birth often see negative long-term consequences in salary, promotions, and other advancement opportunities. Lawsuits and government agency investigations can help raise awareness about pregnancy discrimination, increase reporting of mistreatment, and hopefully reduce its pervasiveness.
If you suspect you’ve been a victim of pregnancy discrimination, please contact the experienced Employment Litigation attorneys at Sommers Schwartz – we’re here to help.
View all posts byTad T. Roumayah
Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.