Pregnant and recently-pregnant women workers are protected by the Pregnancy Discrimination Act (PDA) 1978. The PDA offers significant protection against workplace discrimination on the basis of pregnancy, childbirth and medical conditions related to pregnancy. The PDA is applicable to workplaces with at least 15 employees.
Although the PDA has been in effect for over four decades now, pregnancy discrimination is still a common occurrence in modern-day workplaces. The data made available by the US Equal Employment Opportunity Commission (EEOC) shows a steady decline in the number of pregnancy discrimination charges received by the Commission between 2010 and 2020.
However, such discrimination is still rampant; many female workers don’t file discrimination claims because they’re unaware of their rights and don’t consult a lawyer specializing in pregnancy discrimination claims.
In this post, we’ll take a look at the top seven ways you could be discriminating against an employee who is pregnant or has recently given birth to a baby.
1. Refusal to hire a woman job applicant because she is pregnant or plans to become pregnant
Refusal to hire a woman job applicant because she is pregnant or plans to become pregnant in the future effectively forms the basis of an EEOC pregnancy discrimination claim.
Employers cannot refuse to hire a candidate for a position simply because they’re pregnant or want to start a family in the near future.
It may even be illegal to ask job applicants if they intend to have children.
Many companies try to justify such discriminatory hiring practices by saying they only want to recruit someone who can continue working for a year or two sans any interruption. The company may be keen to avoid what it considers as interruption or negative economic impact, but it’s illegal.
Hiring managers cannot make assumptions based on stereotypes or biases about the performance or behavior of a female job applicant in the workplace during pregnancy or after childbirth.
2. Firing a woman worker because she is pregnant or gave birth
If someone is fired because they are pregnant or have recently given birth, they can file a discrimination lawsuit. However, they’ll need evidence to establish that they were fired due to pregnancy, childbirth, or a related medical condition and not for some other reason.
Employers have the right to fire an employee for numerous other reasons while pregnant, such as poor job performance, insubordination, improver behavior in the workplace and so on. But the PDA protects women workers against adverse employment action based on their pregnancy status.
3. Harassment of a pregnant or new mother in the workplace
Occasional derogatory comments in the workplace may not necessarily constitute harassment. However, persistent conduct – such as offensive jokes, insults, intimidation or harassing comments over pregnancy or childbirth – that directly create a hostile working environment for a pregnant or recently-pregnant worker and affect her work performance and mental health is viewed as harassment in legal terms.
For someone at the receiving end of such harassment in the workplace, it’s a good idea to document all such incidents and when possible, collect documentary evidence. A pregnancy discrimination attorney can further guide them on how to use this material to file a claim against the employer.
4. Altering employment expectations against an employee’s wishes
Forcing a woman employee who is pregnant or recently gave birth to a child to take time off or change job assignment is considered as a discriminatory practice under the PDA. Also, employers cannot keep such workers from attending career-building training programs.
An employer may try to reduce the number of hours that a woman works during her pregnancy or after childbirth, or use other such tactics to limit her productivity. Then, they use poor job performance as a reason for dismissal. At times, employers may also refuse to consider such workers for promotion.
Altering employment expectations in this manner can form the basis of a pregnancy discrimination claim.
5. Not providing reasonable accommodations
Under the Americans with Disabilities Act (ADA), certain medical conditions related to pregnancy qualify as disabilities. Therefore, employers are required by law to offer reasonable accommodations under the ADA if an employee is afflicted by such conditions.
If a pregnant woman worker requests reasonable accommodations, employers must provide such accommodations as mandated by the law. Some common examples of reasonable accommodations for pregnant workers are:
- Providing a chair/stool and allowing them to sit during their work shifts
- Changing their work schedule if they experience morning sickness during pregnancy or after childbirth
- Providing a workstation near the restroom
A pregnant worker will most likely need to provide a physician’s note or medical certificate to the employer to document her medical condition.
6. Restricting or denying pregnancy related leave
The Family and Medical Leave Act (FMLA) and the PDA forbid employers from implementing discriminatory leave policies for pregnant/recently-pregnant workers.
Under the PDA, for instance, employers cannot fire women workers for being on leave when it’s covered by their sick leave policy. The PDA makes it mandatory for employers to allow women workers experiencing physical limitations due to current/recent pregnancy to take leave under the same terms and conditions as any other employee experiencing similar inability to continue working.
Under the FMLA, non-exempt employers cannot force women workers to take sick leave before they use any other type of leave available for any medical condition resulting from pregnancy or childbirth. Women workers should also get the same leave benefits as the company provides in case of medical leave or short-term disability leave. After maternity leave, a woman worker should be allowed to return to the same (or similar) job with the same benefits and terms of employment.
7. Retaliation for filing a discrimination claim
Retaliating against workers after they file a pregnancy discrimination claim is illegal. It’s one of the most common forms of discrimination. Retaliation can take the form of verbal harassment, bad performance reviews, changing job assignments or demotion.