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PREGNANCY DISCRIMINATION – WHAT EMPLOYEES SHOULD KNOW

Posted by Kashif Haque | Mar 25, 2019 | 0 Comments

Pregnant at work 1

The Pregnancy Discrimination Act was passed by Congress in 1978 as an amendment to The Civil Rights Act of 1964. Despite this being in place for nearly 40 years now, women still continue to face workplace discrimination due to pregnancy, or pregnancy-related issues. PDA applies to all employees, regardless of their length of time at a specific employer, so long as the company employees at least 15 people.

WHAT ARE PREGNANCY DISCRIMINATION VIOLATIONS?

If you are pregnant (or may become pregnant), you may be wondering what pregnancy discrimination looks like and how you can protect yourself from experiencing it. Here are some of the most important facts to know about pregnancy discrimination at work.

Employers may not (because of pregnancy):

  • Refuse to hire or promote an employee
  • Terminate an employee
  • Ask interview questions that they would not ask non-pregnant applicants
  • Require employees to give notice of pregnancy (unless it is for a legitimate business purpose)
  • Discriminate against those who may become pregnant
  • Stop a pregnant employee from working if they want to and are physically able
  • Discriminate against an employee that had or considered having an abortion
  • Demand medical notes from a pregnant employee's doctor concerning work status if they do not require them from non-pregnant employees on short term disability leave

RETALIATION

Additionally, employers may not retaliate against an employee/applicant that makes a complaint because they feel they may have been discriminated against. Retaliation could be termination, demotion, or lowering of pay to name a few examples.

ODD EMPLOYER EXEMPTIONS

However, some courts have held that you can be treated differently depending on where you work if you are unmarried and pregnant. It has been stated that religious organizations or ones working with youth may discriminate against employees who violate the organization's principles condemning pre-marital sex.

These employers would have to demonstrate that they hold males to the same standards – and are not only punishing female employees. However, these circumstances are few and far between, and this exemption does not apply to most employers.

Employers must:

  • Hold open a job for pregnancy related absence as long as they would for non-pregnancy related sick/disability leave
  • Provide health coverage on same basis as costs for non-pregnancy related medical conditions
  • Provide the same level of benefits for spouses of male employees as they do for female employees
  • Grant pregnant women on leave the ability to accrue seniority, vacation, pay increases, and temporary disability benefits in the same way as those on leave not due to pregnancy
  • Allow appropriate time/place for lactation purposes, including a private area to pump breast milk

SPECIAL EMPLOYEE CIRCUMSTANCES

It is important to also consider that a woman may have additional rights under programs such as FMLA or CFRA (in California). Under FMLA (Family Medical Leave Act), a pregnant employee may be entitled to up to 12 weeks of unpaid leave so long as they have worked for the employer at least one year, during which time they worked at least 1,250 hours. Also, the company must employee at least 50 people in a 75 mile radius.

This differs only slightly from CFRA (California Family Rights Act) which may allow an additional 12 weeks of unpaid leave after the birth of a child for bonding and care purposes. CFRA does not cover pregnancy as a “serious health condition” and therefore would have to be taken after the exhaustion of either FMLA or Pregnancy Disability Leave, which run concurrently.

The eligibility requirements for CFRA and FMLA are the same. Both allow employees to take time off to care for either themselves or a family member. Each includes same-sex spouses in the eligibility, but only CFRA includes eligibility for Registered-Domestic Partners.

If you feel you may have been discriminated against because of your pregnancy or a pregnancy related issue, please call our firm for a free consultation. No woman should have to feel shame for being pregnant, especially not in the workplace.

Sources:

http://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/pregnancy-discrimination-act/

http://employment.findlaw.com/employment-discrimination/pregnancy-discrimination-in-the-workplace.html

https://www.eeoc.gov/laws/types/pregnancy.cfm

https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/californiadifferencecfrafmla.aspx

https://postdocs.ucsf.edu/fmla-and-cfra-comparison

About the Author

Kashif Haque

Kashif Haque is a trial attorney and one of the founding attorneys of Aegis Law Firm. He served as the 2015 Chairman of the Orange County Bar Association—Labor and Employment Section. Mr. Haque has obtained millions of dollars on behalf of his clients through trial, arbitration and settlement. A...

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