Women make up nearly 50 percent of the workforce, according to the United States Department of Labor, and of those, approximately 85 percent will become mothers during the course of their career. The U.S. Census Bureau reports that in the past decade, pregnant women remain working longer and return to work sooner than at any previous time in history. Yet, during a 10-year period, over 50,000 claims of pregnancy discrimination were reported to the Equal Employment Opportunity Commission (EEOC) and local or state fair employment practices agencies.
Under the Pregnancy Discrimination Act (PDA), employers with 15 or more employees are forbidden from discriminating against pregnant women for any aspect of employment, including hiring, firing, health insurance, disability leave, wages, promotions, job assignments, and layoffs.
Though the PDA does not require employers to accommodate pregnant employees, it does require they treat pregnant employees the same as any other temporarily disabled non-pregnant employee. If employers provide light duty work, alternative assignments, disability leave, or unpaid leave for temporarily disabled employees, they are expected to provide the same for pregnant employees.
In addition, certain pregnancy-related medical impairments or conditions may also be covered by the Americans with Disabilities Act (ADA), such as gestational diabetes or preeclampsia. Preeclampsia is a serious medical condition that causes pregnancy-induced high blood pressure that often requires strict bed rest to stabilize blood pressure and reduce the risk of early labor. In such cases, employers may be required to provide reasonable accommodations under the ADA, such as leave or job modification, as they would for non-pregnant employees with serious medical conditions.
Employers cannot determine a pregnant employee’s ability to work by determining special procedures for pregnant employees by singling out pregnancy-related conditions. Employers can, however, require a doctor’s statement regarding the pregnant employee’s ability to work if the employer requires the same of all employees before granting leave or sick benefits.
Pregnancy discrimination exists when a female employee or job applicant is treated unfairly, inappropriately, or with hostility because of her pregnancy, a pregnancy-related medical condition, or childbirth. Examples of pregnancy discrimination include:
- Refusing to hire: An employer is not permitted to deny hiring female applicants who are pregnant or plan to become pregnant specifically because of the pregnancy. In fact, potential employers are not legally allowed to ask a female applicant’s pregnancy status or if she plans to become pregnant during employment, and they cannot base hiring decisions based on the applicant’s family status.
- Firing: Employers cannot fire pregnant employees simply based on the fact that the employee is pregnant or their own belief that the employee’s productivity will decrease after the baby’s arrival.
- Refusing reasonable accommodations: Employers may be required to make reasonable accommodations for the pregnancy or pregnancy-related health condition, under the rules of the ADA. Employers may require a doctor’s note.
- Verbal harassment: Employers, managers, supervisors, coworkers ,or clients intimidating, making negative comments, insults, inappropriate or offensive jokes, or threats to pregnant employees constitutes harassment and creates a hostile work environment.
- No accommodations for pumping breast milk: Employers with more than 50 employees must provide breaks for pregnant and recently pregnant employees to pump breast milk under the Affordable Care Act (ACA). Employers are required to designate a private, secure, and safe location for pumping other than the restroom. Employers are not permitted to discourage, harass, or fire employees for taking breaks to pump breast milk.
- Retaliation: The EEOC reports that retaliation is the most common form of discrimination resulting from reporting workplace discrimination. Retaliation can take many forms, including demotions, firing, bad performance reviews, and verbal or physical harassment.
What Can I Do if My Employer Does Not Make Reasonable Accommodations?
Though employers may be required to provide reasonable accommodations for pregnant employees under the ADA, determining whether a reasonable accommodation is necessary is somewhat subjective on the employer’s part. Employers are legally required to prevent biases, however, it is up to them to determine whether or not the employee requires accommodations and of what type. Research your company’s policies regarding pregnancy discrimination, reasonable accommodations, and your legal rights.
You should not compromise your mental or physical health in order to perform your work duties at the same level you were able to prior to the pregnancy. Rather than waiting for your employer to determine what is best for you, be assertive, evaluate your duties, and overall satisfaction to determine what is reasonable for you to perform during your pregnancy.
Keep in mind that your employer may not be purposely unwilling to establish reasonable accommodations but may not be offering support simply because they are unaware you require any. Present your decisions and reasonable accommodations to your employer, and be prepared to be assertive if your employer oversteps the boundaries you have outlined.
Regardless of whether you need reasonable accommodations for health concerns, consistent self-care is a necessary component of working while pregnant. Leave home earlier for work, and build extra time between meetings to avoid rushing. Spread your duties over a reasonable timeframe, and do not set unrealistic deadlines for yourself. Take health days and mental health days whenever you can to unwind and reduce added stress. Discuss flexibility of your work schedule with your supervisor or employer and whether you can work remotely from home if you are able.
How Can I Protect Myself From Pregnancy Discrimination at Work?
If a pregnancy-related medical condition keeps you from temporarily performing your regular job duties, you have the same rights as any other temporarily disabled employee to have modifications to allow you to continue to work or take medical leave due to health risks. There are steps you can take to protect yourself against pregnancy discrimination, such as the following:
- Announce your pregnancy as soon as possible. Announce your pregnancy as soon as possible. This allows you to protect yourself if your employer attempts to discriminate against you due to your pregnancy. You should try to take this step early into your pregnancy. If your employer learns of the pregnancy another way and demotes or fires you, proving those actions were taken due to the pregnancy is likely impossible.
- Reveal all health conditions. If you develop a pregnancy-related health condition that may affect your ability to work, notify your employer right away. Doing so establishes you are covered under your ADA rights for reasonable work accommodations, including additional time off for medical appointments and more frequent break periods.
- Report any pregnancy discrimination. If you are experiencing pregnancy discrimination from your employer, manager, supervisor, or coworkers, report the incidents in writing to the Human Resources (HR) department. In addition to this creating a record of your complaint, it will also provide you protection by anti-retaliation laws.
- Document all discriminatory incidents. Maintain written records of all incidents of discrimination and all communication between you and your employer and the HR department. If you have in-person meetings, follow-up with an email reiterating what was discussed to create a written record of the meeting. Maintaining records can help you prove your discrimination case should your employer terminate you because of your pregnancy or a related condition.
If you are demoted or fired from your job during your pregnancy or soon after giving birth, consult a knowledgeable attorney to learn about your rights and whether you should pursue a lawsuit.
Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C. Advocate for Women Experiencing Workplace Pregnancy Discrimination
If your rights have been violated at work because of your pregnancy or a related condition, one of our experienced Cherry Hill employment lawyers at Sidney L. Gold & Associates, P.C. can represent you. Call us today at 215-569-1999 or contact us online to schedule a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey, including Cherry Hill, Haddonfield, Marlton, Moorestown, and Mount Laurel.