What Do You Know About Pregnancy Discrimination?
It is no secret that pregnancy, while often a blessing, can also be a burden. This is often most true in the context of employment. While there are legal protections prohibiting pregnancy discrimination in many ways, there are still many victims, some who never even realize they were discriminated against. To raise some awareness of what forms pregnancy discrimination can take and help women understand their rights, here is a list of some of the possibly lesser known facts related to pregnancy discrimination.
Lets start from the top:
1- People with pregnancy potential are protected
You likely know that generally speaking, employers cannot refuse to hire women because they are currently pregnant. However, it may be surprising to learn that it is also illegal to refuse to hire a woman because she might become pregnant in the future. Perhaps this makes sense if you understand that pregnancy discrimination is legally considered a form of sex discrimination. If it were not illegal, employers would be free to refuse to hire most women, citing their potential to become pregnant. Really, then, this protects many more women than just pregnant women. What might an example of this form of employment discrimination look like? Let’s see:
Phoebe is a young woman looking for a job in marketing. At one agency, she gets an interview based on her credentials. When she goes in, she is excited initially, but it dampens at some of the questions being asked. She is asked whether or not she has kids at home, which she says no to. Then, she is asked if she plans to do “the family thing” any time soon. She is not sure how to respond to this, so Phoebe just says she is not sure. She is not hired. Disgruntled by the family questions at her interview, Phoebe later looks into the hiring practices of the marketing agency and notices that young men outnumber young women nine to one. She suspects this may qualify as sex discrimination and contacts a discrimination attorney.
Here, Phoebe is adept at seeing the signs of discrimination against women, which seems solely based on a different biological potential between men and women- that is, the ability to get pregnant. Many employers are biased against people they believe will need to take time off for pregnancy and sometimes this bias is so extreme that discrimination will extend not just to pregnant women, but to all women of child-bearing age. Phoebe’s interviewer should not be asking questions about children, current or future, as that is prohibited by state law.
2- Some pregnancies demand protection from disability discrimination
While pregnancy in and of itself is not necessarily considered a disability, sometimes pregnancies are complicated and can result in conditions that are considered disabilities. Legally speaking, disabilities have to limit major life activity. In such cases, employers are required to treat the woman suffering as they would any other person with a disability, which means they are obligated to make reasonable accommodations. A reasonable accommodation is just a change to the employee’s work environment that allows the employee to perform the essential job duties. Sometimes this can entail a leave of absence for up to four months. Moreover, pregnancy leave is unique in that it applies to all female employees of covered employers, which includes employees who are part-time or were recently hired. Examples of conditions related to pregnancy that might be deemed disabling include severe morning sickness, gestational diabetes, preeclampsia, post-partum depression, loss or end of pregnancy, and recovery from loss or end of pregnancy, among others.
3- Breastfeeding /pumping time must be allowed
Employers are obligated to provide lactation breaks, or time for recently pregnant women to express milk by pumping or breastfeeding, as long as the breaks would not seriously interrupt business operations. A specific amount of time is not specified, but it must be reasonable. This means it has to take into account more than just the actual time spent expressing milk; it must also consider a number of breaks needed, the time it takes to get to and from the lactation space, any wait time for the lactation space, and the time it takes to set up and later clean up and store the milk, among other things. Lactation breaks can be taken during normally paid breaks or during unpaid extra breaks. Additionally, as you might have assumed, employers must try to provide employees with a private area for lactation breaks (one that is not a toilet stall). This place can be the employee’s office if it fulfills the requirements (e.g. is private).
While discriminating against a woman because of her need to breastfeed, pump, or treat medical conditions related to breastfeeding is illegal, it does occasionally happen. An example may help illustrate what that could look like:
Blossom recently gave birth and is back at work. However, she is still breastfeeding her new baby and needs time during the workday to pump. Her employer allows her to use a room down the hall for this and, in that room, there is a small fridge in which she can store breast milk. During Blossom’s first week back, she is told four jokes about breastfeeding and breast milk by her coworkers, who are mostly male. Blossom tells them to cut it out, but they don’t take her seriously, so she files an official complaint about it. Unfortunately, the complaint does not amount to any resolution and the jokes continue.
In this scenario, Blossom is being harassed because she is breastfeeding, which is considered unlawful pregnancy, or sex-based, discrimination. In fact, even more, employers are liable for workplace harassment than for discrimination (not all employers are subject to discrimination law). If she wanted to, Blossom could file a lawsuit against her employer.
4- Medical benefits during maternity leave must remain
During pregnancy disability leave and family leaves of absence (e.g. time to bond with the new child), your medical benefits should be the same as they were before. Employers are not legally allowed to change the contribution rates during such time off. Moreover, it is illegal for employers to make new requirements for a woman returning from pregnancy-related time off to receive benefits. Were that allowed, employers could retaliate against women for taking maternity leave.
Laws relating to pregnancy discrimination can be quite complicated, and this list touches only on a few. If you think you may have been discriminated against based on your sex, pregnancy, or other protected characteristic, you should contact a Pregnancy Discrimination Attorney to discuss your rights and find a solution.
