Federal law and many state laws prohibit discrimination against a pregnant woman in the work place. This law, based on public policy and the Constitutional right to be free from discrimination, seeks to protect working women from losing their employment or being demoted due to pregnancy and the demands of pregnancy. The law does seek to protect small business from its requirements, recognizing that many small businesses simply cannot afford the cost of the procedures necessary to maintain employment of a pregnant woman.
This article outlines the scope of the law, its exceptions, and remedies available for breach.
The Basic Federal Law:
The Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. 42 USCS § 2000e. The Act applies to all employers having at least 15 or more than 15 employees. PDA states that pregnant women or women affected by pregnancy related conditions must be treated in the same manner as any other employee, and if a pregnant employee is unable to perform her duties because of pregnancy, her disability is to be treated on the same basis as any other disability. See our articles on Americans With Disability Act (ADA) as well as Federal Law on Age Discrimination in the Work Place.
Title VII of the Civil Rights Act prohibits employers with 15 or more employees from discriminating against employees on the basis of gender. According to the Civil rights Act, no employer may refuse to hire any person or fire any employee solely based on their sex. Employers are also prohibited from engaging in any sexual discriminatory practices. However, the Supreme Court decision in Gilbert’s case made it very clear that discrimination based on pregnancy is not considered sexual discrimination under the Civil Rights Act. The Pregnancy Discrimination Act was enacted to cover this loophole.
PDA states that pregnant and non pregnant women should be treated alike, both in terms of benefits received and all other aspects. The PDA prohibits discrimination against pregnant women in different areas of employment such as hiring, firing, seniority rights, job security, and receipt of fringe benefits.
PDA specifically states that any pregnant employee in the organization should be given the same benefits as any other employee in the organization. Although employers are not required to provide health insurance benefits for abortion, there are certain cases where the employer may become liable for payment. They are: a) cases where the abortion was necessary and conducted to save the mother because carrying the child to the term would endanger the life of the mother; or b) cases where the abortion resulted in any medical complications. However, employers may have to pay abortion benefits to the employees if there are previous agreement between the employer and employee governing the same.
The PDA makes it very clear that no woman should be subject to discriminatory practices on account of being pregnant, or possibly being pregnant. Discrimination based on pregnancy can arise long before a woman actually becomes pregnant. For example, at the hiring stage employers can show prejudice towards applicants who may require leave in the future for childbearing. The PDA does not allow such discriminatory practices and provides that no employee should be treated differently because she is or may become pregnant.
According to a report by the National Partnership for Women & Families, pregnancy discrimination complaints to the Equal Employment Opportunity Commission rose dramatically in recent years. In 1992, approximately 3,385 people filed complaints of pregnancy discrimination with the EEOC. The year 2007 showed a 65% increase in the complaint filing rate as compared to the year 1992, and around 5,587 complaints were filed in 2007. In the year 2008, EEOC received 6,285 charges of pregnancy based discrimination and was successful in resolving 5,292 of them.
Protections Afforded the Employee:
Employers allowing leave for disabilities are required to allow leave for pregnancy related disabilities as well. Employers may not force pregnant employees to take leave before child birth or decide a pre determined start date for their maternity leave. For example, a pregnant employee may not be forced to begin her maternity leave by the end of the seventh or eighth month of her pregnancy. Pregnant women must be given an opportunity to work as long as they are willing and able to work. If an employee takes a short break from work on account of her pregnancy related condition she may not be forced to extend the leave period till the baby’s birth. Employers are also prohibited from forcing employees to stay back from work for a pre-set period after child birth.
Employers are not allowed to ask pregnant employees to undergo any tests or special procedures to test their ability to work. In some organizations it is mandatory for people suffering from any illness/disability to produce a doctor’s statement before they are granted leave/ sick benefits. Such employers may also ask pregnant employees to submit a doctor’s statement concerning their inability to work. Similarly, an employee returning from maternity leave may be asked to produce medical certification showing their ability to work only if such certification is required from employees returning to work from other temporary disabilities. If a pregnant employee is temporarily not able to perform her duties because of pregnancy, she may be treated in the same manner as any other employee with a temporary disability. For example, if the employer allows work from home or flexible timing to a temporary disabled employee, same options should be available to pregnant employees as well.
Women who intend to be pregnant and women having abortions are also covered by the Act. An employer may not refuse to hire an applicant because she underwent an abortion. Existing employees may not be discriminated on the ground of undergoing abortion either. For example, in Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358 (3d Cir. Pa. 2008) the plaintiff who was a former employee of C.A.R.S appealed from a judgment of the United States District Court for the Western District of Pennsylvania which granted summary judgment to defendant employer on the employee’s gender discrimination claim under the Pregnancy Discrimination Act, 42 U.S.C.S. § 2000e(k). The former employee alleged that the employer terminated her employment because she underwent a surgical abortion. The employee was fired three working days after the employee’s husband notified the employer that the employee was undergoing an abortion. The court held that the proximity between the notification and firing was sufficient enough to show a casual connection between the abortion and termination of employment. As a result the court reversed the summary judgment granted to the employer and remanded the case for further proceedings.
All fringe benefits except health insurance, offered for other medical conditions must be provided for employees who have abortions also. Health insurance benefits may be provided to abortion cases where the abortion was conducted to save the life of the mother. Additionally, health insurance benefits should cover other medical complications resulting from abortions.
Some employers provide fringe benefits to its employees. Some examples of fringe benefits offered include, sick leave with pay during maternity leave or payment into health or disability plans. Such fringe benefits must be applied to pregnancy related conditions in the same way as they apply to other medical conditions
Health insurance provided by the employer, if any, should cover pregnancy related expenses also. Pregnancy should be treated in the same manner as any other medical condition covered under insurance. Reimbursement of pregnancy related expenses should be made in the same way as done for any other medical conditions. The level of health benefits for spouses of male employees and spouses of female employees should be the same. Pregnancy-related benefits cannot be limited to married employees. An unmarried pregnant woman should be treated on the same footing as a married pregnant woman.
Generally, an employer may not terminate an employee because she is pregnant, or refuse to hire a pregnant applicant on account of her pregnancy if she is eligible and qualified for the position. While evaluating a pregnant applicant, employers may not take into consideration prejudices of other employees, customers or clients. For example, an employer may not refrain from hiring a pregnant applicant to satisfy a client who does not like hiring pregnant women.
An employer may not refuse to promote an employee because she is pregnant. While deciding seniority in positions or calculating pay hikes an employer has to treat pregnant employees in the same way as other temporarily disabled employees.
If a pregnant employee is not able to perform her routine work and requests a transfer to do some other work, it is not mandatory for an employer to consider or allow such transfer requests. However, the employer is bound to consider transfer requests from pregnant employees if the employer accepts transfer requests from employees with temporary disabilities.
Women taking leave for infertility treatment may not be discriminated against in any manner. PDA protects not only women who are pregnant but those who intend to become pregnant as well. In Hall v. Nalco Co. 534 F.3d 644 (7th Cir. Ill. 2008) the appellant, former employee of Nalco filed an appeal of the district court decision granting summary judgment to Nalco, Hall’s former employer. Hall had filed a case pursuant to 42 U.S.C.S. § 2000e(k) of the Pregnancy Discrimination Act (PDA) in the district court. Hall alleged that she was terminated for taking breaks from work to undergo infertility treatments. The district court held that infertility was a gender neutral condition and that such claim cannot be raised as sexual discrimination. However, the court of appeals held that Hall took breaks to undergo certain special procedures for child bearing which are performed on females alone. Therefore, the court held that infertility treatment in that case was a gender specific treatment and not a gender neutral treatment. Consequently, the appellate court reversed the district court’s judgment and remanded the case.
Enforcement Mechanisms:
The EEOC:
The Equal Employment Opportunity Commission (EEOC) is a federal agency of the United States. The EEOC aims at ending employment discrimination. To that end the EEOC Investigates discrimination complaints based on an individual’s race, color, national origin, religion, sex, age, or disability. Additionally, the Commission files suit on behalf of allegedly discriminated employees. EEOC also adjudicates claims of discrimination brought against federal agencies. The EEOC was established in 1965. It has five commissioners and a General Counsel appointed by the President and confirmed by the Senate. The General counsel and commissioners are assigned specific duties.
The EEOC publishes regulations annually in Title 29 of the Code of Federal Regulations (CFR. The CFR is available on line through the U.S. Government Printing Office. Under title 29 the regulations are listed under part 1600 through 1699. Part 1604 lays down ‘Guidelines on Discrimination Because of Sex’.
Most states also have their own employment laws and agencies that enforce the state employment laws.
Private Legal Action:
In both Federal Court and in most states, the employee may also seek relief (often only after exhausting administrative remedies) directly against the employer in court for such discrimination and multiple of damages can be obtained if the correct facts are demonstrated. In California, exhaustion of the EEOC remedy is required before one obtains a “right to sue” document from the EEOC.
Conclusion:
While many employers feel the imposition of such requirements upon them are a tremendous burden in the competitive markets of today, in reality almost all of Europe and much of the rest of the developed world imposes far greater responsibilities upon large employers including providing six months of paid leave for both the pregnant woman and her spouse. Seen in that perspective, the requirements of the United States are minor, indeed.
Note that the smaller employers are not burdened with this requirement, though our experience has been that in the smaller working environment, in which bosses get to know employees quite well, adjustment to the needs of a pregnant woman are usually voluntarily accomplished.