Pregnancy Discrimination

Pregnancy discrimination, like the would-be babies, comes in all shapes and sizes. Sometimes the pregnancy discrimination is obvious; sometimes subtle. Either way, it is illegal, violating federal, state and city law.

What is pregnancy discrimination?

Pregnancy discrimination occurs when an employer treats a woman – whether she is a current or prospective employee – unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Pregnancy discrimination relates to every term or condition of employment: hiring, firing, salary, bonuses, job assignments, promotions, demotions, raises, being suspended, training, fringe benefits (e.g., health insurance). The employer must – in essence, treat the pregnant employee for these purposes no different than a non-pregnant employee. The employer is, otherwise, engaging in pregnancy discrimination.

Employers must similarly allow pregnant employees to work as long as they are able to perform their jobs. An employer may not demand a pregnant woman suffering from a medical condition stays out of work until the baby is born. The employee must, instead, be allowed to return to work once she recovers from her medical condition. Additionally, an employer may not prohibit an employee from returning to work for a predetermined length of time after childbirth.

What statutes protect against pregnancy discrimination?

Federal law: Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits discrimination based on pregnancy. This statute, however, applies only to workplaces with 15 or more employees. An employer may not treat a woman (applicant or employee) unfavorably because of pregnancy, childbirth or a related medical condition with regard to any term or condition of employment.

New York Law: The New York Human Rights Law protects against pregnancy discrimination.

New York City Law: The New York City Human Rights Law protects against pregnancy discrimination.

What happens if a pregnant woman is unable to perform some of her job duties or is temporarily disabled?

If a woman is temporarily unable to perform her job due to a pregnancy or childbirth-related medical condition, employers must give pregnant employees the same treatment and benefits they give to other employees with temporary disabilities. If, for example, an employer allows a temporarily disabled employee to perform alternative assignments or take paid leave for medical conditions, the employer must provide the same for a woman who is pregnant or suffering from a related medical condition.  This would also include providing light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Similarly, a pregnant woman’s seniority, benefits and privileges of employment must accrue in the same manner they accrue for other temporarily disabled employees. Health insurance must cover pregnancy expenses and be reimbursed to the same extent as other medical conditions. No higher deductible can be imposed. Employers must provide the same health benefits for spouses of male employees as they do for spouses of female employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA).  An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).

Harassing a pregnant woman for being pregnant is illegal.

It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Pregnancy-related harassment occurs when a pregnant women is treated differently solely because she is pregnant.

What laws protect women on breast feeding or pumping when returning work?

Under New York’s Breastfeeding in the Workplace Accommodation Law, an employer cannot discriminate against employee for choosing to breast feed or pump milk while at work.

The law further guarantees breastfeeding mothers the right to pump milk at work for three years after giving birth. Employers are required to give employees at least 20 minutes for each break and must give nursing mothers a break once every three hours. Employees have the right to use paid break or meal times, or reasonable unpaid break times, to pump milk.

Employers must attempt to accommodate an employee’s request for a private place to pump milk. An employer is, in fact, required to provide employees with a private room or other location close to the employee’s work area. If the employer cannot provide a dedicated lactation room, a temporarily vacant room may be used instead. The lactation room, under New York Law, cannot be a restroom or toilet stall. The room must be private; it cannot be open to other employees, customers or members of the public while an employee is pumping break milk. It should have a door with a functional lock.

This law applies to all employers – regardless of size.

What are pregnant employees’ rights to a leave of absence?

Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

An employer must treat an employee no different than if she did not go out on leave or is about to go out on leave. An employer, accordingly, violates the FMLA if it reduces an employee’s responsibilities or client base because she is about to or is returning from leave. An employer similarly violates the FMLA if it gives an employee a performance review in anticipation of her going out on leave because the employer is – by definition – treating the employee differently than other employees.

Pregnant employees can take leave, if eligible, under the Family and Medical Leave Act (FMLA) of 1993. An eligible new parent may take 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) to care of the new child. An employee is eligible for FMLA leave if she has worked for the employer for 12 months prior to taking the leave and the employer must have a at least 50 employees.

If you have any questions about this, contact the pregnancy discrimination lawyers at Lipsky Lowe.

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