August 21, 2018

Pregnancy Discrimination: An Employment Lawyer Tells All

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Each year, the US Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination. With many American companies today working hard to improve their images as equal opportunity employers that value workers equally regardless of race or gender, these number may come as a surprise.

Despite the introduction of the Pregnancy Discrimination Act, a 1978 amendment to Title VII of the Civil Rights Act of 1964, pregnant women’s professional futures are often still at risk. In fact, a recent New York Times investigation found that pregnant women are still systematically passed over for raises and promotions — and even fired just for being pregnant.

“[Pregnancy discrimination] is extremely prevalent, and we don’t always hear about it, especially when it comes to workers in hourly roles and for those women in the hiring stage,” says Heather Bussing, a Northern California employment lawyer. “A lot of people never know why they are fired or why they aren’t hired. It is rarely overt.”

LiveCareer spoke to Bussing about what pregnancy discrimination looks like, how it impacts women, and what victims of this type of discrimination can do to protect themselves. Below is a transcript of the discussion, minimally edited for style and clarity.

LiveCareer: How do you define “pregnancy discrimination” from an employment law standpoint?

Heather Bussing: It means making any adverse employment decisions at any stage of employment because the employee is pregnant.

LC: Can you give me a few examples?

HB: Sure. It could mean refusing to hire someone because they are pregnant. It could mean refusing to promote them, or refusing to allow them to go on a business trip to close a big deal because they are pregnant. It could mean refusing to give them a promotion that might require them to commute.

In other words, pregnancy discrimination is denying a worker professional opportunities that would otherwise be beneficial to them because they are pregnant. It doesn’t matter if the employer has good intentions and is trying to protect the woman or has not-so-good intentions. It’s illegal.

LC: Who is most at risk for being discriminated against because of their pregnancy? Or is this something women face across socioeconomic levels and at all levels of employment?

HB: I would say that it affects all women, but that discrimination is probably more rampant in certain professions, such as hospitality and retail, where there is more turnover and replacement workers are easier to find.

In addition to gender, there is a racial component to this, since the higher up you go in the hierarchy, the more likely you are to find that the leaders are white and male and often educated and upper class.

LC: Are hourly workers more at risk for this type of discrimination than someone who is a salaried employee? Are there more or less protections for certain classes of workers?

HB: There are no more or less protections for certain types of workers. The protections are federal and state laws that uniformly prohibit pregnancy discrimination.

However, what is different are the benefits that are available to you if you are pregnant, such as the Family and Medical Leave Act. That is nonexistent for hourly workers, other than what is mandated by law. Those employees are lucky if they are offered health insurance. So, the impact isn’t just about the legal discrimination; it’s about the availability of support within the role.

LC:  Does an employee have an obligation to inform their employer that they are pregnant?

HB: It’s private medical information, so you don’t have to inform your employer until you are ready. At some point, it is probably going to become apparent. Each person should figure out what the best approach is for them.

LC: The standard advice we give employees who are leaving a job is to try to provide your employer with two weeks’ notice. Do pregnant women have an obligation to give their employers a certain amount of notice that they plan to be away from work after having a baby?

HB: You aren’t required to give notice when you quit a job; it’s a courtesy. Generally, if you are pregnant and you want to come back to your job after you give birth, you should talk to your manager. Once you know your due date and what your general plans are, talk to the employer about how you’d like to transition out — and then back into — your job.

There is no obligation. However, it’s appropriate, grown-up business behavior to give your employer enough time to plan appropriately for your absence.

LC: Unlike other medical conditions, pregnancy usually becomes quite obvious at a certain point. What is my employer allowed to ask me if decide to delay talking to them about it?

HB: Employers shouldn’t ask, because if the employee is not talking about it, it could be any number of things. It could be some terrible form of endometriosis or a tumor, for example. Just because someone’s belly is growing does not necessarily mean that they are pregnant, and employers should respect the employee’s privacy.

As an employer, you don’t want to inquire, because the moment you do inquire, if you make any decision based on the fact they are pregnant, it could be considered discriminatory. It’s a pretty strong case for pregnancy discrimination.

Allow the employee to come to you and tell you. There is risk associated with that because employers are very well known for discriminating because they feel inconvenienced or even betrayed, as if the employee’s duty is to them first rather than to living their lives.

So, it depends on the situation. Typically, with bigger employers, it is less of a problem because they have more resources to manage for maternity leave, and they tend to be able to be more flexible with work arrangements because there are more people to get the work done.

LC:  What is an employer’s obligation to an employee if their role becomes too physically demanding during a pregnancy? Are they obligated to find that worker a role that is less strenuous?

HB: Employers shouldn’t change a worker’s role or responsibilities until the employee and the employee’s doctor alert them that the worker can’t perform the necessary tasks because of pregnancy. Once an employer knows the details and what the worker’s restrictions are, if there is a less strenuous position available, it is a good idea to make that possible.

However, it isn’t always possible to accommodate a pregnant worker. In those cases, the woman might need to stop working. Usually, workers are eligible for some sort of disability, but that depends on state laws. There are no hard and fast rules except that an employer can’t discriminate. However, if an employer doesn’t have another job to offer a pregnant employee, they aren’t required to find them one.

In California, for example, pregnancy is recognized as a disability, and you can apply for benefits through the Employment Development Department. Some workers might be eligible for disability benefits through their employer as well.

LC: Where can women find resources if they fear they are victims of pregnancy discrimination?

HB: They should call their state discrimination agencies. For example, in California, it is called the Department of Fair Employment and Housing.

You can also start with the EEOC at the federal level, since most states work in coordination with the EEOC. You can file a claim with either the EEOC or a state agency, and they will investigate.

If you want to file a lawsuit, it is your right to sue, but I recommend starting with the EEOC to research what your rights are and what benefits you might be able to take advantage of. If you still have questions, speak to an employment attorney.

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