fertility statueIt can be the elephant in the room for employers: women in their child-bearing years have a high probability of becoming pregnant at some point and needing accommodations and leave. But woe becomes the employer who avoids hiring or promoting women who are at risk of baby-making.

Federal law, for starters, prohibits discrimination against pregnant women. The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. The Act states that it is unlawful sex discrimination under Title VII to discriminate based on pregnancy, childbirth, or related medical conditions. Female employees affected by pregnancy, or pregnancy-related conditions, must be treated in the same manner as other applicants or employees with similar abilities or limitations.

The Pregnancy Discrimination Act applies to employers with fifteen or more employees, including state and local governments. But many states apply that to employers with few employees: California prohibits pregnancy discrimination for employers with more than five employees and Missouri prohibits discrimination for employers with more than six employees.

A few examples of pregnancy discrimination in employment include:

  • Refusing to hire or terminating a female employee because she is pregnant, or is considering becoming pregnant.
  • Terminating a female employee because she has taken pregnancy leave.
  • Denying a qualified female employee a promotion, or demoting her, because she is pregnant, or is considering becoming pregnant.
  • Treating pregnancy in a manner differently, including rights and benefits, than any other temporary illnesses or medical conditions.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII or their state law counterparts.

Female employees are also protected against pregnancy discrimination in the work place by the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA). These laws apply to employers with at least 50 employees within a 75-mile radius of the worksite. The employee must have worked for that employer for at least twelve months (not necessarily consecutive) and must have worked for at least 1,250 hours in the previous twelve months.

Under the family leave laws, female and male employees are allowed to take up to twelve weeks of unpaid leave from employment in order to care for a newborn baby, adopt a child, or foster a child. When the female employee returns to work, she has the right to the same or an equivalent level job, with similar pay, benefits, and terms and conditions of employment.

In addition to Civil Rights Acts, Human Rights Acts and Leave Laws, the Americans With Disabilities Act (ADA) comes into play as well. Women disabled by pregnancy, childbirth or related medical conditions are eligible to receive accommodations from their employer. If you are faced with an employee who needs accommodations for a pregnancy-related disability, you must engage in the interactive process with that employee and make your best efforts to work with them and their health care provider to find a reasonable accommodation for their situation. You should properly document this process as you go.

Many states also require employers to accommodate nursing needs after the mother returns to work. For example, in California, lactation rooms are mandatory for all employers. Lactation rooms do not have to be uniquely designated, but they cannot just be the toilet stall and they need to provide for both the dignity and privacy of the mother. Failure to provide lactation accommodations carries penalties, rights to sue, and even state fines.

Despite all of these laws, discrimination of pregnant women (both real and imaged) remains a big problem. In recent years, the number of pregnancy discrimination cases have increased. Women are having children later in their careers, meaning that they are often well-established in the workplace when the charges of discrimination begin. Employers must be vigilant in the way in which they deal with their female employees in order to avoid or minimize the likelihood of becoming embroiled in a pregnancy discrimination claim. Here are some tips:

  • Document all personnel actions in writing.
  • Know the law and train your supervisors and HR personnel on how to properly apply them.
  • Develop and implement gender-neutral personnel policies.
  • Confirm that comprehensive benefits packages provide coverage for pregnancy-related issues.
  • Consider acquiring Employment Practices Liability Insurance (although this can be cost prohibitive for small employers).
  • Consult employment counsel whenever situations arise to avoid them becoming lawsuits.

The best policy is to treat women of child-bearing years as valuable employees, to understand that they may have medical challenges that must be accommodated, and to craft positions and an employment environment that is mother-friendly. This will save your business money in the long run. Good counsel can help your business law make decisions that are economical and compliant for risk mitigation.


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