Pregnancy should be a time of joy and anticipation, not a period filled with fear and anxiety over job security. At McOmber McOmber & Luber, we know that understanding your rights and the steps to combat pregnancy discrimination is vital for ensuring a fair and safe work environment.
Despite the many laws in place, pregnant women still routinely encounter discrimination at work. This comprehensive guide aims to shed light on what constitutes pregnancy discrimination, the existing legal protections, and the steps to take when faced with such unjust treatment.
Table of Contents
- What is Pregnancy Discrimination?
- How Common is Pregnancy Discrimination?
- What Are The Occupations Where Pregnancy Discrimination is Most Common?
- What Are Examples of Pregnancy Discrimination?
- What Laws Protect Against Pregnancy Discrimination?
- What Rights Does a Pregnant Woman Have at Work?
- What is a Reasonable Accommodation?
- What Are Examples of Reasonable Accommodations?
- Can My Employer Terminate Me While I am Out on Maternity Leave?
- Steps to Take When Facing Pregnancy Discrimination
- How Can I Sue for Pregnancy Discrimination?
- Can an Employer Ask About My Pregnancy in a Job Interview?
- How Does Pregnancy Discrimination Intersect with Other Forms of Discrimination?
- Can I Be Forced to Take Leave or Change Positions Due to My Pregnancy?
- Are Small Businesses Held to the Same Standards for Pregnancy Discrimination as Larger Corporations?
- Can I Face Pregnancy Discrimination Even When Working Remotely?
- How Can I Support Colleagues Facing Pregnancy Discrimination in the Workplace?
- Are There Unique Protections Against Pregnancy Discrimination for Freelancers?
- What Training and Awareness Programs Can Reduce Pregnancy Discrimination?
- Are There Specific Protections for Women with High-Risk Pregnancies?
- What Should I Know About Pregnancy Discrimination and Part-Time or Temporary Positions?
- How Does Health Insurance Coverage Play a Role in Pregnancy Discrimination?
- Can I Be Denied Training or Promotion Opportunities Due to My Pregnancy?
1 - What is Pregnancy Discrimination?
Pregnancy discrimination refers to unfavorable treatment of women in the workplace due to pregnancy, childbirth, or related medical conditions. Pregnancy discrimination in the workplace can include a wide range of behaviors or mistreatment, including:
- Treating pregnant employees differently
- Paying pregnant employees less
- Failing to promote pregnant employees.
- Refusing to hire a pregnant woman or women likely to become pregnant.
- Subjecting pregnant employees to increased scrutiny, criticism and harassment, or otherwise making the workplace uncomfortable.
- Verbal or physical abuse of pregnant employees
- Refusing pregnancy leave or time off.
- Changing positions or responsibilities or demoting a pregnant employee based on the assumption that they cannot handle her usual tasks.
- Terminating or laying off a pregnant employee, or an employee who has recently had a child.
- Forcing a pregnant employee to resign
There are laws in place at both the state and federal levels to protect the rights of pregnant employees. If you have been denied reasonable accommodations during your pregnancy, or if you have experienced pregnancy discrimination in the workplace, we can help.
2 - How Common is Pregnancy Discrimination?
Despite the state and federal legal protections afforded to pregnant employees, pregnancy discrimination is unfortunately still a widely prevalent issue in the United States. Between 2010 and 2015, nearly 31,000 charges were filed with the EEOC (Equal Employment Opportunity Commission). The most common reason cited for these charges, making up nearly one third of all charges, was termination due to pregnancy. In 2019, $22.4 million was paid out in pregnancy discrimination charges filed with the EEOC.
3 - What Are The Occupations Where Pregnancy Discrimination is Most Common?
The workplaces and jobs where pregnancy discrimination tends to be most common include:
- Doctors’ Offices
- Housekeeping And Janitorial Workers
- Administrative Assistants
- Dental Offices
- Bars and Restaurants
Remember, pregnancy discrimination is illegal, regardless of the industry or role. If you believe you are facing pregnancy discrimination, it is crucial that you explore your rights and possible legal remedies.
4 - What Are Examples of Pregnancy Discrimination?
Some primary examples of pregnancy discrimination include, but are not limited to:
Failure to Hire if Pregnant or Planning to Become Pregnant
It is illegal for an employer to deny employment to a qualified candidate if she is pregnant or planning to become pregnant. Furthermore, it is illegal even to pursue this line of questioning with a candidate, as it goes against anti-discrimination laws.
Fired Because Pregnant
It is illegal for an employer to fire an employee because they are pregnant. It is also unlawful for an employer to fire you because they are worried the baby might cause productivity issues.
Refusal to Provide Reasonable Accommodations
Reasonable accommodations are dictated by law, and if an employer actively fails to engage in the interactive process with an employee regarding the accommodations they are seeking, it could be considered pregnancy discrimination.
You Are Being Harassed Due to Pregnancy (or For Your Plans to Become Pregnant)
If an employer (or fellow employees) verbally or physically harasses you due to your pregnancy, plans to become pregnant, or even the birth of a child, they may be subject to liability.
No Area to Pump Breast Milk
Similar to the inability to provide reasonable accommodation, it may be considered pregnancy discrimination if an employer does not provide a private and safe area for a breastfeeding woman to provide breast milk for their nursing child.
Discrimination Upon Returning to Work
It is also illegal for an employer to discriminate against an employee by not returning them to their position or a similarly situated position when returning to work after giving birth to her child or taking maternity leave. A specific example of this would be demoting the employee when she returns to work.
5 - What Laws Protect Against Pregnancy Discrimination?
Several laws protect individuals from pregnancy discrimination in the United States:
- Pregnancy Discrimination Act (PDA): This federal law prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions. Employers must treat pregnant employees the same as non-pregnant employees who are similar in their ability or inability to work.
- Family and Medical Leave Act (FMLA): This act requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave for certain family and medical reasons, including the birth of a child and to care for a newborn child within one year of birth.
- Americans with Disabilities Act (ADA): While pregnancy itself is not considered a disability, certain pregnancy-related conditions may qualify as disabilities under the ADA. This means employers may be required to provide reasonable accommodations to pregnant employees who are temporarily unable to perform their jobs due to pregnancy-related conditions.
- New Jersey Law Against Discrimination (NJLAD): If you are in New Jersey, the law specifically prohibits discrimination on the basis of pregnancy and requires employers to provide reasonable accommodations to pregnant employees who request them on the advice of a physician.
- New Jersey Family Leave Act (NJFLA): This New Jersey state law requires large employers to provide job-protected leave for the birth or adoption of a child, or the serious illness of a child, parent, or spouse.
These are just some of the key laws that protect against pregnancy discrimination. The protections can vary depending on the specific circumstances and the state in which you work. Always consult with a legal professional to fully understand your rights.
6 - What Rights Does a Pregnant Woman Have at Work?
Under the NJLAD and PDA, employers must prevent pregnancy discrimination and provide reasonable accommodations to pregnant employees, treating them no differently from other workers. Any accommodation linked with punishment is considered an unlawful employment practice.
A pregnant woman has the right to continue working as long as she can perform her job duties. If she is temporarily unable to work due to pregnancy, employers must treat her the same way as other temporarily disabled employees, granting disability leave or leave without pay and ensuring her job is kept open for the same duration.
Moreover, the FMLA provides that employees who have worked for at least 12 months for an eligible employer can take up to 12 weeks of paid or unpaid leave to care for a new child, including foster and adopted children.
7 - What is a Reasonable Accommodation?
A “reasonable accommodation” is a modification or adjustment to a job, work environment, or work practice that makes it easier for a pregnant worker to continue performing the essential functions of her job while remaining comfortable. This could include things like changing schedules, providing extra seating, offering additional breaks, modifying job duties or allowing work from home, and more. These accommodations are designed to address the physical changes and medical needs that can arise during pregnancy while ensuring the employee can still carry out her role effectively.
Additionally, it is illegal for an employer to penalize an employee for requesting (or using) reasonable accommodations.
8 - What Are Examples of Reasonable Accommodations?
There are many types of reasonable accommodations for pregnant employees, some of which include:
- Improving workplace accessibility
- Providing additional equipment or products
- Granting additional privacy when needed
- Allowing for a flexible work schedule
- Providing direct help when requested
- Modifying a job’s tasks
- Allowing for extra or additional breaks
- Granting access to preferred parking
- Providing specialized aid or services
- Permitting service animals
- Granting temporary change of position
Remember: each person has their own individual needs; if you are in need of accommodations, you should request whatever you or your situation needs.
9 - Can My Employer Terminate Me While I am Out on Maternity Leave?
No, under the New Jersey Family Leave Act (NJFLA), large employers (with 30 or more employees) cannot terminate you while you are on maternity leave. The NJFLA provides job-protected leave for up to 12 weeks in any 24-month period, provided that you have worked with the employer for at least a year. The purpose of the leave can be bonding with a newborn or caring for a seriously ill family member. Prior notice of at least 30 days is required for maternity leave.
Upon your return, your employer is obligated to reinstate you to your prior position. It is also unlawful for your employer to retaliate against you for taking such leave. Hence, termination during maternity leave would violate these protections provided by the NJFLA.
10 - Steps to Take When Facing Pregnancy Discrimination
If you believe you are experiencing pregnancy discrimination, consider taking the following steps:
- Document Incidents: Keep a record of discriminatory incidents, including dates, locations, people involved, and any witnesses. Save emails, memos, or other written proof of discriminatory behavior.
- Report to Human Resources: File a formal complaint with your company’s HR department and follow your company’s procedure for reporting discrimination.
- Consult a Lawyer: If your employer does not resolve the issue, or if you experience retaliation, consult an employment lawyer. They can guide you on whether to file a complaint with the EEOC or your state’s equivalent agency.
11 - How Can I Sue for Pregnancy Discrimination?
If you believe your employer has discriminated against you should contact a pregnancy discrimination lawyer at McOmber McOmber & Luber first to discuss your rights and options.
12 - Can an Employer Ask About My Pregnancy in a Job Interview?
No, employers cannot legally inquire about your pregnancy status during an interview as per the Pregnancy Discrimination Act. Doing so could be a form of discrimination, and such instances should be reported.
13 - How Does Pregnancy Discrimination Intersect with Other Forms of Discrimination?
Pregnancy discrimination can intersect with other forms of discrimination, creating a complex and multi-dimensional issue. Some examples of this can include:
- Gender Discrimination: Pregnancy discrimination is fundamentally rooted in gender discrimination, as it primarily affects women.
- Racial and Ethnic Discrimination: Pregnant women of certain racial or ethnic backgrounds might face compounded discrimination based on pre-existing stereotypes and biases.
- Disability Discrimination: Pregnancy can sometimes involve medical complications that may require accommodations similar to those given to individuals with disabilities.
- Age Discrimination: Younger or older pregnant employees might experience age-related prejudices in addition to pregnancy discrimination.
Raising awareness about these overlapping forms of discrimination is vital in fostering a workplace that is inclusive and respectful to all.
14 - Can I Be Forced to Take Leave or Change Positions Due to My Pregnancy?
Employers can’t force you to take leave or change positions due to pregnancy if you can fulfill your job’s essential functions. However, based on health or safety concerns, mutually agreeable arrangements can be discussed with your employer.
15 - Are Small Businesses Held to the Same Standards for Pregnancy Discrimination as Larger Corporations?
In New Jersey, the standards for addressing pregnancy discrimination are quite comprehensive and apply to small businesses as well as larger corporations, though the specifics can vary based on the size of the company. Here are the critical aspects you should know:
Federal Laws
Under federal laws such as the Pregnancy Discrimination Act, businesses with 15 or more employees are mandated to adhere to pregnancy discrimination standards.
State Laws
Many states have laws that might apply to smaller businesses, setting standards for preventing pregnancy discrimination. One such example is the NJLAD, which applies to all employers in New Jersey, regardless of the size of their business, which means even small businesses are held to a stringent standard when it comes to preventing pregnancy discrimination.
16 - Can I Face Pregnancy Discrimination Even When Working Remotely?
Yes, pregnancy discrimination can certainly occur while working remotely. Remote working does not shield one from the prejudices and biases that exist in a traditional office setting. You might encounter discrimination in various forms, such as:
- Unfair Task Assignments: Being given less important tasks or being overlooked for opportunities that you are qualified for.
- Promotion Bias: Being bypassed for promotions or career advancement opportunities due to your pregnancy.
- Inappropriate Comments: Receiving inappropriate or insensitive comments from colleagues or superiors regarding your pregnancy.
- Exclusion from Meetings or Projects: Being left out of important meetings or projects based on presumptions related to your pregnancy.
It is vital to document any form of discrimination meticulously and report it to the appropriate channels within your organization to safeguard your rights.
17 - How Can I Support Colleagues Facing Pregnancy Discrimination in the Workplace?
Supporting colleagues can involve being an active ally by listening to their experiences, offering to be a witness if they choose to report the discrimination, and encouraging an inclusive workplace environment. Familiarizing yourself with the New Jersey Law Against Discrimination can also provide insights into the rights of pregnant workers in the state.
18 - Are There Unique Protections Against Pregnancy Discrimination for Freelancers?
In New Jersey, the NJLAD protects traditional employees, independent contractors, and freelancers from discrimination, including pregnancy discrimination. However, the relationship’s specifics and the work arrangement’s nature can influence how these protections are applied.
19 - What Training and Awareness Programs Can Reduce Pregnancy Discrimination?
Training that educates employees and employers on the rights of pregnant workers, as well as programs that promote empathy and understanding about the challenges pregnant employees might face, can be effective. This can be combined with awareness campaigns showcasing positive stories of employees during and post-pregnancy.
20 - Are There Specific Protections for Women with High-Risk Pregnancies?
Under the NJLAD, employers are required to provide reasonable accommodations for pregnant employees if requested, with advice from a physician. This can include women with high-risk pregnancies. Such accommodations might include more frequent breaks, modified work schedules, or temporary reassignments.
21 - What Should I Know About Pregnancy Discrimination and Part-Time or Temporary Positions?
In New Jersey, part-time and temporary workers are also protected from pregnancy discrimination under the NJLAD. Discrimination based on pregnancy is unlawful regardless of the permanency or hours of the position.
22 - How Does Health Insurance Coverage Play a Role in Pregnancy Discrimination?
Denying or limiting health insurance coverage for pregnancy-related conditions when other medical conditions are covered can be a form of discrimination. In New Jersey, if an employer provides health insurance, it must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions.
23 - Can I Be Denied Training or Promotion Opportunities Due to My Pregnancy?
No, in New Jersey, under the NJLAD, it is illegal for employers to deny training or promotion opportunities based on an employee’s pregnancy status. Discriminatory actions based on pregnancy, childbirth, or related medical conditions are prohibited.
An Experienced NJ Pregnancy Discrimination Attorney Can Help You
Pregnancy discrimination is serious, and our discrimination attorneys are ready to take action.
With offices in Red Bank, NJ, Marlton, NJ, and Newark, NJ, McOmber McOmber & Luber, P.C. has experience in representing employees who have been subjected to harassment and retaliation on the basis of pregnancy. If you believe you have been the target of discrimination because of your pregnancy or related medical conditions, contact our lawyers who can help you get the compensation you deserve.
Contact us today for a free consultation.