Comprehensive Guide to 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.

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.

The workplaces and jobs where pregnancy discrimination tends to be most common include:

• Doctors’ Offices And Healthcare Fields
• 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.

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.

Several laws protect individuals from pregnancy discrimination in the United States:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

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.

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.

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.

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.

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.

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.