Fighting Pregnancy Discrimination in the Workplace in New Jersey

Pregnancy discrimination is one of the most common forms of employment discrimination in New Jersey. Pregnancy discrimination can occur in a variety of ways, including harassment, failure to accommodate medical appointments, pay disparity, refusal to hire, refusal to provide maternity leave, or retaliation for taking leave or becoming pregnant. 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 have been the target of discrimination because of your pregnancy or related medical conditions, your employer may be responsible for compensation due to economic damages and your pain and suffering. A pregnancy discrimination lawyer can get you the compensation you deserve.

What Rights Does a Pregnant Woman Have at Work?

Under the New Jersey Law Against Discrimination (NJLAD) and other federal statutes including the US Pregnancy Discrimination Act (PDA), your employer has a responsibility to prevent pregnancy discrimination and provide pregnant employees with reasonable accommodation. Pregnant women should be treated no differently than any other employee. Indeed, in 2014, New Jersey amended the New Jersey Law Against Discrimination (NJLAD) to make it unequivocal that a pregnancy accommodation that is intertwined with punishment, is not by definition, a reasonable accommodation but is an unlawful employment practice. N.J.S.A. 10:5-12(s).

According to the New Jersey Department of Civil Rights, a pregnant woman has the right to work as long as she is able to perform her job. When she is no longer able to work, employers are required to give them the same considerations for disability leave or leave without pay as they would a temporarily disabled employee, and hold the job open for the same length of time.

Under the Family Medical Leave Act (FMLA), any employee who has worked for at least 12 months for an employer with a certain number of employees may be eligible for 12 weeks of paid or unpaid leave to care for their new child, including foster and adopted children.

Occupations and workplaces where pregnancy discrimination is common include:

• Doctors’ Offices And Healthcare Fields
• Housekeeping And Janitorial Workers
• Administrative Assistants
• Dental Offices
• Bars and Restaurants

What is Considered Pregnancy Discrimination?

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.
• Violation of the Family Medical Leave Act (FMLA), New Jersey Law Against Discrimination (NJLAD) or US Pregnancy Discrimination Act (PDA).
• 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.

Under the New Jersey Law Against Discrimination (NJLAD), “pregnancy” means pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth. It is unlawful for an employer to treat an employee that the employer knows, or should know, is affected by pregnancy in a manner less favorable than the treatment of other persons not affected by pregnancy but similar in their ability or inability to work. In addition, an employer of an employee who is a woman affected by pregnancy must make available to the employee reasonable accommodation in the workplace, such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work, for needs related to the pregnancy when the employee, based on the advice of her physician, requests the accommodation, unless the employer can demonstrate that providing the accommodation would be an undue hardship of the business operations of the employer. The employer must not in any way penalize the employee in terms, conditions or privileges of employment for requesting or using the accommodation.

How Common is Pregnancy Discrimination?

Despite the state and federal legal protections afforded to pregnant employees, pregnancy discrimination is unfortunately still a widely prevalant 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.

How Do You Prove Pregnancy Discrimination?

In order to prove pregnancy discrimination, you must be able to show evidence that you were treated differently to another employee with similar circumstances, and that this treatment happened because of your pregnancy. This can include:

• Direct Evidence such as your employer admitting that you were not hired, passed over for a promotion, terminated, or otherwise treated differently because you were pregnant.
• Circumstantial Evidence showing that your employer acted differently than usual or bypassed standard protocols because you were pregnant, for example:
  • Your boss fires you for an infraction that did not occur, does not make sense, or only resulted in a warning for other employees.
  • You are fired right before planned pregnancy leave, or right after you announce your pregnancy.
  • Hiring someone other than you who has the same qualifications.
  • A history of other employees being treated differently when pregnant.

Pregnancy discrimination can also overlap with several other legal infractions, such as:

• Gender Discrimination
• Whistleblowing & Retaliation for reporting Pregnancy Discrimination
• Discrimination for Breastfeeding/Pumping In The Workplace
• Family or Marital Status Discrimination
• Sexual Harassment

How Can I Sue for Pregnancy Discrimination?

In order to sue your employer for pregnancy discrimination, you must file a charge with the EEOC and receive a right to sue letter. Filing a charge involves providing information about yourself, your employer, and the circumstances surrounding the discrimination. You must file the charge within 180 days of the discriminatory act. Once you receive the right to sue letter, you will have 90 days to file a lawsuit.

If you believe your employer has discriminated against you based on pregnancy and want to file a charge with the EEOC, you should contact a pregnancy discrimination lawyer first to discuss your rights and options.