Pregnancy
Discrimination Claims Should Not Be Overlooked
Companies
tend to focus on the more prevalent topic of sexual harassment, and often
overlook the issue of pregnancy discrimination in the workplace. Yet,
according to the United States Census Bureau, 80 percent of women bear
children at some point in their lives. There are more women staying in the
workplace for the duration of their pregnancy. In the 1970's more than half
of the women in the workforce quit their jobs when they became pregnant. By
the 1990's, that number was down to 27%.
Moreover,
according to the Equal Employment Opportunity Commission (EEOC), pregnancy
discrimination complaints have risen nearly forty percent over the past
decade. Pregnancy discrimination is one of the fastest growing types of
employment discrimination claims, outpacing the rise in sexual harassment
claims.
For
the year 2004, the EEOC received and recovered $11.3 million in monetary
benefits for charging parties and other aggrieved individuals (not
including monetary benefits obtained through litigation). In 1992, the
amount collected was only a little over $3 million.
Many
large employers have been hit with pregnancy discrimination claims. Verizon
settled a major class action lawsuit brought by employees who claimed they
were denied service credit in their retirement program for leaves taken
relating to pregnancy and maternity. Wal-Mart settled a pregnancy
discrimination suit brought by a woman who claimed the company refused to
rehire her because she was pregnant. In addition to the obvious risk of
liability, pregnancy discrimination can lead to a desire for the woman to
not return to work or can be a setback to career advancement.
Law Requires Same Treatment
Both
federal and state law require that pregnant women
be treated in the same manner as other applicants or employees with similar
abilities or limitations.
Discrimination
on the basis of pregnancy, childbirth or related medical condition is
prohibited by federal and state law under the federal Pregnancy
Discrimination Act of 1978 (PDA) and the state Fair Employment and Housing
Act (FEHA). Pregnancy discrimination is considered a form of unlawful sex
discrimination.
Harassment
on the basis of pregnancy is further prohibited, as is retaliation for
complaining of pregnancy discrimination. An employer also cannot
discriminate against, harass, or retaliate against an employee because she
has exercised her right to take a pregnancy disability leave.
For
instance, terminating or refusing to promote an employee because of
pregnancy is unlawful.
An
employer cannot refuse to hire a woman because of her pregnancy related
condition as long as she is able to perform the major functions of her job.
An employer cannot refuse to hire her because of client or customer
prejudices or preferences.
An
employer also cannot refuse to provide reasonable accommodations to an
employee because of her pregnancy. Moreover, an employer cannot refuse to
transfer an employee affected by pregnancy. If the employee requests a
transfer and it is recommended by her physician, the work assignment may be
changed if it can be reasonably accommodated.
Benefits Should Also Be the Same
If
the employer provides health insurance, it must cover expenses for
pregnancy-related conditions on the same basis as costs for other medical
conditions. Health insurance for expenses arising from abortion is not
required, except where the life of the mother is endangered.
The
amounts payable by the insurance provider can be limited only to the same
extent as amounts payable for other conditions. No additional, increased,
or larger deductible can be imposed.
In
addition, employers must provide the same level of health benefits for
spouses of male employees as they do for spouses of female employees.
Importantly,
pregnancy-related benefits cannot be limited to married employees. In an
all-female workforce or job classification, benefits must be provided for
pregnancy-related conditions if benefits are provided for other medical
conditions.
If
an employer provides any benefits to workers on leave, the employer must
provide the same benefits for those on leave for pregnancy-related
conditions. For instance, if an employer provides 30 days leave with pay to
other employees with temporary disabilities, it must provide that same
benefit to pregnant employees.
In
addition, employees with pregnancy-related disabilities must be treated the
same as other temporarily disabled employees for accrual and crediting of
seniority, vacation calculation, pay increases, and temporary disability
benefits.
Tips for Employers
- Prohibit pregnancy
discrimination in your employee handbook. Train all managers and
supervisors on the laws relating to pregnancy discrimination.
- Ensure that all
benefit plans provide equal treatment to pregnant employees as
compared to other employees with temporary disabilities.
- Avoid overly
personal inquiries of the pregnant employee. For instance, comments
about the difficulties in finding good childcare or the cost of
childcare may be misinterpreted to mean that the employee should just
stay home after having the baby.
- Closely review any
adverse decisions taken against a pregnant employee. Get a second
opinion before taking action, preferably from labor and employment
counsel.
- Inform the
pregnant employee of her leave rights.
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