Discrimination for Pregnancy and Post-Pregnancy | Aiman-Smith & Marcy
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Discrimination for Pregnancy and Post-Pregnancy

People with virtually every kind of encumberment are likely to find themselves as a victim of some kind of discrimination. What does human rights law say about pregnancy? The Pregnancy Discrimination Act (PDA) is an amendment to the Civil Rights Act of 1963 (Title VII of the Civil Rights Act). Women who are pregnant have to be treated the same as other applicants or employees, considering only their ability to effectively carry out their responsibilities. The same is true of post-pregnancy employment.

Firing or not hiring women because of pregnancy.

Prior to 1978, before the amendment was passed, it was common practice to fire women as soon as they became pregnant. Many women with promising careers saw their professional growth stymied because their employment was capped when they wanted to begin a family. Even though civil rights law now forbids this practice of discrimination, many companies continue to terminate women who become pregnant or have rules restricting their employment after pregnancy. In one year, more than 5,000 complaints of pregnancy discrimination were acted on by government agencies. In 2013, the Equal Employment Opportunities Commission had to issue special new guidance to employers to remind them of the PDA laws.

The biggest complaint reported by the commission was that employers continue to fire women who become pregnant. Sometimes employers couch their violations behind good intentions. Employers might explain that they are worried about safety, for instance. However, no matter how it is justified, discrimination against pregnancy in employment is illegal. It constitutes a civil violation that could result in a legal suit. Even if working conditions are difficult or physically demanding, an employer cannot fire a woman because she is pregnant.

Before 1978, companies would refuse to hire a woman because she could eventually become pregnant. This was a large part of the general issue of discrimination against women in the workplace and part of the workplace gender disparities that still exist.  Refusal to hire women who are pregnant or express their intention to become pregnant is still very common. The problem exists even in companies that rely on pregnant women as their customer base. The discrimination sometimes shows up in situations where a company will refuse to hire women in their childbearing years, younger women, or women newly married.

Forced Job Adjustments.

Employers cannot force a pregnant woman to change jobs or take time off if they are still able to perform their duties. Sometimes employers will re-assign pregnant women or new parents to less strenuous or less responsible jobs with the intention of protecting them. If the employee can perform her original duties and this reassignment is done without her consent, it violates the civil rights act. Employers are not permitted to base employment decisions on assumptions they make about women’s capabilities and health.

Pregnancy is not a disability.

The civil rights prohibition against discrimination for pregnancy is not the same as the civil rights prohibition against discrimination against disability. In the civil rights law, pregnancy is not considered a disability. A normal pregnancy does not entitle a woman to any special treatment. A note from a medical professional would be required to inform the workplace of a woman’s temporary pregnancy-related impairment. Common medical complications of pregnancy include severe morning sickness, elevated blood pressure, back pain, or temporary diabetes.

Women who have medical complications or temporary impairments during their pregnancy have to be treated the same as any other worker who has temporary medical impairments. Temporary light-duty assignments during the period when they impaired can be a “reasonable accommodation.” Temporary accommodation may simply mean that the pregnant woman be permitted to sit on a stool during her shift, instead of having to stand.

Post pregnancy provision.

Provisions in the Affordable Care Act now require that employers provide support for lactating mothers in the workplace. Larger employers (50 or more employees) are required to provide “reasonable breaks” to lactating mothers to pump breast milk for up to a year after childbirth. Employers are required to provide a safe and private place other than a bathroom for them to do so. A company cannot discriminate against a woman because she is lactating.

If you’d like greater guidance on how to legally defend yourself from workplace harassment during your pregnancy or post-pregnancy, contact us today.