As an employee who is pregnant or hoping to get pregnant, one of the first things you may worry about is your job security. Whether you have a good workplace environment or not, it is important that you understand your workplace rights as they pertain to pregnancies. One of the most common questions pregnant people face is whether they can get fired for being pregnant.
You cannot get fired for being pregnant as the Pregnancy Discrimination Act of 1978 makes it illegal for an employer to fire a worker on the basis of sex, pregnancy, childbirth, or any related conditions. Your employer cannot fire you for being pregnant or sick from conditions related to pregnancy.
This article will discuss the meaning of pregnancy discrimination, the limits of the Pregnancy Discrimination Act, and whether a pregnant employee can be fired for reasons unrelated to their pregnancy. Keep reading to also find out when you should tell HR about your pregnancy and how you can prove that you have been discriminated against on the basis of pregnancy.
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What Is Pregnancy Discrimination?
Pregnancy discrimination involves treating an applicant or employee unfavorably based on a pregnancy or a condition related to pregnancy. This includes workplace activities like hiring, firing, promotions, assignments, pay, fringe benefits, and other terms and conditions of the employment.
Federal, state, and local laws mandate that pregnant employees should not be treated differently from other employees because of their pregnancy. This means that an employer cannot prevent a pregnant employee from doing their job as long as the employee is physically fit to continue performing their duties.
Laws also prohibit employers from making decisions about an employee’s work based on an assumption of a pregnancy-related health concern. This applies even if their work involves potentially harmful activities like heavy lifting or working with toxic chemicals.
Subtle behaviors or microaggressions are also considered acts of harassment or discrimination. Some examples are:
- Inappropriate jokes.
- Offensive comments.
- Negative stereotyping.
- Social isolation.
If these behaviors are related to a pregnancy, they can also be classified as pregnancy discrimination.
Perceived prejudice is a common problem that is also considered discrimination. Some examples of perceived prejudice are:
- Being denied promising assignments or opportunities.
- Getting taken off the path to a promotion or partnership.
- Losing the benefit of a due raise or bonus.
The PDA also protects people who choose to terminate their pregnancies. According to the Act, it is unlawful to fire or discriminate against an employee for considering an abortion or choosing to get one.
Despite these laws, workplace discrimination continues to happen on the basis of pregnancies. Approximately 5,300 pregnancy discrimination charges are filed each year. The number has continued to increase steadily, as Bloomberg Law estimates that pregnancy discrimination claims have recently increased by a 67%.
Is Special Treatment for a Pregnant Worker Considered Discrimination?
Any special treatment to a worker with a pregnancy without complications can be considered discrimination as uneventful pregnancies are not considered a disability. The safety of a pregnant employee and their child is primarily the employee and their doctor’s responsibility, not the employer’s.
Pregnancy-related complications are very common, and they include conditions like:
- High blood pressure
- Severe nausea
- Gestational diabetes
- Iron-deficiency anemia
All of the symptoms listed above could limit an employee’s ability to work.
In the case of any medically verified pregnancy-related complication, an employee is entitled to certain benefits at work, according to the Americans with Disabilities Act (ADA). These benefits, called “reasonable accommodations,” mandate that an employee with a pregnancy-related condition should be treated the same way as an employee with any other medical disability “similar in their ability or inability to work” would be treated.
The reasonable accommodations you are entitled to can include:
- Changing your job tasks and work schedule to become flexible and less strenuous.
- Providing sitting arrangements where you would usually stand.
- Getting reserved parking.
- Improving accessibility in the setup of your work area.
Reasonable accommodations are your right for any pregnancy-related condition that a doctor has duly verified. Once verified by a physician, denying you of any of the accommodations above can be a form of discrimination. Your employer can only choose to deny you a reasonable accommodation if they can prove that it will cause “undue hardship” to the company.
You should note that pregnancy discrimination protection is only limited to adverse work situations strictly related to your pregnancy. In other words, the PDA cannot offer you immunity from being fired for reasons unrelated to your pregnancy.
Your Workplace Rights as a Pregnant Employee
As a pregnant employee, you are entitled to different local and federal rights depending on where you live. Some of those protections include:
- The Federal Pregnant Workers Fairness Act, which states that a pregnant employee who is denied reasonable accommodation will be entitled to rights and remedies, including lost pay, reasonable attorney’s fees, and compensatory damages.
- The Family and Medical Leave Act (FMLA) offers benefits to employees who have worked for at least 1,250 hours for 12 months in a company with 50 or more employees within a 75-mile radius. Eligible employees are entitled to 12 weeks of unpaid leave every year for inability to work due to a pregnancy-related health condition or for the birth and care of a newborn child.
- Under federal and state law, your pregnancy leave can be non-contiguous. That means who can choose to take shorter breaks instead of one long break for pregnancy leave.
- State laws like the New York State Human Rights Law prohibit an employer from making maternity leave mandatory unless your pregnancy prevents you from carrying out the essential tasks of your job in a reasonable manner.
- Employers in Massachusetts are required to hold your position open for as long as they would for an employee on disability leave and have a similar position open for you when you return from a pregnancy leave.
Make sure to check your local and state laws to see if there are any additional protections for pregnant employees in your area.
When Should You Tell HR You Are Pregnant?
You’re not legally required to tell the human resources department or your boss about your pregnancy until its late stages, according to the University of California, Hastings College of Law. Under the FMLA, you only need to request pregnancy leave 30 days in advance.
If you need accommodations because of pregnancy-related complications, you’ll have to inform your workplace at least 10 working days ahead so they can make proper arrangements for you. Because you’re not legally required to inform HR, you’re free to choose to do it whenever you’re most comfortable.
How Do You Prove Pregnancy Discrimination in the Workplace?
To prove pregnancy discrimination in the workplace, you will have to show that your pregnancy was a motivating reason for any adverse actions from your employer. You can prove this with direct or circumstantial evidence.
The first step to proving pregnancy discrimination is putting together every piece of evidence that’ll help build your case. The goal of your case is not only to prove that you have been treated differently but that the different treatment you received was discriminatory as it was based on your pregnancy or intention to get pregnant.
You should try to document discussions, correspondence, or any other interactions that can help you to prove this. You could have direct evidence of discrimination—like your employer overtly admitting that your pregnancy played a role in their decision about your work—but that’s unlikely.
Circumstantial evidence of discrimination can be easier to find. Some of the things you should look for are:
- Proof that the timing of your incident was suspicious.
- An unusual change in the practice or policy that would normally apply to a non-pregnant worker in that same situation.
- An unreasonable basis for your termination.
- A precedent showing a trend of the same treatment for only pregnant employees in your company.
Besides federal laws, many states and municipalities have local laws that offer more specific requirements for proving pregnancy discrimination. The provisions of these laws are similar, but they may sometimes overlap. You will have to navigate your local laws along with federal laws to build your case.
If you don’t yet have an attorney on your side, a local advocacy organization or a state women’s law center could help you find a counselor or pro-bono attorney for your case. The work of the counselor or advocate may be free or subsidized, depending on your situation.
An attorney or legal advocate can help you:
- Explain your local laws to you.
- Assess your claims.
- Show you how to advocate for yourself.
- Handle all communications with your employers.
For a low-income earner, a legal aid society could also provide you with temporary financial assistance until your case is resolved.
How To File a Pregnancy Discrimination Lawsuit
Contacting the EEOC
The formal process of filing your charge starts with contacting the Equal Employment Opportunity Commission (EEOC) in your region or a state Fair Employment Practices Agency (FEPA) to submit your complaint.
For all employers, excluding federal government agencies, a valid discrimination complaint has to be filed no more than 180 days after the incident, so it’s best that you contact the EEOC as soon as possible. If a state or local anti-discrimination law also covers your complaint in your region, then the deadline for filing a complaint may be extended to 300 days after the incident.
You don’t necessarily need an attorney to file your complaint, but you could hire one at your own expense if you can afford it. At the EEOC, an official will ask you for detailed information about your complaint to ensure it is covered by the law.
You will also have to complete a questionnaire, and a counselor will offer you legal advice about your complaint before you decide to submit it. If you decide not to submit your complaint after speaking to an EEOC counselor, your workplace will not be contacted at all.
If you do submit your complaint, the first option the Commission offers is third-party mediation between you and your employer. Mediation is usually tried first because it is easy, saves the resources that would be needed for an investigation, and usually results in a voluntary settlement that is satisfactory for both parties.
If your discrimination charge cannot be resolved through mediation, the EEOC will then launch an investigation to determine the events that occurred. The initial investigation isn’t meant to conclude whether illegal discrimination occurred or not, but instead helps the EEOC determine whether your charge has merit based on “reasonable cause to believe that discrimination occurred.”
If the EEOC investigation concludes that there is not reasonable cause to believe that discrimination occurred, you will be issued a Dismissal and Notice of Rights. If this happens, you could choose to pursue the case independently of the EEOC by filing your own lawsuit.
If the investigation does find reasonable cause, a Letter of Determination will be sent to you and your employer with the details of the findings from the investigation. Because of limited resources, the EEOC is required to work with both parties to try to resolve the situation through an informal conciliation process.
Conciliation, like mediation, is a voluntary process where both the employer and employee try to reach a resolution that both parties agree to. By this stage, most pregnancy discrimination complaints have either been dropped or settled. If the case is highly contested and a resolution cannot be reached through conciliation, the EEOC will then determine whether or not to file a lawsuit.
Lawsuit and Litigation Stage
The EEOC will usually consider all of the following when determining whether or not to sue:
- How serious the discrimination is.
- What resources are available for litigation.
- What legal issues are involved in the case.
- The potential impact of the lawsuit on workplace discrimination nationwide.
The process of resolving a pregnancy discrimination claim takes 280 days on average. Note that cases that require litigation tend to take much longer. All complaint resolutions are important, but the cases that reach the litigation stage are especially important because they set legal precedents that will affect how future pregnancy discrimination cases are handled.
About 25% of the pregnancy discrimination lawsuits filed with the EEOC are settled in the worker’s favor. While that may not seem like a very high rate, it’s a much higher percentage than the success rate of other discrimination charges.
Most expecting parents are excited to share their news shortly after the first trimester, when the delicate baby bump is making its first appearance. Before sharing your news, make sure to review your company’s policies and your rights as an employee.
The more informed you are, the more likely you will be able to smoothly navigate a pregnancy at work. Even if you don’t anticipate any hiccups, remember to document any work communications regarding your pregnancy just to be prepared.
- Bloomberg Law: Pregnancy Bias Suits Keep Rising Amid Pandemic
- US Equal Employment Opportunity Commission: The Pregnancy Discrimination Act of 1978
- US Equal Employment Opportunity Commission: Pregnancy Discrimination
- University of Massachusetts Amherst Center for Employment Equity: Pregnancy Discrimination in the Workplace
- US Department of Labor: What to Expect When You’re Expecting (and After the Birth of Your Child)…at Work
- US Department of Labor: Accommodations
- Nolo: Pregnancy Discrimination Lawsuits – What You Have to Prove
- The New York Times: How to Tell Your Boss You’re Pregnant
- Indeed.com: When To Inform Work About Your Pregnancy (With Tips)