Pregnant Discrimination: Are you being treated fairly?

As you receive the news that you are expecting a baby, the feeling of joy is overwhelming. Thoughts of all the new and upcoming events create a sense of excitement never felt before. However, as your thoughts continue, you begin to worry about your career and how this pregnancy will affect your position as an employee.

It is vital to get informed and know your rights as a pregnant employee. Here’s a section of my book “The Employee Rights Handbook” that deals with just that.

Pregnancy Discrimination

Thousands of pregnancy-related discrimination lawsuits are filed each year; the kind of mistreatment varies. Experts suggest that staff cuts and management overhauls have given companies opportunities to save money by unloading workers whose personal circumstances, they think, may require special attention. Some pregnant workers who return to work do not suffer outright terminations, but come back to positions with fewer responsibilities and get pushed off the fast track.

In one case, a female lawyer sued her former employer. She claimed that the law firm refused to give her work after she returned from maternity leave. Shortly after her return to work, she was told that she was required to leave the Tokyo office where she was stationed. She refused and was eventually fired. Her employer argued that the decision was purely one of economics, since it could not afford to keep the Tokyo office open. Jury members, however, appeared skeptical of that line of defense and seemed incensed by the law firm’s lack of effort in finding another office to which she could transfer. The jury also heard testimony from fellow employees who overheard a managing partner say that women who have children do not return to work with the same commitment to their jobs. The case was settled out of court just before the jury gave its verdict.

The following general rules illustrate some aspects of what employers may and may not do in this area:

  • Employees who are on maternity leave (defined as the childcare period commencing after disability from the pregnancy and birth has ended) are entitled to accrue seniority, automatic pay increases, and vacation time on the same basis as other employees on medical leave.
  • Employers may not require pregnant workers to exhaust vacation benefits unless all temporarily disabled workers are required to do the same.
  • Employers may require a physical examination and doctor’s certification of ability to return to work only if such is required of all temporarily disabled workers.
  • Employers are prohibited from discriminating in hiring, promotion, and firing decisions on the basis of pregnancy or because of an abortion.
  • Employers are barred from forcing pregnant workers to take mandatory maternity leaves (i.e., forcing a woman to leave work against her wishes in anticipation of giving birth) as long as the employee is able to do her job.
  • The decision as to whether payment for pregnancy disability leave will be given must be in accord with policies governing other forms of disability leave; if paid leave is provided for workers with other disabilities, the employer must provide pregnant workers with paid leave for their actual disability due to pregnancy and related childbirth.
  • Time restrictions based on pregnancy-related leaves (e.g., that pregnancy leaves not exceed four months) must be reasonable and job-related; if not, they may be illegal. In addition, employers are generally required to provide disability benefits for as long as a pregnant woman is unable to work for medical reasons.
  • An employer cannot refuse to hire a pregnant worker because it does not want to find a replacement when the employee takes a leave to give birth if her skills and qualifications meet or exceed those of other applicants.
  • Employers cannot limit pregnancy disability benefits to married employees.


Strategies to Strengthen a Claim

1. Understand your options to take paid short-term and long-term disability leaves and unpaid leaves.

2. Be aware of how the company treated pregnant workers in the past for comparison purposes.

3. Remember that the payment of costs for pregnancy-related conditions may be limited to a specific dollar amount stipulated in an insurance policy, collective bargaining agreement, or other statement of employee benefits, provided limits are imposed for other health conditions.

4. Always read and understand your employer’s health insurance policies and coverage before incurring medical treatment.

5. If you are offered a choice between enrolling in one of two health insurance plans, be sure to choose the one that covers pregnancy related conditions so that you will be reimbursed on the same basis as for other medical conditions.

6. Employers are not generally responsible for providing health insurance covering abortions. However, they are required to offer sick leave and other fringe benefits as a result of abortion. Additionally, while some health plans do not pay for abortions, they do cover complications resulting from the procedure, such as treatment due to excessive bleeding. Always read the fine print of your policy to determine your options.

Know your rights regarding pregnancy and when you want to return to work after giving birth. Time and time again, women are fired after returning from maternity leave. Typically, companies will cite a poor attitude, tough economic times, or declining work quality to support their decision. You should point to excellent work reviews and argue that the employer has invented or magnified the criticisms (and possibly prepared phony documentation for your personnel file) from the moment you announced your pregnancy. Women who are fired while pregnant should naturally suspect that pregnancy was the reason for the discharge.

The topic of Employment law is a complex one and should be handled by an experienced professional. Should you have any questions on Employment law regarding your pregnancy or the pregnancy of a loved one, contact The Employee’s Lawyer Steven Mitchell Sack.

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