Pregnancy discrimination is one of the fastest-growing forms of discrimination at the workplace. This issue is more prevalent now than ever as more and more mothers are starting to work – with 32% of all employed women being mothers. In 2019, there were almost 3000 incidents of pregnancy discrimination reported to the Equal Employment Opportunity Commission (EEOC). This figure alone shows how big the problem is, even with the Pregnancy Discrimination Act in place. This short article aims to take you through the Pregnancy Discrimination Act, its importance to your workplace, and its benefits. Watch this short intro video to ease you into the material.
What is the Pregnancy Discrimination Act?
The Pregnancy Discrimination Act (PDA) was created to amend the Civil Rights Act of 1964 so as to add sex discrimination on the basis of pregnancy to the list of prohibited acts in Title VII. The law was passed to negate the decision of the US Supreme Court in General Electric Company v Gilbert (1976) that pregnancy discrimination is not a form of sex discrimination.
Pregnancy discrimination extends to cover discrimination on the basis of pregnancy, childbirth, and other related medical conditions. There is no clear definition of what exactly encompasses ‘related medical conditions, however, it may include issues such as miscarriage, infertility, and abortion.
The Act prohibits employers from discriminating against employees on the basis of pregnancy when:
- Assigning work
- Terminating employment
- Suspending their contract or employment
- Allocating bonuses or other benefits
Additionally, the PDA prevents employers from harassing and retaliating against employees on the basis of pregnancy. Harassment is illegal under US federal law where it is so frequent that it creates a hostile or offensive work culture/environment or where it forms the basis of an adverse employment decision made by the employer. The harasser does not have to be the employer but rather, it can be anyone related to the employer – e.g. the supervisor, another employee, or even a client.
Furthermore, employees who are temporarily unable to perform certain job functions because of pregnancy, childbirth, or other related medical condition must be treated the same as other members of staff who are temporarily disabled. Equal treatment must include equal treatment in pay, job functions, disability or sick leave, and fringe benefits.
Additionally, pregnant employees may qualify as disabled employees (under the Americans with Disabilities Act) if they have any impairments resulting from their pregnancy – for example, gestational diabetes or preeclampsia). In such a case, the employer should allow for sufficient accommodations to allow the employee to perform their job without much hardship.
Basic Requirements of Protection in the Pregnancy Discrimination Act
Pregnant workers are protected from discrimination based on current, past, or future pregnancy.
|Current Pregnancy||Employers cannot take adverse employment action against a woman if their current pregnancy or childbirth was an important factor in their decision to take such an adverse action.|
|Past Pregnancy||An employer cannot discriminate against a female employee based on a past pregnancy, childbirth, or pregnancy-related illness. This means that an employer cannot act adversely to an employee during the length of their maternity leave with the pregnancy being a motivating factor in the decision-making process.|
|Future Pregnancy||An employer cannot act on an employee’s intention or ability to be pregnant or have a child. An employer cannot stop an employee from performing her functions or terminate her employment because she may be pregnant in the future. Additionally, even if the employer means well by the decision (e.g. to keep an expecting mother safe), any job restriction is unlikely to be justified.|
|Medical Conditions Related to or Caused by Pregnancy or Childbirth||Employers cannot discriminate against employees who have medical conditions related to or caused by pregnancy or childbirth. Employees who suffer from such medical conditions must be treated the same as other employees who have a similar inability to carry out job functions but do not a medical condition related to pregnancy or childbirth.|
Pregnant workers’ benefits and bonuses are also protected at the workplace. Employers are required to provide the same benefits to pregnant workers that they would provide to other employees similar in their ability or inability to work. These are some commonly provided benefits:
|Leave||Pregnant employees have the same right to take leave as other employees who are similar in their ability or inability to work. However, an employer cannot make a pregnant employee take leave unilaterally as long as the pregnant employee is able to do their job. Finally, where a pregnant employee takes leave, the employer must let the employee return to work following their recovery or pregnancy. They should be returned to the same position or to one that is substantially similar. In all cases, pregnant workers should be treated the same as employees who take sick or disability leave.
Employees may be able to take further leave owing to their right under the Family and Medical Leave Act to take 12 weeks of unpaid leave to care for a new child.
|Medical Benefits (e.g. insurance)||Where employers offer medical benefits or insurance for employees, it should be wide enough to cover pregnancy, childbirth, and other related medical conditions. The employer must provide the same medical protection to pregnancy as it does for other medical conditions.|
|Light Duty||Employers must treat pregnant women the same as other employees who have the similar ability or inability to work in respect of “light duty, alternative assignments, disability leave, or unpaid leave”.
Where the employer provides light-duty or other provisions to certain employees, it cannot deny the same provisions to a pregnant worker.
Even if pregnant workers are not excluded from company policies, where the provisions make it harder for pregnant workers by imposing significant burdens on them, it will still violate the PDA.
|Break Time for Nursing Mothers||Under the Fair Labor Standards Act, nursing mothers have the right to request breaks during their job in order for them to express breast milk for their child until he/she reaches the age of 1.
Click here for more information on the break time.
The Equal Employment Opportunity Commission
The EEOC is responsible for enforcing all federal laws on workplace harassment and discrimination – this includes discrimination based on pregnancy, childbirth, and other related medical conditions. The EEOC regulates most employers, unions, and agencies with over 15 employees.
The EEOC will fairly investigate all cases of discrimination that are reported to it and arrive at a conclusion. Where it finds that discrimination has occurred, it will endeavor to settle the charge with the employer. If it fails to do so, then it has the ability to file a lawsuit against the employer and litigate the case in court. However, the EEOC will only take very few cases to court and will mostly attempt to settle the matter out of court – through the use of alternative dispute resolution such as conciliation and arbitration.
Resolving A Charge
If your company has a charge filed against it by the EEOC, then you have a few options when trying to resolve it. However, note that before embarking upon any particular route, your company should take independent legal advice and secure legal representation as the best option for the company may not be the one that sounds best.
At times, these forms of alternative dispute resolution (ADR) are mandatory in resolving charges or findings of discrimination. They are low cost alternatives to litigation and can be performed prior to a lawsuit being filed to settle the matter out of court. The advantages of ADR is that it is quick (relative to litigation), efficient, confidential, informal, and enforceable. All the while, the parties have full control of the process meaning that they can choose the mediator, the location, and the structure of the process. Using ADR to resolve the charge can be very cost-effective for your company. Additionally, it allows the company to maintain its brand reputation as the process and the result is confidential.
Any charge filed by the EEOC can be settled at any time – the objective of the EEOC is to fairly investigate and charge claims, not to litigate every case. Settling allows your company to avoid lengthy litigation and stops your company from having to pay for legal costs at court. In addition, it allows the company to escape admitting liability which can be very beneficial if the business depends on its brand reputation.
Litigation is the process of going to a court of law to have a third-party judge the merits of your case. Litigation is at times unpredictable as your position may not be as strong as you think. Additionally, it can require a lot of resources to battle a drawn-out lawsuit. However, its key benefit lies in the fact that it is public, and if your company wins, then it will act as a positive endorsement /advertisement for the company.
Overall, it is much better for employers to follow the main guidelines of the PDA 1978 than to expose the business to risk and charges being filed by the EEOC. The main covenants of the PDA are to remove harassment and discrimination against pregnant women at the workplace. This can be done through sufficient training and information being provided by the employer. In all cases, pregnant workers should be treated substantially similarly to disabled workers who have their ability to work restricted. Additionally, where possible, employers should endeavor to be accommodating to pregnant employees so that they do not face any undue hardship.