When employees become pregnant, everyone wants to be understanding and protective, but it’s easy for “protective” and “caring” to turn into “discrimination” in court.
The general rule is, a woman affected by pregnancy must be treated the same as other applicants and employees on the basis of their ability or inability to work. 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.
Let’s look specifically at how the American with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), and the Family and Medical Leave Act (FMLA) deal with pregnancy.
Pregnancy and the ADA
An Interpretive Guidance issued by the Equal Employment Opportunity Commission (EEOC) on the ADA states that pregnancy, in and of itself, is not an impairment covered by the ADA. According to EEOC, disability from a normal childbirth is “temporary” and not protected by the ADA. However, pregnant employees who suffer from severe pregnancy- or birth-related complications may be covered by the ADA if their medical complications substantially limit a major life activity.
Pregnancy and the PDA
Under the PDA, an amendment to Title VII of the Civil Rights Act of 1964, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination.
The PDA states that women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
Under Title VII’s pregnancy-related protections, employers are prohibited from discriminating as follows:
Hiring
An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.
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Approving/Requiring Leave
An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work.
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows other temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer must also allow an employee who is temporarily disabled due to pregnancy to do the same.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth.
Note: Some state laws go further and require that special leaves, or leaves for a specific period of time, and reinstatement be offered to pregnant employees, even if these leaves are not offered to other temporarily disabled employees.
Return to Work
An employer may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
Employers must hold a job for a pregnancy-related absence open the same length of time jobs are held open for employees on sick or disability leave.
Health Insurance
Any health insurance provided by an employer 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.
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Fringe Benefits
Pregnancy-related benefits cannot be limited to married employees.
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.
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.
Retaliation Prohibited
Finally, it is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
In tomorrow’s Advisor, we’ll take a look at pregnancy and the FMLA, the tricky issue of fetal protection, and get an introduction to a unique management program just for those in small, even one-person HR departments.
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