Pregnancy and Discrimination: Are Your Practices Compliant?

Most employers know that pregnancy and discrimination do not mix. But unfortunately it still occurs too often, though not always intentionally. According the Bureau of Labor Statistics, nearly half of the U.S. workforce is comprised of women, and out of that group, roughly 80 percent are or will become mothers (according to Susan Seitel of Work Family Connection).

With these substantial numbers, it’s probable that your organization will have a new or expectant mother in the workplace at some point. With the number of lawsuits filed by new moms on the rise over the past decade, it’s crucial for you to know your obligations so you don’t find yourself on the losing side of a discrimination lawsuit.
Maternity and pregnancy bring along a whole suite of issues to contend with, you don’t want discrimination to be one of them. In a BLR webinar titled "New and Expectant Mothers: Granting Time Off, Return to Work Accommodations, and More," Tiffany S. Fordyce outlined how to steer clear of pregnancy discrimination claims.

Pregnancy and Discrimination: Know the Law

"It’s important to not only look at pregnancy issues from a big-picture perspective, but to also coordinate your policies with all the different members of your team who deal with personnel issues." Fordyce explained. This is because pregnancy-related issues can be very complex and can involve a multitude of laws, such as the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and the Pregnancy Discrimination Act (PDA), just to name a few. There are also laws at the state level to be aware of. In this article, we’ll take a closer look at the PDA and ADA and their applicability.

Pregnancy and Discrimination: PDA

In 1978, Congress amended Title VII (the federal anti-discrimination and anti-harassment laws) by enacting the Pregnancy Discrimination Act, making it unlawful to discriminate on the basis of pregnancy, childbirth or related medical conditions.

"This was an amendment that added pregnancy as a protected class; this was clarifying that [discrimination based on] pregnancy is a form of gender discrimination." Fordyce explained.

It’s important to note that this law doesn’t only apply to women who are pregnant at the time that the discriminatory act occurs – it’s bigger than that. Employers also cannot discriminate against a woman due to her capacity to become pregnant.

When it comes to pregnancy and discrimination, how do you stay in the clear? The short answer is to ignore the pregnancy and simply treat a pregnant employee like all others. Apply the same policies, both positive and negative. You simply cannot discriminate based solely on the issue of pregnancy, childbirth, or related medical conditions. That said, the PDA does not protect a pregnant employee from ever being discharged after her absence from work, as long as you would have dismissed any other employee for the same behavior. However, if you’ve looked the other way for another employee who has had the same absences or other employment concerns/performance issues, you may be setting yourself up for a pregnancy and discrimination-related claim. Consistency in how you treat employees is paramount.

Pregnancy and Discrimination: ADA

Pregnancy and discrimination issues can also arise out of the ADA because pregnancy-related disabilities can trigger ADA obligations. While employers have no duty to "reasonably accommodate" pregnant employees for the mere fact of being pregnant, employees suffering from an illness – which may be pregnancy-related – may be regarded as disabled, triggering your ADA obligations. In that scenario, you should engage in the interactive process and offer a reasonable accommodation that does not pose undue hardship (e.g. time off, reduced schedule, temporary transfer). Naturally, you do not want to discriminate against someone on the basis of a disability when a reasonable accommodation can be found.

Besides the legal reasons to not discriminate, it just makes good financial sense too. Treating mothers the same as other employees can decrease turnover, which is good for business.

For more information on pregnancy and discrimination, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Tiffany S. Fordyce is an associate in the Chicago office of Greenberg Traurig LLP. She concentrates her practice on commercial litigation, with an emphasis on labor and employment.