Pregnancy discrimination charges and lawsuits continue to rise, and no surprise—Many managers still hold out-moded ideas of how to treat pregnant employees, and that’s a recipe for your organization’s next lawsuit.
“All pregnant employees should stop work 30 days before their due dates.”
“Pregnant women should stay out 6 weeks after the birth.”
“I’m not hiring a pregnant applicant—she’ll just go on leave the day I get her trained.”
“Pregnant women shouldn’t be working after the baby comes.”
These ideas are out there, but they’re all out of line and legally indefensible. We turned to our colleagues at HRhero.com for some guidelines. Here’s what managers and supervisors should know.
Refresher on Pregnancy Discrimination Law
When Title VII of the Civil Rights Act of 1964 was originally enacted, it prohibited discrimination on the basis of race, color, religion, sex, and national origin—but not pregnancy. Some years later, the U.S. Supreme Court decided General Electric Co. v. Gilbert and held that an employee disability benefits plan that excluded coverage for employees temporarily disabled because of pregnancy did not constitute gender-based discrimination under Title VII.
In response to the outcry over that decision, in 1978, Congress passed the Pregnancy Discrimination Act (PDA), amending Title VII to prohibit employers from discriminating against female employees or job applicants based on pregnancy, childbirth, or related medical conditions.
If your company has more than 15 employees, the PDA prohibits you from:
- Refusing to hire a woman because she is pregnant; and
- Firing or forcing a worker to leave because she’s pregnant. A pregnant employee must be allowed to keep her job as long as she is able to perform her duties.
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What should you do if an employee’s pregnancy prevents her from performing some, but not all, of her job duties? If your company offers other workers easier duties for a limited time when they cannot do their regular jobs, then you must offer the same accommodation to pregnant workers.
Furthermore, you cannot regulate how much time an employee must take off work either before or after childbirth if she is able to do her job.
Under the PDA, you are also prohibited from:
- Treating a female employee who has recently had a baby differently than employees dealing with other types of medical conditions
- Taking away credit for previous years worked, accrued retirement benefits, or seniority because of maternity leave
- Firing or refusing to hire a woman because she has had an abortion
In addition, you must treat an employee who has recently given birth at least as well as you treat other workers who cannot do their jobs for a short period of time. For example, if you permit a worker to go on paid or unpaid leave because of a heart attack or a broken leg, you must offer that arrangement to a worker who needs time off for childbirth (or pregnancy).
Also, you must hold the new mom’s job for her at least as long as you would hold open a position for an employee who is out on sick or disability leave.
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Some other things to consider when dealing with a pregnant employee:
- Invite input on accommodations. Ask the employee to provide input from her health care provider when a disability or medical impairment is involved. Let the employee know you want to work with her to implement suggested accommodations.
- Involve HR in discipline. HR should help supervisors and managers who are dealing with an employee in a protected class situation. When the potential for litigation is high, it makes sense to go slowly and provide ample warning of performance deficiencies to the employee before resorting to termination. If necessary, call in your lawyer.
- Document everything. Document your efforts to accommodate pregnant employees or employees with a mental or physical impairment. Document performance issues and the progressive discipline process. Document the employee’s response to offers of accommodation. Finally, if it comes to that, document the termination process.
- Be consistent. The PDA doesn’t afford special treatment to pregnant employees, just consistent treatment. You must treat pregnant employees—or other protected-class employees—the same way you have treated non-protected-class employees in the past.
In tomorrow’s Advisor, pregnancy and the FMLA, plus an introduction to the guide many call the “FMLA Bible.”
And, in the post-pregnancy phase, don’t forget about the breastfeeding requirements. Violating those could also be evidence of discrimination.
What is the EEs status if they work for a temporary help firm? Are you required to keep a job for them, or is it considered a voluntary quit?
Barb’s observation is a good one. Many states have adopted additional regulations for lactating mothers. Most of these contain a provision stating that an appropriate private space, not a bathroom, must be provide for the mother to lactate.
Also remember that even joyous news, such as the mother has gone into labor or details about the birth, can be considered sharing of protected health information. HIPAA states that pregnancy must be treated as you would any other medical condition. Take the time to find out how much information the expecting mother wants to share with coworkers about the birth of her child before she goes on maternity leave to prevent a possible HIPAA violation.