By attorney Marc A. Rapaport, Special to THELAW.TV
Employment discrimination on the basis of pregnancy, childbirth, or related medical conditions is prohibited by federal law (Title VII), which applies to employers with 15 or more employees. Even if you work for a company with less than 15 employees, you might still be protected against pregnancy discrimination under the local anti-discrimination law of the state, county, or city where your workplace is located.
Pregnancy discrimination in the workplace can take many forms. An employer cannot refuse to hire a woman because she is pregnant or has a pregnancy-related condition, as long as she is able to perform the major functions of the job. Similarly, an employee may not be fired, demoted or denied a promotion because of pregnancy.
If an employee is temporarily unable to perform her job because of pregnancy, she must be treated in the same manner as any other temporarily disabled employee. For example, if an employee must call in sick because of a pregnancy-related illness, she cannot be subjected to termination if the employer routinely lets non-pregnant employees take sick days or disability leave. Similarly, if an employer makes accommodations (such as permitting light duty, modified work tasks, alternative assignments, or working from home) for temporarily disabled employees, the same types of accommodations must be granted to pregnant employees who need them. A pregnant employee is entitled to the same level of rights, benefits, and reinstatement privileges given to other workers with temporary disabilities.
If you are being singled out for unfavorable treatment because of pregnancy or a pregnancy-related medical condition, there are five important measures that you can take to preserve your job and to protect your legal rights if you decide to file a lawsuit against your employer:
1. Leave a paper/email trail of all occurrences. It is in your best interest to create a contemporaneous record of every communication and incident that relates to the discrimination that you are experiencing. For example, if your manager verbally denies your request to take time off, you should quickly follow up on that conversation with an email or written memo. Similarly, your requests for accommodations (such as time off, light duty, or a change in work assignments) should be in writing. Make photocopies or electronic copies of all such communications. These communications and other records may be extremely useful if you file an administrative or court claim for pregnancy discrimination. Keep the copies, as well as a log of events, in a safe location away from your workplace.
2. Read and follow the handbook. Your employer may have a written booklet setting forth rules and procedures. This booklet is sometimes referred to as the employee handbook. You should review the handbook's provisions that relate to: (a) disability/short-term disability; (b) pregnancy; (c) discrimination; (d) leaves of absence; and (e) filing of internal complaints regarding discrimination. Typically, the handbook will state that complaints regarding discrimination should be brought to the attention of a senior manager or human resources representative. You should follow this procedure. Be sure to document your complaint in writing or via email. If you meet a human resources representative, it is important that you speak politely and professionally. You should provide a detailed synopsis of the facts pertaining to the adverse treatment that you have suffered.
3. Focus on your performance. Like victims of other discrimination, women who are subjected to pregnancy discrimination oftentimes experience overwhelming anxiety, depression, and self-doubt. Under even the best of circumstances, managing the combined demands of the workplace and pregnancy is challenging. When a manager's hostility or unreasonableness is added to the mix, the stress can seem overwhelming. Nonetheless, it is important that you continue to perform your job and follow the rules of your workplace. Otherwise, you run the risk that your employer will seize upon poor work performance as a pretext for terminating you.
4. Discreetly speak with co-workers. Your female coworkers may have suffered similar discrimination. You may wish to discreetly talk to coworkers or former employees to find out how they were treated. If you decide to take legal action against your employer, the experiences of other victims may be helpful for your case.
5. Consult with a discrimination lawyer. The benefits of speaking with an experienced discrimination attorney may prove to be invaluable. Some (but not all) states and cities have local anti-discrimination statutes that are more protective than federal law. An attorney will be able to inform you of your rights under local laws. He or she will also be able to guide you on how to best preserve your rights, protect your job, and preserve evidence. In some instances, it may be appropriate for the attorney to communicate with your employer on your behalf.
The author, Marc A. Rappaport, is a New York divorce lawyer.