When it comes to maternity or childbirth leave, women have at least two federal laws that protect them from possible discrimination.
The first is the , which provides up to 12 weeks’ leave for pregnancy, birth and infant care. The (PDA) also protects women from sex-based discrimination. It bars employers from treating pregnancy differently from any other conditions and outlaws discrimination based on a woman’s childbearing capacity.
The FMLA and the PDA work together. Employers who understand that aren’t likely to make mistakes that result in lawsuits.
Applying more restrictive policies to pregnancy-related than to other qualifying FMLA leave may violate the PDA, as the following case shows.
Recent case: Police officers Cynthia Orr and Patricia Paiz sued their employer, alleging that the department’s personnel director discriminated against them on the basis of pregnancy.
They alleged that when they took , the department required them to use up any accrued sick leave before they could use vacation leave. In addition, the personnel director told them that under no circumstances could they use up any of the many hours of accumulated compensatory time they had earned.
It turned out that the personnel director regularly reviewed maternity leave requests, making it appear that pregnant women were singled out. Other employees who took FMLA leave for other conditions—ranging from kidney dialysis to caring for a sick family member—were allowed to use vacation time first.
Orr and Paiz argued that denying them the right to use vacation and comp time had a negative effect on their ability to retire early and earn more overtime. Here’s why: Vacation time was capped and had to be used by the end of the benefit year, while employees could accumulate sick leave indefinitely and use it to either retire early or cash it out when they retired. The department also capped compensatory time. If the women couldn’t use comp time for maternity leave, they couldn’t earn more overtime until they took the time off after returning from childbirth leave.
The 10th Circuit Court of Appeals sent the case to trial. It concluded there was evidence that the police department singled out pregnant women when dictating how they could use their leave. The court noted that employers can’t legally treat time off for pregnancy differently than time off for other ills. Plus, it pointed out that specify that “no limitations may be placed by the employer on substitution of paid vacation or personal leave for FMLA purposes.”
In other words, employers can’t force employees to use up any particular form of paid leave before another form. (Orr & Paiz v. City of Albuquerque, No. 07-2105, 10th Cir., 2008)
Final note: Compensatory time in lieu of overtime is only an option for public employees, and only if they agree to it. Private employers can’t offer comp time for hourly employees, but must pay them overtime under the Fair Labor Standards Act ( ) and any applicable state . It doesn’t matter if your hourly employees would prefer the additional time off.
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