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Pregnancy bias: New census trends heighten your risk

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in FMLA Guidelines,Human Resources,Maternity Leave Laws

If you've only semiunderstood the Pregnancy Discrimination Act (PDA) until now, it's time to brush up. Reason: The 24-year-old law is spawning its greatest number of claims yet. (See chart below.)

That trend will likely continue. Reason: Census Bureau data show that a greater number of women are working while they're pregnant and opting to return within six months or less after giving birth.

That's why it's wise to review your policies and practices that pertain to the PDA and related state laws.

Latest example: In late February, Verizon settled a major pregnancy bias class-action lawsuit brought by the Equal Employment Oppor-tunity Commission (EEOC). The company will have to pay thousands of current and former employees for bias related to pregnancy or maternity leave. Final tab: In the millions of dollars, making it one of the largest EEOC settlements involving pregnancy- related bias.

Brush up on PDA facts

Any employer subject to Title VII (15 or more employees) must comply with the PDA, which prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions. A woman can't be denied a job or a promotion because she's pregnant or has had an abortion. Also, she can't be fired because of her condition, nor can she be forced to go on leave as long as she's physically capable of performing her job.

The law doesn't require your company to grant pregnancy leave. But it does require employers to grant the same coverage for pregnancy-related conditions as they would for other illnesses or disabilities.

The benefits must continue as long as the pregnant employee is medically unable to work, unless you have established limitations on how long you cover all other temporary disabilities. In that case, you can treat the pregnancy as you do any other temporary disability.

And women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave. (See box below.)

In short, the law requires that pregnant employees be treated the same as other employees on the basis of their ability or inability to work.

One plus: You can require a pregnant employee to use her vacation benefits before she can collect sick leave or disability pay, as long as you have the same requirement for employees absent for other types of disabilities or illnesses.

Figure FMLA into equation

The Family and Medical Leave Act (FMLA) can be used as pregnancy or parental leave in certain situations. Among the rules that apply:

  • Pregnant employees are entitled to use FMLA leave if complications from their pregnancy constitute a serious health condition. As a practical matter, if a woman's doctor determines that a period of leave is medically necessary, for instance, she can use FMLA leave.
  • New parents can use FMLA leave as parental leave following the birth or adoption of a child, or the placement of a foster child, at any time during the first year after the new child arrives.

Finally, to avoid even the appearance of discrimination by offering a benefit that only women use, offer parental leave rather than maternity leave. If you offer any time off for a parent to spend with a newborn child, make it available to both fathers and mothers.

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