What managers need to know about pregnant employees
Another issue to consider: the potential legal pitfalls.
Both federal and state laws provide pregnant employees with special rights in the workplace. The key federal law is the Pregnancy Discrimination Act (PDA), which was enacted in 1978 and covers organizations with 15 or more employees.
At its core, the PDA says workplace discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination. It doesn’t require that you give special treatment to pregnant employees; it just requires you to deal with pregnant employees the same as any other employees with temporary disabilities.
Here are more specifics:
Hiring and firing
Employers can’t fire or refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition (such as an abortion) or because of the prejudices of co-workers or customers toward pregnant women.
That’s why managers should never, during interviews, ask job applicants if they plan to have children or have more children.
Pregnancy and maternity leave
When you discover that an employee is pregnant, offer congratulations and ask how she is feeling. Don’t immediately say something like, “So, will you quit after having the baby,” or “I guess you’ll want lots of time off.” Such comments could be used as evidence of discrimination. Suggest that she talk to HR and discuss her Family and Medical Leave Act (FMLA) rights and other leave issues.
During the pregnancy, make sure you treat any disabilities caused by the pregnancy the same as other temporary disabilities under the company’s health, disability or sick-leave plan.
For example, if an employer has allowed other temporarily disabled employees to modify their work or perform lighter-duty assignments, the employer must do the same with the pregnant employee. (Check with HR before altering pregnant employees’ duties, responsibilities or compen-sation.)
Pregnant employees must be allowed to work as long as they’re able to perform their jobs. She can’t be forced to go on leave as long as she’s physically capable of performing the job’s essential functions.
If a pregnant employee is absent from work due to a pregnancy-related condition and recovers, you can’t require her to remain on leave until her baby is born. Nor can you set a rule that prohibits employees from returning to work for a predetermined amount of time after childbirth.
Must you keep her job open until she’s ready to return? Generally, yes. Unless she tells you that she’s not returning, you must keep her job open for the same amount of time that jobs are held open for employees on sick or disability leave for other reasons.
Nonpregnant employees can sue, too
Don’t think that the PDA just covers pregnant women. The law also bans discrimination against women because of their “capacity to become pregnant.” So you can’t, for example, refuse to hire women because they’re entering their “childbearing years.”
In one recent court ruling, a nurse who was rejected for a promotion successfully filed a PDA lawsuit even though she wasn’t pregnant. Her evidence: She had suffered previous pregnancy complications and the hiring manager asked whether she planned to become pregnant again.
What must an employee prove?
Employees or applicants who file PDA claims simply must be able to show that you took some kind of “adverse action” because of their pregnancy. Lawsuit-filers don’t need to prove that you discriminated deliberately or with “ill will.” They just need to show that they suffered some sort of discrimination, intentional or not.
Also, people can pursue PDA claims only if they can prove the employer knew of their pregnancy. In one recent ruling, a California court tossed out a woman’s lawsuit because she only told co-workers in confidence about her pregnancy. There was no proof that her supervisors knew.
Three final tips
1. Abortion. The PDA says you can’t fire, refuse to hire or discriminate in any other way against a woman because she’s had an abortion. Also, aside from health insurance (which doesn’t have to cover abortions), all fringe benefits, such as sick leave, that cover other medical conditions also must cover abortions.
2. Breast-feeding. The PDA doesn’t cover breast-feeding, but some laws do protect an employee’s right to breast-feed or pump milk on the job site.
3. Retaliation. The PDA also makes it illegal to retaliate against an employee for filing a PDA lawsuit or for complaining about the company’s pregnancy- related employment policies.
At a glance: Pregnancy Discrimination Act
Under the federal Pregnancy Discrimina-tion Act of 1978, it’s illegal to:
- Refuse to hire, to fire or to subject an employee to more adverse working terms and conditions than other employees because she is pregnant (or may become pregnant).
- Treat pregnancy-related medical conditions differently than other disabling conditions.
- Discriminate against pregnant employees with regard to health insurance or other benefits.
- Require pregnant employees to take mandatory maternity leave.
- Discriminate against an employee be-cause she is unmarried and pregnant.