Pregnancy Discrimination Act
Discriminating against a woman because she’s pregnant is a mistake employers can’t afford to make. In 2014, the EEOC received 3,400 pregnancy discrimination complaints, resulting in damages of $14.4 million. That figure doesn’t even include the cases that made it to court.
The Pregnancy Discrimination Act (PDA) of 1978 prohibits discrimination on the basis of “pregnancy, childbirth and related medical conditions.” Employers can’t deny a woman a job or a promotion merely because she’s pregnant or has had an abortion. Nor can you fire her because of her condition or force her to go on leave as long as she’s physically capable of performing her job.
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. That means you must provide the same accommodations for an expectant worker that you do for any employees unable to perform their regular duties. For example, if you provide other work for an employee who can’t lift heavy boxes because of a bad back, you must make similar arrangements for a pregnant worker.
Employers that use light-duty programs to cut workers’ compensation costs often make one big legal mistake: They haphazardly apply their policies, allowing some employees to take light-duty jobs, but not others. That inconsistency is the fastest way to trigger discrimination lawsuits from employees who need light-duty positions temporarily for other reasons, such as some pregnant women.
Case in point: Three months into her job as a truck driver for Swift Transportation, Amanda Reeves got pregnant. Her doctor restricted her from lifting. Because Reeves’ job required heavy lifting, the company sent her home and eventually fired her because it had no work for her. (She didn’t qualify for FMLA leave.) Reeves had demanded one of the light-duty jobs reserved for employees on workers’ comp, but the company refused. She sued for pregnancy discrimination, but the court tossed out her case.
Reason: The company’s light-duty policy was “indisputably pregnancy-blind” and applied consistently. Only employees on workers’ comp could use the policy, and Reeves couldn’t show that any other employee who suffered an off-the-job injury or condition was offered light-duty work. Granting Reeves the light-duty job would, the court said, “afford pregnant women more benefits and better treatment than other employees, instead of the equal benefits and same treatment intended by the Act.” Reeves v. Swift Transportation, No. 05-5271 (6th Cir. 2006)
Bottom line: Had the company allowed other employees a crack at those jobs, it would have lost the case.
In addition, the PDA requires you to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave.
At the same time, you’re allowed to apply the same requirements that you impose on other employees. So, if you usually require employees to obtain a doctor’s note before allowing them to take sick leave and collect benefits, you can impose the same rule on pregnant employees.
Any employer that’s subject to Title VII (15 or more employees) must comply with the Pregnancy Discrimination Act. Other provisions of the law:
- You can’t exclude single women from maternity benefits.
- You must provide the same coverage for pregnancy-related conditions as you do for illnesses and disabilities. The FMLA provides eligible parents with up to 12 weeks of unpaid leave for the birth of a child. Should a new mother still be unable to return to work after exhausting her FMLA leave, her condition should be evaluated under the ADA to determine whether additional time off is a reasonable accommodation given her condition. Some states provide longer than 12 weeks for parental leave. Check the laws in your state.
- 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.
- An employee with a single-coverage policy cannot be forced to purchase a family policy in order to be covered when she becomes pregnant. However, she should be allowed to switch to the family plan after the birth so that her child will be covered.
Observation: Charges of discrimination on the basis of pregnancy or related conditions are difficult to fight in court. You will lose unless you can clearly prove that the reasons for not hiring or for discharging the plaintiff were unrelated to the pregnancy. Consider this case:
Motherhood Maternity, a Philadelphia-based retailer, paid $375,000 to settle a pregnancy discrimination and retaliation lawsuit brought by the EEOC. The lawsuit claimed that Motherhood refused to hire qualified female applicants because they were pregnant. The suit also charged Motherhood with illegally disciplining and firing an assistant manager because management believed she was pregnant and in retaliation for her discrimination complaints. EEOC v. Mothers Work Inc., dba Motherhood Maternity, No. 3:05-CV-990-J-32TEM in U.S. District Court for the Middle District of Florida, Jacksonville Division (2007)
Prima facie case
With respect to the PDA, courts employ a three-part analysis (similar to that employed under the ADEA). First, the plaintiff is required to establish a prima facie case by showing that she belonged to a protected class; was qualified for the position from which she was terminated; and persons outside the protected class were retained.
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for her termination. Finally, if the defendant provides such a reason, then the plaintiff must show that the reason was a pretext for a discriminatory motive.
Singling out pregnant employees for any reason can lead to a lawsuit. If supervisors make little jokes about pregnancy and childbirth, rein them in. In one recent case, when a top performer received an award at a luncheon, she was taken aback when her boss casually said, “You’re not gonna get pregnant now, are you?” As luck would have it, she did become pregnant the following month. Then her boss began calling her “Prego” and soon was criticizing her work. She complained to HR, but the company didn’t investigate. She sued, and the court concluded calling her “Prego” and making comments about pregnancy amounted to a hostile environment. Zisumbo v. McleodUSA Telecom, No. 04-4119 (10th Cir. 2006)