Bumping Pregnancy Discrimination
Pregnancy rights at work.
In this day and age, you would think that pregnancy discrimination wouldn’t be a thing.
You would think that a pregnant woman wouldn’t have to worry about job security just because she’s pregnant, or that outdated views about pregnant women’s capabilities would be a thing of the past. But, unfortunately, pregnancy discrimination does still happen today in the workplace.
It’s important to know that pregnancy discrimination is illegal in the United States and, if you are pregnant, you have rights, which are overseen by a government agency called the Equal Employment Opportunity Commission (EEOC). Pregnancy discrimination can happen to women who are currently pregnant, have been pregnant, or are suspected of being pregnant, and are either current employees or job applicants.
Let’s talk about what pregnancy discrimination is and what our rights are as women to protect us from pregnancy discrimination in the workplace.
Please note that this post is not legal counsel, nor am I an attorney. The purpose of this post is to provide general knowledge regarding The Pregnancy Discrimination Act of 1978 (PDA). For specific questions regarding your personal situation, you will need to contact an attorney or the EEOC.
The Pregnancy Discrimination Act of 1978 (PDA) protects women from employment discrimination due to pregnancy, a pregnancy-related medical issue, and childbirth in hiring, firing, layoff, tasks/responsibilities, demotions/promotions, training, leave, health benefits, and other conditions of employment when the employer has 15 or more employees (https://www.eeoc.gov/pregnancy-discrimination).
Examples of pregnancy discrimination
Being told that you are not a good fit for a position at a new company or at your current employer because you are pregnant.
Your employer denies your requests for time off to go to your OB appointments when other employees’ time-off requests are being approved.
Being demoted on the basis of being pregnant.
Your employer refuses to accommodate a medical condition brought on by pregnancy or childbirth (more on this below) if they employ 15 or more employees, and after you have provided sufficient medical documentation supporting your need for an accommodation.
An employer asks a job applicant or an employee if they are pregnant.
An employer decides not to hire a job applicant or current employee to fill an open position on the basis that the person is pregnant or is thought to be pregnant.
Deciding not to hire a pregnant job applicant because the company does not want that person on the company medical plan out of fear of it having a negative impact on the plan cost.
Asking a job applicant or current employee if they have ever been pregnant in the past, or if they have any intention of becoming pregnant in the future.
Taking any adverse employment action on an applicant or current employee on the basis that the person has had an abortion.
This is not a complete list of scenarios that qualify as pregnancy discrimination. There are many more possible scenarios, and if you have a nagging feeling that you are experiencing pregnancy discrimination, I would encourage you to not ignore it and to do some research to confirm one way or the other.
Also, if you have experienced a situation similar to what is listed above, most likely your employer is not going to tell you the reason for their decision or action is because you’re pregnant. They will likely use another reason, but if this is a decision that is only affecting you and no other employee, or if the reason they give does not make sense to you, then it is worth you looking into further.
To circle back on one of the above examples…as we all know, pregnancy complications or medical conditions brought on by pregnancy happen. In some cases, these conditions affect a woman’s ability to work altogether or require her employer to grant accommodations so that she can continue to work while also managing her health. Which can open the door for discriminatory behavior. In addition to applying under the PDA (mentioned earlier in this post), this scenario would also fall under the Americans with Disabilities Act (ADA).
Intentional and Unintentional Discrimination
I want to highlight here that not all pregnancy discrimination is intentional. Sometimes it is intentional, and sometimes it’s unintentional. Employment law is a confusing area, especially when it comes to pregnancy. But not all employers seek legal counsel when handling employment decisions regarding pregnant employees and applicants, and not all HR professionals are well-informed in this area.
This is why it is so important for you to know your rights! I’m a huge proponent of everyone being their own advocate just as a general rule of life, including in their employment. In a perfect world, all employers and HR Departments would be well-versed in employment law, would consult with an employment law attorney, and would want to respect their employees’ rights. And many are and do…but some aren’t and don’t. So, be your own advocate!
Another scenario that is not uncommon and contributes to employment discrimination occurring is that sometimes supervisors and managers give employees answers regarding company policy without checking the policy first and without HR’s knowledge. This can lead to misinformation being spread. So, do not just assume that what your employer says goes and that they know what they’re talking about. They might give you that information thinking they’re in the right, but that doesn’t mean they actually are.
And just because discrimination may be unintentional doesn’t mean that you aren’t still protected under the law and that you don’t still deserve that protection. Their lack of knowledge or their failure to seek legal counsel isn’t your responsibility. Your job is to make sure that your rights are being honored. I’m of the theory that if a discriminatory policy or decision is truly unintentional, then the employer will be open to doing more research, correcting bad policies, and ensuring that how they proceed is legal.
So, if you suspect your rights are being violated, what should you do…?
Don’t take what you’re being told by your employer at face value. Ask questions and write down what you are told.
It’s important for you to understand the reasoning behind policies, decisions, and actions that are impacting you and your conditions of employment. No reasonable Human Resources department or manager is going to take issue with you asking these questions because it should be expected and anticipated.
If you’re speaking with your supervisor or manager and getting most or all of your information from that source, I would double-check with HR as well. This isn’t a knock against management, but they’re not necessarily as knowledgeable in the company’s policies as the HR department is. Your manager might be giving you what they think is accurate information. And maybe they are. But, it doesn’t hurt to do your due diligence and confirm what you’re being told.
It's also important for you to write down what you’re being told, or to save anything that you have received in writing, such as an e-mail, for your own documentation for three reasons: a.) so that you can reference it later on; b.) so that your employer can’t back-track and say that they never told you that or say that they don’t remember telling you that; c.) so that you have supporting documentation should you need to take official action with an attorney or the EEOC (more on this later).
Know your employer’s maternity leave policy, and document your interactions with management.
Review your employer’s handbook and policies to ensure that what you’re being told is consistent with company policy.
Handbooks and policies can be wordy, so it’s not unheard of for supervisors, managers, or even someone who works in Human Resources, to misremember policies or mix up information. It probably happens less when coming from HR because they work with the handbook every day, but it’s not out of the realm of possibility either.
So, always cross-reference what you’re being told about the company’s policies with what the policy actually says. They should be the same thing. And, that’s the entire purpose of an employee handbook – for employees to know what the company’s policies are! Why wouldn’t you check it?
Fact-check. Verify that what your employer has told you is legal and true.
Even if what you’re told is consistent with what is in the company’s handbook, that doesn’t guarantee that what is in the policy or the handbook is legal.
Ideally, all company handbooks would be reviewed and approved by an employment attorney, but some employers don’t take that step. If they didn’t hire an attorney to review the handbook, then there is a higher risk of some illegal policies, or at best, questionable policies, being in that handbook.
Read the policies and if something seems off or sounds questionable, do a good old internet search. Just make sure that you’re visiting reputable websites to make sure that you’re getting accurate information.
At the end of this post, I have a list of resources – government agencies, advocacy centers, and organizations – that are dedicated to protecting pregnant women’s rights in the workplace. These resources offer information on what’s legal and what’s not. Check them out!
If you’ve confirmed that what you’re experiencing is discrimination, present this information to your HR department.
Make sure to bring your documentation and any other proof you have with you! I cannot speak to how this will be received, but assuming your HR department is staffed with ethical professionals who know their stuff, then they will take your claims seriously, they will initiate an investigation, and they’ll take the necessary actions to remedy the situation if discriminatory behavior is found to have occurred.
If you’ve confirmed that you’ve been discriminated against but have concerns about talking with your HR department or management about what has happened, skip to the next bullet point.
If you do not feel comfortable meeting with HR, you fear retaliation from your employer (firing, suspension, reduction in hours, loss of benefits, etc.), or the meeting with HR/employer didn’t go over well, contact the Equal Employment Opportunity Commission (EEOC), whose information is listed below. The EEOC can provide you with guidance on next steps or help you to file an official complaint.
You can also contact one of the other resources below for a legal referral to act on your behalf. If you are not able to afford an attorney, the below resources may be able to connect you with an attorney or organization that can offer financial assistance.
Legal Resources:
Equal Employment Opportunity Commission (EEOC)
http://www.eeoc.gov/
Toll-free: (800) 669-4000
TTY: (800) 669-6820
Email: info@eeoc.gov
Department of Labor
http://www.dol.gov/
Toll-free: (866) 487-2365 [1-866-4-USA-DOL]
TTY: (887) 889- 5627
A Better Balance https://www.abetterbalance.org/get-help/
Center for WorkLife Law, UC Hastings College of Law
http://www.worklifelaw.org/
Hotline: 1-800-981-9495 or 202-680-8964
Email: hotline@worklifelaw.org
Equal Rights Advocates (ERA)
http://www.equalrights.org/
Hotline: (800) 839-4372 [800-839-4ERA]
(415) 621-0505
Email: info@equalrights.org
The Legal Aid Society - Employment Law Center
www.las-elc.org/index.html
DV & Work Helpline: 1-888-864-8335
Work & Family Helpline (in CA): 800-880-8047
Work & Family Helpline (outside CA):415-593-0033
info@las-elc.org
Women Employed
http://www.womenemployed.org/
Job Problems Counseling: (312) 782-3902 [Wednesdays, 10am-12pm CST]
Workplace Fairness
http://www.workplacefairness.org/
2031 Florida Avenue NW, Suite 500
Washington, DC 20009