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EXAMPLES OF PREGNANCY AND MATERNITY DISCRIMINATION AT WORK IN CALIFORNIA
FIRING A PREGNANT EMPLOYEE
There are many examples of gross pregnancy discrimination, such as when a manager fires a pregnant employee because he doesn’t think she will be able to do her job properly. But there are also less obvious examples. Although an employer may have honest intentions, such as being concerned about a pregnant employee’s safety on the job, it’s still illegal to discriminate against or fire a pregnant employee due to concerns for her well being. For example, even if a job requires lifting heavy objects or being around toxic chemicals, the safety of the employee and her unborn baby is ultimately up to her and her physician, not her boss or employer.
HARASSING AN EMPLOYEE FOR BEING PREGNANT
Frequent or occasional derogatory comments may constitute harassment —such as unwelcome and offensive jokes, insults, physical assaults or threats, and intimidation—that interferes with a pregnant employee or new mother’s work performance and develops into a hostile working environment is considered harassment. This type of harassment can be carried out by a supervisor, co-worker, business partner, or even by clients or customers. For example, if a manager repeatedly makes offensive comments to his employee about how her pregnancy status is affecting her work performance in the hope that she will quit or transfer to a different position, this conduct is inappropriate and considered harassment.
REFUSING TO HIRE SOMEONE BECAUSE THEY ARE PREGNANT
If a new candidate is pregnant or could become pregnant in the future, an employer cannot refuse to hire her for those reasons (The same holds true for an employee who is applying for a promotion within the same company.) Many organizations attempt to justify this by saying that they only want to promote an employee who will be able to continue to work without any interruption. The employer may want to avoid what it assumes will be an adverse economic impact or disruption of production in the workplace but that is illegal. An employer cannot make an assumption based on bias or stereotypes about how that particular employee will perform during her pregnancy or following the birth of her baby.
NOT PROVIDING REASONABLE ACCOMMODATIONS
If an employee has pregnancy-related health complications, she must receive the same treatment and accommodations as other employees who have other medical conditions. For example, if an employee injured her neck and is offered a light-duty assignment until her neck heals, a pregnant worker must also be provided “reasonable accommodations” to perform light-duty work during her pregnancy. Just being pregnant is not enough to immediately offer accommodations, however, the employer may require a medical certification to justify accommodations.
A couple of examples include changing a pregnant worker’s work schedule if she has ongoing morning sickness or providing a comfortable chair for a pregnant worker at her workstation so that she’s not constantly on her feet. In these cases, the employees will likely have to provide a physician’s note to justify their medical conditions.
FIRING OR DISCRIMINATING AGAINST AN EMPLOYEE FOR PUMPING BREAST MILK
Under the Affordable Care Act, an employee who is a new mother must have the chance to pump breast milk at work in a safe and private location other than a bathroom. She must also be given reasonable time off during her work schedule to do so. In some cases, if a company has less than 50 employees, and it can prove that providing breaks or a private space would create “undue hardship” to the company, it may not be required to offer this arrangement to its pregnant employees.
FORCING AN EMPLOYEE TO TAKE TIME OFF, CHANGE POSITIONS, OR NOT CONSIDERING THEM FOR A PROMOTION
Although an employer may believe that a pregnant employee should take time off after giving birth or want to reassign the pregnant employee to a less stressful position, it’s illegal to do so. As long as the employee is able to perform her job duties, she must be allowed to do so.
Again, even though an employer may be under the impression that they are looking out for their employee's interest, employment decisions cannot be based on the assumption that the employee may not be willing or capable of carrying out the tasks of a particular job. For example, an employer cannot refuse to promote an employee who has recently given birth just because the employer assumes she won’t be as committed to her new job responsibilities.
RESTRICTING PREGNANCY-RELATED MEDICAL LEAVE
Under the PDA, an employer is required to allow an employee who has physical limitations due to her recent pregnancy to take leave under the same terms and conditions as other employees who have an equivalent ability or inability to work.
For example, an employer cannot do the following:
A. Fire a pregnant employee for being on maternity leave if it’s covered by an employer’s sick leave policy.
B. Require a pregnant employee who is limited by her pregnancy or related medical conditions to first use her sick leave before using other types of leave if an employer does not require the same of its other staff members who request leave for other medical conditions.
C. Force a pregnant employee to take a shorter leave than what an employer allows for medical or short-term disability leave.
D. Stop a pregnant employee who is temporarily disabled because of her pregnancy from taking leave without pay; that is if an employer does not do the same for other employees who have the same ability or inability to perform the same duties.
In addition, an employer has to hold the pregnant employee’s job open for the same period of time they would for employees who are on sick or temporary disability leave.
Under the Family and Medical Leave Act (FMLA), an employer must allow the pregnant employee to return to her job or one that’s similar in pay, benefits, and other terms and conditions of employment.
RETALIATING AGAINST AN EMPLOYEE WHO FILES A COMPLAINT ABOUT PREGNANCY DISCRIMINATION IN THE WORKPLACE
During the past few years, the EEOC has reported that retaliation is the most common form of discrimination against pregnant employees. But it’s also common in the private sector because it’s a natural reaction for people to retaliate when they feel as though they’ve been affected.
However, it’s against the law for employers to demote, fire, harass, or otherwise “retaliate” against a pregnant employee for filing a pregnancy discrimination complaint, opposing pregnancy discrimination, or participating in a pregnancy discrimination proceeding.
An example would be a pregnant employee who was reported that she could no longer do her job, so she was subsequently demoted. After threatening to file a claim with the EEOC, she was then wrongfully fired because her employer argued that she misappropriated funds from the company when in reality she didn’t.
Although pregnancy discrimination is not easy to prove sometimes, it’s important to document the communications you had with your employer and colleagues and the resulting actions that were taken against you. This information will be extremely useful if you file a complaint with your company or pursue legal action. To prove that you were discriminated against in the workplace, you may also have to exhibit that you were treated differently than your co-workers who had comparable qualifications and performance records.
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