Understanding the Law Surrounding Pregnancy Discrimination
The Civil Rights Act of 1964 mandates that no employee or job candidate can be discriminated against on the basis of numerous factors, including race, religion, national origin, sexual orientation, gender identity, and disability. In 1978, the Pregnancy Discrimination Act (PDA) was codified to explicitly render anti-discrimination protections on the basis of pregnancy status. In 1993, the Family and Medical Leave Act (FMLA) introduced additional rules to protect eligible employees needing to take temporary leave to manage medical conditions. Together, these three laws provide employees navigating pregnancy with a great deal of protection.
Unfortunately, many employers attempt to circumvent these rights and discriminate against those who are pregnant or are suspected to soon become pregnant. Inappropriately behaving employers will use numerous justifications to shield their true discriminatory intentions, so it is crucial that employees look for warning signs that unlawful conduct may be occurring. Below, we cover an employee’s rights involving their or a loved one’s pregnancy status, how to recognize problematic employer behavior, and what to do should discriminatory action occur.
Unlawful Employer Actions Involving Pregnancy
It is unlawful for an employer to discriminate against any employee who is pregnant, may soon become pregnant, or whose loved one is pregnant or may about to become pregnant. An employer must not also choose not to hire someone on the basis of their pregnancy or suspected pregnancy status.
Should you become pregnant, your status is treated like any other medical condition and therefore requires reasonable accommodations. Your employer must not refuse any requests for reasonable accommodations, including a temporary shift in job duties that do not aggravate your pregnancy. If you previously worked in a physically strenuous position, for example, you might request to work in a position where you can sit, instead. Your employer is lawfully obligated to work with you to find an agreeable accommodation.
An employer may not demote, terminate, or otherwise retaliate against someone who becomes pregnant or is suspected to soon become pregnant. A depressingly common scenario involves a pregnant woman being laid off in the months before she is expected to take maternity leave.
If an employee is eligible under FMLA, employees are permitted to take temporary medical leave to treat pregnancy-related conditions without fear of retaliatory action. Reasons for leave can include complications involving the pregnancy, childbirth, and complications following childbirth. It also protects family of someone who is pregnant, meaning an employee can conceivably take temporary leave to assist with their spouse’s pregnancy complications. To qualify for FMLA protections, an employee must work for a company with a minimum of 50 employees. They must have been employed for a minimum of 12 months, with at least 1,250 hours logged.
Warning Signs that Pregnancy Discrimination May Be Imminent
Discrimination related to pregnancy can take many forms – some obvious, some not. It is important to be vigilant about all instances of inappropriate behavior, no matter how seemingly small or insignificant, as these early warning signs can often portend more severe actions.
Some common scenarios that may signal imminent pregnancy discrimination include:
- Questions about pregnancy or children during the hiring process. When you interview for a position, the hiring manager may want to know more about your personality and personal life to determine if the position is a good fit. However, watch out for questions involving “wanting children” or whether you already have them. If you are male, be wary of questions probing whether your female spouse is pregnant or whether the two of you want kids. All of these inquiries are likely signs that an employer does not want to deal with maternity or paternity leave and may choose not to hire you as a result.
- Continued comments about children following a marriage.If you become married while employed, questions or comments from your boss or manager involving your desire to have children may point to trouble. They are likely concerned that you or spouse will become pregnant, which will in turn lead to paternity or maternity leave. Any comments will often appear to be made in spirited jest to create plausible deniability, but they likely have ulterior motives.
- Jokes about being able to keep up with work. Dealing with the physical implications of a pregnancy can be arduous in and of itself, but depending on the nature of your job duties, you may still be able to carry on with work without needing special accommodations. However, your manager or boss may joke or make other comments about your ability to maintain your performance or otherwise operate in the workplace due to your pregnancy. Again, these will be presented as comments not to be taken seriously, but your employer may be laying the groundwork to dismiss you on the grounds that you were unable to adequately do your job.
- Constant inquiries on whether you are “okay.” Similarly, your manager or boss may feign concern about your condition as your pregnancy develops. This will typically revolve around whether you are physically capable of performing your job duties. They may be attempting to build a case to dismiss you before you can take maternity leave.
- Resistance to reasonable accommodations. When working while pregnant, you are entitled to requesting reasonable accommodations to your workspace and job duties. As we mentioned above, duties that require a great deal of physical action may require modification to a more sedentary position for the duration of the pregnancy. You should not be shamed for asking for these accommodations, and there may be cause for concern if your employer seems reluctant to find a compromise.
- Sudden, unsolicited reduction of job duties. There may be cause for alarm if your employer abruptly reduces the extent of your job duties without your asking for accommodations. They may argue they are only attempting to make working with your pregnancy easier, but there is a decent chance they are again crafting a narrative that you were unable to maintain previous levels of performance.
Recognizing When You Have Suffered Pregnancy Discrimination
Some of the above warning signs, like comments about a pregnancy, are considered harassment on their own. These signals tend to build toward a more egregious, damaging act of pregnancy discrimination that can imperil your employment in a critical moment. It is important that you recognize when this discrimination occurs so that you can immediately begin preparing a legal response.
You may have suffered pregnancy discrimination if:
- You were fired without a clear or justifiable reason. If you are being terminated, you will likely want to understand why, especially if your job performance has been consistently meeting expectations. If you noticed some of the warning signs denoted above, your employer may have been carefully building a faux “case” for firing you, even though your actual performance did not measurably depreciate. If your employer cannot produce coherent reasons for why you are being dismissed, pregnancy discrimination may be the culprit. This is true for both females who are pregnant and males whose spouses are pregnant.
- You were terminated in a manner inconsistent with company policy.Many companies, especially larger enterprises, have a complex bureaucracy that manages employee performance and terminations. In many cases, it is company policy for employees to receive warnings and performance reviews that signal that they are in danger of being let go if their work does not improve. If you are fired without these protocols being followed, and your employer cannot muster adequate reasons for forgoing them, pregnancy discrimination may be at work.
- You are laid off with suspicious timing. Some employers will disguise pregnancy discrimination as part of a wider layoff. This can be an effective tactic, as companies will also dismiss nonpregnant employees and make the actual motive of the layoff opaque. Still, it is unusual to be laid off when you are mere months away from maternity or paternity leave, and your employer may still struggle to present an explanation for why you were chosen for dismissal.
- You do not receive a promotion while pregnant despite superior work performance. No one is necessarily guaranteed to receive a promotion, but it can be depressingly common for employers to refuse one to someone who is pregnant or expected to soon become pregnant, even when they are measurably the obvious choice. This type of discrimination can be especially difficult to prove, but if your previous performance reviews and seniority indicate a strong employment record, you may have a case.
- You receive fewer hours and/or are consistently given unfavorable work assignments.Should you become pregnant, you have the right to request reasonable accommodations to your job duties and workspace, just like with any other medical condition. However, that does not give your employer license to give you fewer hours or repeatedly assign you the least desirable work assignments. These tactics are likely intended to frustrate you and compel you to voluntarily quit before you take maternity leave. This can also occur in situations where males are expected to take paternity leave to assist with their spouse.
- You are refused reasonable accommodations.If an employer outright refuses to accommodate your condition, they are actively engaging in pregnancy discrimination and are likely hoping you will voluntarily quit. Employers who engage in this regrettable practice will often claim they are providing accommodations that are not actually reasonable and will instead label a protesting employee as “difficult,” possibly justifying escalations down the line.
We Can Help You Fight Pregnancy Discrimination
When you have been discriminated against due to your or a loved one’s pregnancy, you have limited time to act. In the state of California, you have two years from the date of the discriminatory act or the day you learned of the discriminatory act to file a lawsuit against your employer. If you believe you may have been treated inappropriately as a result of your pregnancy, you should immediately contact legal representation. Bill Marder, our founding attorney at Marder Employment Law, has over 25 years of experience helping clients fight employer injustice. We can evaluate the facts of your situation and determine if you have a case.
Do not wait to call (888) 796-4010 or contact us online to schedule your free initial consultation.