Pregnant Employees

Are you uncertain as to how to treat a pregnant employee, and wonder about what you have the right to expect of her? Taking a little time to acquaint yourself with anti-discrimination laws now can save a lot of time and money down the road.

Pregnancy Discrimination Act

An amendment to Title VII of the Civil Rights Act of 1964, known as the Pregnancy Discrimination Act of 1978 ("PDA"), makes it unlawful to discriminate based upon pregnancy, childbirth, or related medical conditions.

The PDA provides a number of protections to pregnant women, aimed at making sure that employers treat pregnant women the same as other applicants or employees with temporary disabilities or limitations.

Under the PDA, it's illegal for an employer to:

• Refuse to hire, to fire, or to subject an employee to more adverse terms of employment than others because she is pregnant or may become pregnant
• Treat pregnancy-related conditions differently from other disabling conditions
• Discriminate against pregnant women with respect to fringe benefits
• Require an employee to take mandatory maternity leave, or
• Discriminate against an employee because she is pregnant AND unmarried

As an employer, you must hold a job open for a pregnancy-related absence for the same amount of time as jobs which are held open for other employees on disability or sick leave.

But you don't have to treat a pregnant employee any better than you'd treat a non-pregnant employee. For example, you can deny disability benefits to pregnant employees if you also deny the same benefits to other employees with temporary disabilities. And you don't have to excuse tardiness due to morning sickness if you don't excuse tardiness for a different health-related reason.

The PDA doesn't cover breastfeeding, but some states have laws protecting a mother's rights to breastfeed at a job site.

Some states also grant additional rights to pregnant workers or job applicants. In particular, a few states have "temporary disability insurance" laws that pay partial wages during time off due to medical problems, including pregnancy.

Under the Health Insurance Portability and Accountability Act ("HIPAA"),employers must cover pregnancy-related conditions in the same way as other non-related medical conditions.

Pregnancy Discrimination Prevention

It's best not to have separate "maternity leave" policy, because that suggests there's something that distinquishes pregnancy from other types of temporary disabilities. If your company is subject to the Family Medical Leave Act ("FMLA"), you can frame a pregnant employee's leave within those federal requirements.

Interacting With A Pregnant Employee

Many supervisors are uneasy about what to say to an employee who announces that she's pregnant. To avoid accidentally discriminating against a pregnant employee:

• Ask appropriately concerned questions, such as "How are you feeling?" and "Is there anything we can do to help you?"
• Don't suggest that she should be at home instead of working
• Mention that she may want to find out about the company's FMLA policy, as she'll need to give some advance notice if she's planning to take a leave
• Direct the employee to your company's human resources department for help
• If you haven't disciplined the pregnant employee for tardiness and other problems before the pregnancy, don't start now

Proving a PDA Violation

An employee or applicant seeking to prove a case of pregnancy discrimination must show that the employer knew of the pregnancy. She must also show that, because of the pregnancy, the employer took some adverse employment action against the employee or applicant or denied the employee some benefit afforded to other employees. An employee may also prevail by showing that the discrimination against her was part of a pattern or practice of discrimination against all pregnant employees or applicants by the employer.

An employee or applicant isn't required to prove that the employer acted intentionally or with any ill will.

Some employers try to defend against pregnancy discrimination actions by asserting what's called a "bona fide job occupation qualification defense" ("BFOQ"). In essence, the employer tries to prove that non-pregnancy is a job requirement. To be successful, an employer must prove that the BFOQ is necessary to the operation of the employer's business. With respect to pregnancy, this is difficult to do.