It’s positive! You’re going to be a mom. Are you excited? Nervous? It’s a life-changing moment for anyone.
We have come a long way over the past few years towards fully accepting women in the workplace. We are starting to see cracks in the glass ceiling. But it’s still not perfect.
Women still feel nervous about telling their boss they are pregnant. Women are still told “when” to have children if they want to advance in their careers.
Make no mistake, any actions that treat you differently or are intended to discourage you from getting pregnant violate the law. A pregnancy discrimination lawyer can help hold your employer accountable by:
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Companies cannot legally fire women for being pregnant.
Congress passed Title VII of the Civil Rights Act (Title VII) in 1964. This statute created anti-discrimination laws in the workplace.
The Pregnancy Discrimination Act (PDA) is a federal law designed to prohibit employers from discriminating on the basis of pregnancy. Congress passed the Pregnancy Discrimination Act in 1978, which amended previous anti-discrimination laws.
Title VII introduced sweeping reforms to civil rights in this country. Employers could no longer discriminate on the basis of gender, race, national origin, or religion.
The Pregnancy Discrimination Act amended Title VII to include pregnancy in the definition of sex discrimination.
This amendment formally barred employers from discriminating due to pregnancy, childbirth, or any pregnancy-related medical condition.
Under federal law, your pregnancy is protected. You have the right to work and to get pregnant. And employers can no longer factor your pregnancy into their employment decisions. Employers cannot refuse to hire you due to your pregnancy.
Employers must treat pregnant employees the same as non-pregnant employees.
Your employer can lay you off while you are pregnant. Employment in the United States is at will. That means that an employer can fire you for any non-illegal reason. An illegal reason would be any termination that resulted from discrimination under the employment laws.
In this case, if your employer lays you off because you are pregnant, in violation of the Pregnancy Discrimination Act, then you are entitled to damages.
Employers usually try not to fire pregnant women. It’s a tough argument for an employer to say that the termination was not because of your pregnancy.
Even if the employee was awful at their job, the employee could still argue that, if their performance was really so bad, the employer should’ve fired them earlier.
Layoffs, however, are slightly different. Sometimes employers have to make massive layoffs, known as reductions in force (RIFs).
Proving pregnancy discrimination during a layoff is challenging. Employers try to make sure that the layoff does not discriminate against a certain group.
Their goal is generally to come up with a formula that terminates lower performers without targeting any particular protected group (race, gender, religion, etc.)
If the RIF at your job disproportionately affects pregnant employees, then you likely have a case.
You should know that there are many situations in which you could face pregnancy discrimination.
But the first thing that you should know is that there is almost no chance of an action or comment from your employer being categorized as pregnancy discrimination unless your employer definitively knows you are pregnant.
Next, you must determine whether the situation in which you are involved is actually considered discrimination. Pregnancy discrimination differs slightly from other forms of discrimination.
In pregnancy discrimination cases, it’s seemingly more often that someone will say something that rises to discrimination. In pregnancy discrimination cases, it is less likely that a person will use a discriminatory word and more likely that they will make discriminatory comments.
In racial discrimination cases, it’s fairly obvious to everyone that the “n-word” is off-limits. In pregnancy cases, you still, even today, might encounter an inappropriate remark. These assumptions, remarks, and/or actions that lead to an adverse employment action are considered discrimination.
An adverse employment action occurs when your employer does something that negatively affects your employment. This could be termination, demotion, etc. Your company also cannot refuse to hire you due to your current pregnancy.
Employers must treat a pregnant employee the same as they treat non-pregnant employees.
If you suffered an adverse employment action and are pregnant, you should consider:
The first thing you should know is that you do have to inform your employer of your pregnancy. Like most areas of employment law, your employer has to have knowledge in order for you to have protection.
Many women wait three months until they tell anyone that they are pregnant because the chance of a miscarriage decreases significantly after those first three months.
Some women wait until they have a visible “bump,” or until they can no longer hide their pregnancy. This is a choice personal to you.
You should know, however, that the great protections that you have against pregnancy discrimination in the workplace only start when your employer knows or should reasonably know that you are pregnant.
There have been instances where an employer knew that a woman was pregnant, despite the employee not informing the employer. Obviously, a pregnancy bump might provide an employer with enough evidence to suspect pregnancy.
Maybe the employer heard rumors from coworkers.
This instance, however, where the boss heard rumors of an employee’s pregnancy, would require circumstantial evidence after the fact to prove the employer’s knowledge. But imagine trying to prove that your employer heard a rumor that you were pregnant.
It’s likely best to tell your employer you are pregnant as soon as you feel comfortable doing so. Employers have fired women who are pregnant. And they often claim that they did not know about the pregnancy.
You can easily take that defense away from your employer by telling them that you are pregnant as soon as you are comfortable doing so.
You should also inform your employer if you intend to take any unpaid maternity leave under the Family and Medical Leave Act (FMLA). The Family and Medical Leave Act provides unpaid leave and job protection during pregnancies.
If you qualify for leave under the Family and Medical Leave Act, you will want to let your employer know how much leave you intend to take.
Employers cannot assume that a pregnant woman cannot do her job properly. The Equal Employment Opportunity Commission (EEOC) is a federal agency that investigates workplace pregnancy discrimination.
It also provides guidance on the different employment law statutes. This includes pregnancy discrimination.
The EEOC provides an interesting example of an assumption.
In this example, a woman took off work because she was not feeling well. Her sickness was unrelated to her pregnancy.
When she returned to work, her boss told her that her body was trying to tell her something and that he needed an employee who would not have attendance problems.
The next day, her employer terminated her. The investigation revealed that this woman had better attendance than non-pregnant employees.
Now, in this example, the boss did not explicitly say that the attendance problems were because of her pregnancy. After all, she asked for time off for a different reason. And when he told her that her “body was trying to tell her something,” he didn’t necessarily mean pregnancy. He could have been talking about the sickness.
But the recorded evidence revealed that she did not have any previous attendance issues. The boss, however, assumed that because she was pregnant she must have attendance issues.
Her previous attendance record is how pregnancy discrimination lawyers would prove pregnancy discrimination in this case. This example would have made for a strong pregnancy discrimination case.
Assumptions are harder to prove than specific comments. Diving into someone’s head and proving what they are thinking is not easy. That’s why remarks are better evidence.
You probably can think of some remarks that supervisors might make.
The examples can go on and on.
The Americans with Disabilities Act (ADA) allows for disabled workers to request reasonable accommodations. Employers must provide reasonable accommodations to help disabled employees perform their jobs.
But pregnancy is not a disability. You cannot request a reasonable accommodation just because you are pregnant.
You can, however, request a reasonable accommodation for a pregnancy-related medical condition. Your pregnancy-related medical condition may still be protected under the Americans with Disabilities Act.
You believe that you are facing pregnancy discrimination.
Now, you may be wondering what you should do next. Here are your first steps:
At this point, it is recommended that you contact a pregnancy discrimination attorney. Remember, pregnancy discrimination does not just include discrimination based on pregnancy but also discrimination based on any pregnancy-related conditions.
An employment attorney can advise you more specifically on what your next steps should be based on your unique circumstances.
Even though discrimination cases vary greatly from situation to situation here is some general information on how to report discrimination. It might make sense for you to report the discrimination right away.
If you report the discrimination, you have now engaged in protected activity. Protected activity occurs when you inform your employer that you believe unlawful employment actions have occurred.
In your case, this means that someone discriminated against you on the basis of your pregnancy.
Once you have reported the discrimination, you have put your employer on notice. The employer now knows that any further discrimination will be scrutinized. And it is very likely that your employer will stop the bad behavior.
A common problem here is your potential fear that your boss will hold reporting the discrimination against you.
Or, worse yet, your boss is still discriminating against you even after you reported them. In almost every case, it is a good idea to tell HR if you plan to report discrimination.
If you tell HR, they can act as a third party. They may even be able to leave your name out of it. Your boss is much more likely to listen to HR than to you. An email like the example below would work well in this instance.
This is not, by any means, an exact formula that you must follow. However, written communication is always better than verbal. You can, of course, have a verbal conversation with HR.
But you also want written documentation that can be traced with a time-stamp. An email is a wonderful way to document your communication, and it also makes for a strong exhibit at trial.
If the discrimination still does not stop, or if it gets worse, you likely have a claim for retaliation. Retaliation occurs when you engage in protected activity, and then,nd after that engagement, your employer adversely affects your employment.
Termination often follows a report of pregnancy discrimination.
Retaliation cases are pretty easy to prove because they depend almost exclusively on how much time passes between the report and the time of the employer’s decision to terminate the employee.
If you report discrimination and your boss fires you the next day, then you have a great case. If your boss fires you a year after you report, your case is not nearly as strong.
You should also look out for pregnancy-related harassment [internal].
If you believe that pregnancy-related discrimination, harassment, or retaliation has occurred, you need to start documenting everything. This means that you should document negative emails, comments, summarize negative phone calls, take notes of incidents, etc.
You should not record anyone unless you have already spoken with a lawyer. And you should email yourself – if allowed by company policy – all documentation.
Emails have time stamps and metadata attached to them that show when they were sent. If the documents contain confidential business information, however, then they should not be emailed, as this could be seen by the company as you trying to steal company secrets.
Timestamps and metadata are our friends in court. It is also recommended that everything should be saved in an organized place, such as a cloud service like Dropbox, GoogleDrive, or an external hard drive so that it is easily accessible.
Cloud services make it easy to search for information even years down the road It is important to remember that there might be a long time between the report of discrimination and the lawsuit.
The law protects the rights of pregnant employees. You have every right to do the same meaningful work that you did before you became pregnant.
Oftentimes, employers forget this fact. Luckily, the law is on your side. If you suspect discrimination, remember, you should say something. You should inform your employer, and going to HR is always a good idea. But, as always, it’s best to begin by calling a lawyer.
Most pregnancy discrimination lawyers give free consultations at no charge to you. They also generally take cases on contingency, which means that there is no fee unless you recover.
What are you going to do to resolve discrimination at work?
Our Pittsburgh and Philadelphia pregnancy discrimination lawyers are here to help.
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