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III. Federal Law - Pregnancy Discrimination Act
The Basics
If you work for a company with 15 or more employees (including state and local governments), you are protected by the federal Pregnancy Discrimination Act (PDA). The Pregnancy Disability Act is actually an amendment to Title VII of the Civil Rights Act of 1964, passed in 1978. Under Title VII of the Civil Rights Act of 1964, discrimination on the basis of race, color, religion, sex, or national origin is prohibited in an employment context.
The law now also prohibits discrimination on the basis of pregnancy, because such discrimination falls within the category of unlawful gender discrimination. The Pregnancy Disability Act protects women from being fired, being denied a job, or being passed over for a promotion merely because they are pregnant. Additionally, the law provides that a pregnant woman generally cannot be forced to go on leave as long as she is physically able to work.
This means that an employer may not fire an employee simply because she is pregnant. An employer cannot lawfully refuse to hire a job applicant based solely on the fact that she is pregnant as long as she is able to perform the major functions of the job. Further, an employer cannot refuse to hire her because of prejudices of co-workers or clients against pregnant workers.
Pregnant women must be treated in the same manner as any other employee with temporary disabilities for purposes of leave as well as for participation in employee benefits. If other employees who take disability leave are entitled to get their jobs back when they can return to work, so are women who are unable to work because of pregnancy-related conditions or complications.
If you work for a company with 15 or more employees (including state and local governments), you are protected by the federal Pregnancy Discrimination Act (PDA). The Pregnancy Disability Act is actually an amendment to Title VII of the Civil Rights Act of 1964, passed in 1978. Under Title VII of the Civil Rights Act of 1964, discrimination on the basis of race, color, religion, sex, or national origin is prohibited in an employment context.
The law now also prohibits discrimination on the basis of pregnancy, because such discrimination falls within the category of unlawful gender discrimination. The Pregnancy Disability Act protects women from being fired, being denied a job, or being passed over for a promotion merely because they are pregnant. Additionally, the law provides that a pregnant woman generally cannot be forced to go on leave as long as she is physically able to work.
This means that an employer may not fire an employee simply because she is pregnant. An employer cannot lawfully refuse to hire a job applicant based solely on the fact that she is pregnant as long as she is able to perform the major functions of the job. Further, an employer cannot refuse to hire her because of prejudices of co-workers or clients against pregnant workers.
Pregnant women must be treated in the same manner as any other employee with temporary disabilities for purposes of leave as well as for participation in employee benefits. If other employees who take disability leave are entitled to get their jobs back when they can return to work, so are women who are unable to work because of pregnancy-related conditions or complications.
An employer cannot use unique procedures to determine a pregnant employee’s ability to work. The employer can use any established procedure used to determine all other employees’ ability to work.
For example, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer can require pregnant employees to do the same. However, the employer cannot require such a statement if the employer doesn’t require it from other employees seeking medical leave.
If an employee is temporarily unable to perform her job due to her pregnancy or some pregnancy-related condition, her employer must consider the situation just as it would consider any other temporarily disabled employee’s inability to work.
If the employer would usually offer modified tasks, alternative assignments, disability leave or some other type of leave, even without pay, the employer must also offer these alternatives to the pregnant employee.
If an employer does not offer light duty-type substitutions to any employees or to any employees not injured on the job, it can legally force pregnant employees whose doctors forbid certain physical activity which would preclude them from performing their regular job requirements to go on unpaid leave, or even fire them for their temporary inability to do their job.
In most situations, pregnant women who denied light duty under such a policy will only be able to successfully challenge the policy if they can show it was adopted specifically in order to disadvantage them. On the flip side of the disability situation, the Pregnancy Disability Act requires that pregnant employees be allowed to work as long as they are able to perform their jobs.
If an employee has had to take some time off work due to a pregnancy related condition and then returns prior to giving birth, her employer cannot force her to remain on leave until the baby’s birth.
Under the provisions of the Pregnancy Disability Act, an employer cannot enforce company policy which prohibits an employee from returning to work for a predetermined length of time after childbirth.
Employers must hold a pregnant employee’s job open the same length of time that positions are held open for other employees taking sick leave or disability leave.
Health Insurance
Any health insurance plan provided by an employer must cover expenses for pregnancy and pregnancy-related conditions on the same basis as it covers costs for other medical conditions.
This is true whether payment is on a fixed basis or a percentage of reasonable and customary charge basis. No additional, increased or larger deductible can be imposed for charges related to pregnancy or for an employee who is of child-bearing age and therefore capable of becoming pregnant. One exception to this general rule though: health insurance coverage for expenses related to an abortion is not required under the Pregnancy Disability Act, unless the life of the mother is endangered.
Employers must provide the same level of health benefits for spouses of male employees (i.e. spouses who are potentially capable of becoming pregnant) as they do for spouses of female employees.
Other Employment Benefits
Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy related conditions if benefits are provided for other medical conditions.
If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy related conditions.
Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.
Can An Employer Treat Pregnant Employees Differently in Any Manner?
The Pregnancy Discrimination Act does not prohibit policies or practices that favor pregnant women. Employers should consider their obligations under the Pregnancy Discrimination Act as a floor, not a ceiling.
Many employers provide benefits for temporarily-disabled employees - leave, insurance, and so on. Under the Pregnancy Disability Act, pregnant employees are guaranteed access to the same benefits. The only limit is that benefits for pregnant women must be drawn to cover the actual period of physical disability - six-to-eight weeks for normal childbirth, for example. The guarantee of equal treatment is the “floor.”
The “not a ceiling” part of the Pregnancy Disability Actmeans that companies are free to increase their standard maternity leave beyond the standard sick or medical leave. This would actually provide a special accommodation to a pregnant woman/new mother which is not available to other temporarily disabled employees.
PDA does not require an employer to give any leave to a pregnant woman, either before or after childbirth. If an employer has no policy allowing leave for temporary disability, a pregnant employee could not use the Pregnancy Disability Actto demand maternity leave. She could also be lawfully fired for missing work.
The Family and Medical Leave Act (discussed in detail below) does require mandatory unpaid medical leave for employees of large employers (over 50 employees), but many mothers-to-be work for smaller employers or are otherwise ineligible for FMLA leave.
Pregnancy Disability Act and FMLA
In addition to the protections given to you by Pregnancy Disability Act, you may also have additional rights under the Family and Medical Leave Act (FMLA). FMLA is covered in great detail later on in this book.
It will be very important for you to consider whether or not you qualify for the benefits of FMLA, which generally gives you (if you are a qualified employee of a covered employer) the right to take up to 12 weeks of unpaid leave from your job to care for a new baby. When you return to work after FMLA leave, you have the right to be restored to the same job that you left or a reasonably equivalent job.
For example, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer can require pregnant employees to do the same. However, the employer cannot require such a statement if the employer doesn’t require it from other employees seeking medical leave.
If an employee is temporarily unable to perform her job due to her pregnancy or some pregnancy-related condition, her employer must consider the situation just as it would consider any other temporarily disabled employee’s inability to work.
If the employer would usually offer modified tasks, alternative assignments, disability leave or some other type of leave, even without pay, the employer must also offer these alternatives to the pregnant employee.
If an employer does not offer light duty-type substitutions to any employees or to any employees not injured on the job, it can legally force pregnant employees whose doctors forbid certain physical activity which would preclude them from performing their regular job requirements to go on unpaid leave, or even fire them for their temporary inability to do their job.
In most situations, pregnant women who denied light duty under such a policy will only be able to successfully challenge the policy if they can show it was adopted specifically in order to disadvantage them. On the flip side of the disability situation, the Pregnancy Disability Act requires that pregnant employees be allowed to work as long as they are able to perform their jobs.
If an employee has had to take some time off work due to a pregnancy related condition and then returns prior to giving birth, her employer cannot force her to remain on leave until the baby’s birth.
Under the provisions of the Pregnancy Disability Act, an employer cannot enforce company policy which prohibits an employee from returning to work for a predetermined length of time after childbirth.
Employers must hold a pregnant employee’s job open the same length of time that positions are held open for other employees taking sick leave or disability leave.
Health Insurance
Any health insurance plan provided by an employer must cover expenses for pregnancy and pregnancy-related conditions on the same basis as it covers costs for other medical conditions.
This is true whether payment is on a fixed basis or a percentage of reasonable and customary charge basis. No additional, increased or larger deductible can be imposed for charges related to pregnancy or for an employee who is of child-bearing age and therefore capable of becoming pregnant. One exception to this general rule though: health insurance coverage for expenses related to an abortion is not required under the Pregnancy Disability Act, unless the life of the mother is endangered.
Employers must provide the same level of health benefits for spouses of male employees (i.e. spouses who are potentially capable of becoming pregnant) as they do for spouses of female employees.
Other Employment Benefits
Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy related conditions if benefits are provided for other medical conditions.
If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy related conditions.
Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.
Can An Employer Treat Pregnant Employees Differently in Any Manner?
The Pregnancy Discrimination Act does not prohibit policies or practices that favor pregnant women. Employers should consider their obligations under the Pregnancy Discrimination Act as a floor, not a ceiling.
Many employers provide benefits for temporarily-disabled employees - leave, insurance, and so on. Under the Pregnancy Disability Act, pregnant employees are guaranteed access to the same benefits. The only limit is that benefits for pregnant women must be drawn to cover the actual period of physical disability - six-to-eight weeks for normal childbirth, for example. The guarantee of equal treatment is the “floor.”
The “not a ceiling” part of the Pregnancy Disability Actmeans that companies are free to increase their standard maternity leave beyond the standard sick or medical leave. This would actually provide a special accommodation to a pregnant woman/new mother which is not available to other temporarily disabled employees.
PDA does not require an employer to give any leave to a pregnant woman, either before or after childbirth. If an employer has no policy allowing leave for temporary disability, a pregnant employee could not use the Pregnancy Disability Actto demand maternity leave. She could also be lawfully fired for missing work.
The Family and Medical Leave Act (discussed in detail below) does require mandatory unpaid medical leave for employees of large employers (over 50 employees), but many mothers-to-be work for smaller employers or are otherwise ineligible for FMLA leave.
Pregnancy Disability Act and FMLA
In addition to the protections given to you by Pregnancy Disability Act, you may also have additional rights under the Family and Medical Leave Act (FMLA). FMLA is covered in great detail later on in this book.
It will be very important for you to consider whether or not you qualify for the benefits of FMLA, which generally gives you (if you are a qualified employee of a covered employer) the right to take up to 12 weeks of unpaid leave from your job to care for a new baby. When you return to work after FMLA leave, you have the right to be restored to the same job that you left or a reasonably equivalent job.
There are some key differences between the Pregnancy Disability Act and FMLA as far as eligibility requirements.
FMLA requires that you, the employee, meet three requirements: you worked for the employer for 12 months (although not consecutive), you worked for 1,250 hours prior to taking the leave, and you worked for an employer with at least 50 employees.
Under the provisions of the Pregnancy Disability Act, an employee is protected regardless of how long she has been on the job. An employer cannot deny pregnancy leave during the first year of a pregnant woman’s employment and still provide leave for other medical conditions, without violating the Pregnancy Disability Act.
Enforcement
Many women are reportedly fired or passed over for a promotion after they announce their pregnancy. The Equal Employment Opportunities Commission (EEOC) received almost 5,000 charges of pregnancy-related discrimination in 2006 (source: Pregnancy Discrimination. U.S. Equal Employment Opportunity Commission).
If you feel that your company is not following the Pregnancy Disability Act, you can file a charge with the EEOC. Go to the EEOC website and follow the directions for Filing a Charge of Employment Discrimination
It is also unlawful for an employer to retaliate against an employee for opposing employment practices that discriminate based on pregnancy, for filing a discrimination charge with the EEOC (Equal Employment Opportunity Commission), or for participating in an investigation or other proceeding under Title VII (the Civil Rights Act).
Retaliation complaints must be filed with the EEOC within 180 days of the alleged violation. If you feel that you have been discriminated against, contact the Equal Employment Opportunity Commission or local employment office.
Proceed to - Family Medical Leave Act (FMLA)
FMLA requires that you, the employee, meet three requirements: you worked for the employer for 12 months (although not consecutive), you worked for 1,250 hours prior to taking the leave, and you worked for an employer with at least 50 employees.
Under the provisions of the Pregnancy Disability Act, an employee is protected regardless of how long she has been on the job. An employer cannot deny pregnancy leave during the first year of a pregnant woman’s employment and still provide leave for other medical conditions, without violating the Pregnancy Disability Act.
Enforcement
Many women are reportedly fired or passed over for a promotion after they announce their pregnancy. The Equal Employment Opportunities Commission (EEOC) received almost 5,000 charges of pregnancy-related discrimination in 2006 (source: Pregnancy Discrimination. U.S. Equal Employment Opportunity Commission).
If you feel that your company is not following the Pregnancy Disability Act, you can file a charge with the EEOC. Go to the EEOC website and follow the directions for Filing a Charge of Employment Discrimination
It is also unlawful for an employer to retaliate against an employee for opposing employment practices that discriminate based on pregnancy, for filing a discrimination charge with the EEOC (Equal Employment Opportunity Commission), or for participating in an investigation or other proceeding under Title VII (the Civil Rights Act).
Retaliation complaints must be filed with the EEOC within 180 days of the alleged violation. If you feel that you have been discriminated against, contact the Equal Employment Opportunity Commission or local employment office.
Proceed to - Family Medical Leave Act (FMLA)
