Protect Yourself Against Pregnancy Discrimination Lawsuits
08/20/08
Although pregnancy rates are declining, the number of women filing pregnancy discrimination complaints has risen dramatically, making pregnancy-related claims one of the fastest-growing employment discrimination charges, outpacing sexual harassment and sex discrimination claims.
Even though the birthrate has dropped 9% from 1992 to 2003, the number of claims filed with the Equal Employment Opportunity Commission has risen 39%. Part of the reason for this upswing in lawsuits is due to the fact that 47% of the labor force is now made up of women, many whom are of child-bearing age. Combine that with the fact that women are having children later in life, and you have a huge population of women clamoring for their “rights” in the workplace.
One of the most widely misunderstood myths is that women are entitled to be paid when on maternity leave. But the reality is that pregnant women are entitled to the exact same benefits that other employees receive when temporarily disabled. It is when pregnant women are treated differently, for better or worse, in the workplace, that there are problems.
KNOW THE LAW
It is important for employers to understand the Pregnancy Discrimination Act of 1978, and to have a “maternity leave policy” in place. This act only covers businesses with 15 or more employees, and states that employers cannot refuse to hire a pregnant woman because of her pregnancy, if she can perform the major functions of the job.
Some claims arise from honest mistakes by employers, which is why it is important to know the law states: "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs or disability benefits, as any person who is unable to work.” They are also entitled to all benefits relating to seniority, vacation time and pay increases.
DON’T ASK – DON’T TELL
An employer cannot ask if a woman is pregnant or plans to have children, and the employee is not obligated to inform the employer that she is pregnant. As for maternity leave, the mom-to-be is protected by the Family and Medical Leave Act, which says that a pregnant woman is entitled to take up to 12 weeks off without pay. The federal law applies only for companies with 50 or more employees, although most states have similar laws, often more generous to the employee, covering smaller companies. Women are also able to take time out for adoption, or to care for a sick family member under this law.
Pregnancy issues are difficult for both employer and employee. Employers say there are high costs and productivity losses with pregnancy leaves, while pregnant women counter that they have been denied positions and promotions and unfairly fired. A clear written policy with regard to pregnancy will clarify expectations and help guide you and your employees through this issue.
To assist employers in managing their family and medical leave programs, G.Neil has developed the FMLA Answer Kit, which covers laws related to family medical leave as they apply in all 50 states.
November 2005