Laws protecting female workers from discrimination have succeeded, more women are entering and remaining in the workforce in more diverse occupations than ever before. With expanded participation has come the need to adapt the workplace to pregnant and breast-feeding workers. It is estimated that 75 percent of women entering the workforce will be pregnant during their employment, and 75 percent of new mothers choose to breastfeed. Discrimination claims result when pregnancy-related needs conflict with working conditions and benefits.
Enacted in 1978, the Pregnancy Discrimination Act banned employment discrimination on the basis of pregnancy, childbirth or related medical conditions. More than 35 years and several laws later, we’re still grappling with how to apply that edict to the realities of today’s workplace. As more women juggle pregnancy and childbirth-related issues with the demands of their work, employers must navigate some highly personal personnel issues.
Most employers are aware that the Equal Employment Opportunity Commission (EEOC) defines “pregnancy discrimination” as “treating a woman unfavorably because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.” Employers can’t discriminate on the basis of pregnancy by refusing to hire, train, promote or provide equal pay, insurance or other benefits because of an employee’s pregnancy. Nor can an employer discriminate against a pregnant worker or applicant because of customer, co-worker or client prejudice.
In 2008, Congress amended the Americans with Disabilities Act (ADA) by extending legal protection to temporary impairments of “major life activities” in the ADA Amendments Act. Although pregnancy is not a “disability,” temporary medical complications resulting from pregnancy, such as severe nausea, gestational diabetes, sciatica, post-partum depression, etc., may constitute “disabilities” within the meaning of the ADA. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the EEOC expects the employer to treat her in the same way as other temporarily disabled employees. If an employer provides light duty, alternative assignments, disability or other leave to temporarily disabled employees, the same benefits must be afforded workers temporarily disabled by pregnancy.
Charges of discrimination result when seemingly neutral policies adversely impact a pregnant worker. An employee who loses sales commissions because her accounts were reassigned temporarily during her pregnancy leave may allege discrimination. A worker disciplined for tardiness due to pregnancy-related nausea also may claim discrimination. If the employer has no effective process for addressing employee concerns before they become administrative charges, the continued employment relationship may be threatened.
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