Tag Archives: pregnancy discrimination

7 Things You Didn’t Know About Pregnancy Discrimination

7 Things You Didn't Know About Pregnancy Discrimination

If you are pregnant and employed, you are protected by the Pregnancy Discrimination Act. This law protects working women who become pregnant by prohibiting discrimination based on pregnancy. Despite this law, some employers still discriminate against pregnant workers. If you believe that you have been the victim of pregnancy discrimination, the attorneys at Swartz Swidler might be able to help you.

It is important for you to understand your rights as a pregnant employee. Here are seven important things that you need to understand about workplace pregnancy discrimination.

1. PDA prohibits discrimination in all employment aspects

You are protected under the PDA in all aspects of employment, This includes hiring, promotions, firing, salary and other benefits. Your employer may not have policies that prevent women from doing certain jobs just because they are pregnant or capable of becoming pregnant. Policies that have a disparate impact on women because of pregnancy or fertility are also prohibited.

2. Covered workplaces

Employers who have 15 or more employees are covered by the PDA. If your workplace has fewer than 15 employees and is in New Jersey, your employer is also covered under the New Jersey Law Against Discrimination.

3. Retaliation is prohibited

Retaliatory employment actions by employers against pregnant workers are also prohibited. If you are fired because you filed a complaint about pregnancy discrimination, you may have grounds to file a suit for retaliatory discharge as well as pregnancy discrimination.

4. Promotions

It is illegal for employers to pass over workers for promotions simply because they are pregnant. This may constitute a violation of the PDA.

5. Pregnancy and maternity leave

If you need to take maternity or pregnancy leave, the PDA mandates that your job must be held open for you just as long as it would be held open for a worker who is on leave because of a disability or illness.

6. Disclosure is not required

You are not required to inform potential employers or your current employer about your pregnancy. Employers are forbidden from refusing to hire workers because they are pregnant as long as they are able to perform the functions of their jobs. They also cannot ask workers if they are pregnant or if they plan to get pregnant in the future.

7. Some organizations can treat pregnant, unmarried women differently

Courts have held that certain religious organizations or companies that work with young people may discriminate against workers who violate the standards against premarital sex. Employers who do this must also treat men who engage in premarital sex in similar fashions. At a majority of companies, pregnancy-related benefits may not be limited to only those employees who are married.

How to complain

If you believe that your rights have been violated under the PDA, you can file a discrimination charge with the Equal Employment Opportunity Commission. It is important for you to act quickly because the deadline for the complaint is normally within 180 days of the discriminatory act.

When you are preparing to file your charge, make certain to write down everything that happened, including the place, date and time of the incident. It is important to do this as soon as possible after it happens. Keep copies of your notes at your home.

If your company has a union representative, talk to him or her. You should also speak to your employer and check your employee handbook. Continue doing a good job at work and keep a record of it. Keep copies of all of your job evaluations along with any memos or letters that document your job performance.

While you are not required to have an attorney to file a discrimination charge, you might benefit from getting legal help. Contact Swartz Swidler to schedule your consultation today.

8 Common Forms Of Employment Discrimination

8 Common Forms Of Employment Discrimination

Employment discrimination may take many forms. Some of the most frequently occurring are outlined below. If you believe that you have been the victim of any of these types of illegal actions, you may want to speak with the employment lawyers at Swartz Swidler.

Discrimination based on age

People who are age 40 and older are protected against age-based employment discrimination under the Age Discrimination in Employment Act, or ADEA. This law protects workers who work at companies employing 20 or more workers, local, federal and state governments, employment agencies and labor organizations. All employment aspects are covered from recruiting through termination, and both employees and applicants are protected.

Discrimination based on disabilities

Title I of the Americans with Disabilities Act, or ADA, protects workers who have disabilities from discrimination. The act defines a disability as a mental or physical impairment substantially limiting at least one major life activity. Employers are required to make reasonable accommodations and are forbidden from asking applicants about whether they have disabilities. Medical screenings are only allowed if all applicants must undergo them.

Discrimination based on national origin

Applicants and employees who have different accents or ethnicities or who come from different places are protected under Title VII of the Civil Rights Act of 1964. Employers may not discriminate against workers or applicants based on their national origins or perceived national origins. They may have English-only rules only if they are needed for the business’s safe or efficient operation.

Discrimination based on pregnancy

Women who are pregnant are protected by the Pregnancy Discrimination Act. Pregnant women must be allowed to do their jobs as long as they are able to do so. Employers are required to offer pregnant women the same benefits and opportunities that the employer would offer to any other workers who have temporary physical conditions.

Discrimination based on color or race

Employers are forbidden from discriminating against applicants or employees because of their color or race under Title VII of the Civil Rights Act. Employers may not discriminate on the basis of a person’s perceived race because of their appearances, relationships or race-related characteristics. The law also forbids work practices that are not directly related to a business’s needs which affect people of other races disproportionately.

Discrimination based on religion

Employees may not be treated in discriminatory manners based on their religious beliefs. This protection falls under Title VII of the Civil Rights Act. Employers may not condition employment on an employee’s participation or lack of participation in religious practices. They must also offer reasonable accommodations to workers for their religious practices.

Discrimination based on sex

Title VII of the Civil Rights Act also forbids workplace discrimination based on a worker’s sex. The Equal Pay Act further mandates that men and women must be paid equally for equal work.

Retaliation

Employers are also forbidden from retaliating against workers who oppose conduct that they believe promotes discrimination. This includes retaliation for filing discrimination complaints, testifying or assisting in a discrimination investigation.

Other types of employment discrimination

There are more extensive protections offered to people under state and local ordinances, including additional classes that are not covered under federal law. If you believe that you have been the victim of one of these types of employment discrimination, you should contact the law firm of Swartz Swidler to schedule your consultation.

6 Employment Discrimination Laws You Need To Understand

As an employee, you may be protected by a number of different anti-discrimination laws. These laws protect certain employees throughout all stages of employment from interviewing and hiring to termination. The Equal Employment Opportunity Commission, or EEOC, is the agency that is tasked with administering federal employment discrimination laws. Here are six employment discrimination laws that you should know.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 applies to all employers that have 15 or more workers. It prohibits discrimination on the basis of protected classes, including race, religion, color, national origin and sex. Employers are not allowed to base the decisions that they make about employment on any of these protected statuses in any aspect of employment. You are protected in hiring, interviewing, promotions, discipline, layoffs, salary, bonuses, benefits, positions and firing.

Your employer must also maintain a work environment that is free from harassment based on one of the protected statuses. Employers must ensure that their employees are not harassed by anyone, including customers, vendors, supervisors, coworkers and third parties.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act that was passed in 1978. This act forbids discriminating against an employee because of childbirth, pregnancy and related medical conditions. It also applies to employers that have 15 or more employees and applies to all types of employment decisions and actions.

Age Discrimination in Employment Act

Passed in 1967, the Age Discrimination in Employment Act forbids employers from discriminating against workers who are age 40 or older. It prohibits discrimination based on a person’s age in all employment aspects and applies to employers who have 20 or more workers.

Employers cannot base their decisions regarding employment on a person’s age or the employer’s beliefs about workers who are older. Employers may not refuse to hire an older worker simply because the employer thinks that the worker will soon retire or will have problems taking direction from younger supervisors. They may also not use phrases such as ‘recent graduate’ or ‘young’ when they advertise positions.

Americans With Disabilities Act

Passed in 1990, the Americans with Disabilities Act forbids discrimination against disabled individuals who are qualified in all aspects of employment. Individuals who are protected under the ADA are those who have physical or mental conditions that substantially impair one or more of their major life activities. People are also protected under the ADA if they are perceived as having an impairment or if they have a history of suffering from one. It applies to employers who have 15 or more workers.

Employers must help qualified individuals who have disabilities. This means that they must provide reasonable accommodations to people who have disabilities so that they can perform their jobs. Employees must make the requests for accommodations, and not all accommodations are considered to be reasonable.

Equal Pay Act

The Equal Pay Act forbids wage discrimination that is based on gender. Your employer is supposed to pay equal wages to women and men whose jobs are substantially similar. This means that your employer is forbidden from paying you less than a worker of the opposite sex when you have equal skill, responsibility and required effort under working conditions that are similar. This act applies to nearly all employers regardless of their size.

Immigration Reform and Control Act

Under the Immigration Reform and Control Act, employers may not discriminate against applicants and employees on the basis of their national origin or citizenship status. This law also forbids employers from knowingly hiring people who are not authorized to work in the U.S. It requires employers to verify your employment authorization and identity prior to hiring you.

Getting help

The state’s laws may also forbid various types of employment discrimination. If you believe that you have been the victim of employment discrimination, you may need legal help. Call the attorneys at Swartz Swidler to schedule your consultation today.

Complaints of Sexual Orientation Discrimination by Federal Employees now Cognizable Under Title VII

On July 15, 2015, the United States Equal Employment Opportunity Commission (“EEOC”), in its role as an appellate tribunal reviewing the disposition by a federal agency of a claim of discrimination, issued a decision in which it held that “allegations of discrimination on the basis of [a complainant’s] sexual orientation state a claim of discrimination on the basis of sex within the meaning of Title VII [of the Civil Rights Act of 1964]. Complainant v. Anthony Foxx, Secretary, Department of Transportation, EEOC Appeal No. 0120133080, slip op. at *14-*15 (July 15, 2015).

The EEOC’s holding is binding on all federal government departments and agencies.  By and through this holding, complaints of sexual orientation discrimination by federal employees are cognizable under Title VII.  The EEOC’s holding is not binding on private employers, but may be used by lawyers advocating in the nation’s federal and state courts for the application of the holding to private employers.

Prior to the EEOC’s holding in Foxx, complaints of sexual orientation discrimination by employees of private employers and state and municipal governments already were cognizable under state law in twenty-three states, including New Jersey, Delaware, and New York.  Such claims are not cognizable under Pennsylvania state law, but are recognized by numerous counties and municipalities within that state, including but not limited to in Philadelphia, Harrisburg, and Pittsburgh.

In Foxx, the complainant, an employee of the Federal Aviation Administration (“FAA”), filed a formal Equal Employment Opportunity (“EEO”) complaint alleging sexual orientation discrimination and retaliation, both in violation of Title VII. Id., slip op. at *1-*2.  Neither the FAA nor the EEOC reached the merits of the complainant’s claim.  The FAA held, among other things, that the EEOC had no jurisdiction over the complainant’s claim of sexual orientation discrimination. Id., slip op. at *2-*3.

The EEOC reversed the FAA’s holding that it had no jurisdiction over the complainant’s claim of sexual orientation discrimination, noting that it “appl[ies] the words of the statute Congress has charged us with enforcing.” Id., slip op. at *13.  It held that

Title VII’s prohibition of sex discrimination means that employers may not rel[y] upon sex-based considerations or take gender into account when making employment decisions.  This applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions.  It is not.  Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has relied on sex-based considerations or take[n]  into account when taking the challenged employment action.

In the case before us, we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision[.] . . . The Complainant, therefore, has stated a claim of sex discrimination.  Indeed, we conclude that sexual orientation is inherently a “sex-based consideration, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.  A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.  “Sexual orientation” as a concept cannot be defined or understood without reference to sex.  A man is referred to as “gay” if he is physically and/or emotionally attracted to other men.  A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women.  Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite sex.  It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.

Id., slip op. at *5-*6 (citations, internal quotations and footnotes omitted).

The EEOC further held that “Sexual orientation discrimination is sex discrimination”, Id., slip op. at *6, because (1) “it necessarily entails treating an employee less favorably because of the employee’s sex”, Ibid.; see also Id., slip op. at *6-*7, (2) “it is associational discrimination on the basis of sex.  That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex”, Id., slip op. at *8, see also Id., slip op. at *8-*9, and (3) “it necessarily involves discrimination based on gender stereotypes.” Id., slip op. at *9, see also Id., slip op. at *9-*11.  It concluded by acknowledging that

Congress may not have envisioned the application of Title VII to these situations.  But as a unanimous [Supreme] Court stated in Oncale v. Sundowner Offshore Services, Inc., “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U.S. 75, 79, 78-80 (1998) (holding that same-sex harassment is actionable under Title VII).  Interpreting the sex discrimination prohibition of Title VII to exclude coverage of lesbian, gay or bisexual individuals who have experienced discrimination on the basis of sex inserts a limitation into the text that Congress has not included.”

Id., slip op. at *13 (footnote omitted).

The EEOC issued its decision in Foxx less than three weeks after the Supreme Court issued its decision in Obergefell et al. vs. Hodges, Director, Ohio Department of Health, et al., in which the Court held that same sex couples have a right to marry that is secured by the Fourteenth Amendment to the United States Constitution.  Our analysis of the Obergefell decision, with a link to the Supreme Court’s decision, may be found here.

We at Swartz Swidler applaud the EEOC’s decision in Foxx.  If you believe that you have been discriminated against or subjected to a hostile work environment because of your sexual orientation, please contact one of our employment attorneys today for a detailed, free legal consultation.

The Foxx decision may be found here.

Supreme Court clarifies when employers must accommodate pregnant employees

Pregnant Employees must be granted reasonable accommodations when the employer has provided similar accommodations to other individuals with similar limitations.

The United States Supreme Court ruling is a victory for Peggy Young, a former driver for UPS who claimed the package company violated her rights under the Pregnancy Discrimination Act (PDA). She will now have a chance to prove her case in a lower court where she had previously lost.  The ruling further provides support for women who are facing discrimination due to pregnancy.

When Young became pregnant in 2006, Peggy Young’s doctor told her not to lift anything heavier than 20 pounds for the first 20 weeks of her pregnancy. When she requested a reasonable accommodation from her boss, she was denied her request for light duty. Instead, UPS placed her on unpaid leave and cancelled her health benefits. She was told that UPS only provided accommodations to three categories of workers: those who had been injured on the job, those who lost their Department of Transportation certifications, and those who have a disability as defined by the Americans with Disability Act. Because pregnancy is not a generally a disability under federal law, UPS refused to provide the pregnant worker any accommodation. She sued UPS for discrimination.

The Pregnancy Discrimination Act requires employers to accommodate pregnant women who have work restrictions. While not in issue in this case, the New Jersey Law Against Discrimination also requires accommodations for pregnant employees.

Young claimed that UPS’s failure to accommodate pregnant women violated the Pregnancy Discrimination Act of 1978, a federal law providing that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same” as other employees who are “similar in their ability or inability to work”. Young argued that because UPS did offer light accommodation to some employees, it must offer her the same accommodation.

UPS maintained that the company’s policy complied with the Pregnancy Discrimination Act (PDA) and that it was a pregnancy neutral policy.

Young lost the case in federal district court which ruled in favor of UPS on a summary judgment motion. Then she appealed to the United States Court of Appeals for the Fourth Circuit which affirmed the previous decision, saying that UPS did not violate the Pregnancy Discrimination Action because its light duty policy is pregnancy-blind: it treats pregnant and non-pregnant workers the same and accommodates only those who fall within the three categories of workers identified.

After losing her appeal, Young asked the Supreme Court to decide whether UPS acted unlawfully. The question was whether the Pregnancy Discrimination Act requires companies to offer light-duty options to pregnant workers if they already do so for non-pregnant workers in who are “similar in their ability to or inability to work.”

According to the Court, a middle ground approach was necessary. The problem with Young’s approach was that it argued that the statue granted pregnant workers a “most-favored-nation” status. The Court agreed with UPS in: “ We doubt that Congress intended (in passing the Pregnancy Discrimination Act) to grant pregnant workers an unconditional most-favored-nation status.” So a pregnant worker is not necessarily entitled to the same accommodations as an individual who is disabled under the Americans with Disabilities Act.

The Court further held that the EEOC position in this issue is ambiguous and the Court therefore did not rely upon it in reaching its determination. Before Congress passed the Pregnancy Discrimination Act, the EEOC issued guidance that “disabilities caused or contributed to by pregnancy….are, for all job-related purposes, temporary disabilities” and that “the availability of….benefits and privileges…shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities”. After the Pregnancy Discrimination Act was passed, the EEOC issued further guidance, stating that “[i]f other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function.” This post-Act guidance, according to the Court, simply tells employers to treat pregnancy related disabilities like nonpregnancy-related disabilities, without clarifying how that instruction should be implemented when an employer does not treat all nonpregnancy related disabilities alike. In July 2014 the EEOC promulgated an additional guideline apparently designed to address that ambiguity. That guideline says that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job). However, according to the Court, first “the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent” and second, “that position is inconsistent with positions for which the Government has long advocated.”

The Court vacated the 2013 ruling by the 4th U.S. Circuit Court of Appeals. The Court held that a plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. Additionally, a plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. That means that a pregnant worker could prevail in a claim of pregnancy discrimination if she can show that the employer accommodates most non-pregnant employees who have a similar restriction to that of the pregnant worker.

The Court also found that Young produced evidence that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions which suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong to create an undue burden in providing the accommodation. Importantly, an employer may not defeat a claim by simply arguing that there is a cost associated with providing the accommodation.

You can read this Supreme’s Court decision here: http://www.supremecourt.gov/opinions/14pdf/12-1226_k5fl.pdf

Meanwhile states and cities are enacting their own laws requiring employers to accommodate pregnant workers. In 2014, New Jersey passed S2995/A4486. Employers must provide reasonable accommodations for an employee’s needs related to pregnancy, childbirth, or related medical conditions, including recovery from childbirth, absent undue hardship. The New Jersey Law against Discrimination and the Pennsylvania Human Relations Act also protect individuals from pregnancy discrimination.  The City of Philadelphia passed an ordinance in 2014 that requires employers to provide reasonable accommodations to employees for needs related to pregnancy, childbirth, or a related medical condition, so long as such accommodations will not cause an undue hardship to the employer. Phila. Code § 9-1128.

If you are pregnant and you have questions about your rights at your workplace, please call us for a free and confidential consultation at (856) 685-7420

Legislature Considering Bill to Amend the New Jersey Law Against Discrimination to Expand the Rights of Pregnant Employees

On September 30, 2013, New Jersey (NJ) Senate proposed legislation requiring employers to make reasonable accommodation available for pregnancy-related needs when requested by the employees with the advice of their physician. Currently, under the New Jersey Law Against Discrimination (NJ LAD), there is no requirement that preferential leave be given to a pregnant employee, unless complications related to the pregnancy rise to the level of a disability under New Jersey discrimination law.