Pregnant women in New Jersey and Pennsylvania are protected in the workplace by the Pregnancy Discrimination Act of 1978. The law covers employers with 15 or more employees and prohibits workplace discrimination based on pregnancy, pregnancy-related medical conditions, or childbirth. While the PDA has been the law for more than 40 years, some employers continue to discriminate against pregnant employees in the workplace. In 2020 alone, the Equal Employment Opportunity Commission received 2,698 pregnancy discrimination charges and resolved 2,898 cases.
Because pregnancy discrimination in the workplace continues to be a common problem, it is important for you to understand how it can occur. The employment discrimination lawyers at Swartz Swidler have written this list of examples of how pregnancy discrimination might happen in the workplace.
How pregnancy discrimination might happen at work
There are multiple ways an employer might discriminate against a pregnant worker or someone who has recently given birth. Some of these are detailed below.
1. Firing a pregnant employee based on her pregnancy
Some employers react to an employee’s pregnancy by terminating her from her position. This type of blatant discrimination might happen because the supervisor might think that she will be able to perform the tasks of her job. Even if an employer thinks that a woman should be removed from her job for her safety based on her pregnancy, it is still illegal. A pregnant worker’s safety while performing her job duties is up to the woman’s doctor and her rather than her employer.
2. Harassment based on pregnancy
Pregnant women who are the targets of ongoing harassment that is pervasive and frequent based on their pregnancy status might be the victims of unlawful hostile work environment harassment. This includes offensive jokes, threats, insults, assaults, or intimidation that are pervasive enough to interfere with the woman’s ability to perform the tasks of her job. The harasser can be a co-worker, supervisor, client, or customer. Pregnancy harassment is illegal when it is pervasive enough to create a hostile work environment.
3. Making adverse hiring decisions based on pregnancy
The prohibition against pregnancy discrimination covers all aspects of employment, including hiring decisions. Employers are prohibited from making adverse hiring decisions based on the pregnancy status of their applicants. Some employers claim that they want to hire people who will be able to continue working without taking time off from work, but that type of behavior is illegal. Employers are prohibited from making decisions based on their stereotypes or biases about how applicants might work during their pregnancies or after they give birth.
4. Refusing to provide reasonable accommodations
Pregnant employees who have complications or pregnancy-related impairments must be accommodated in the same way as other employees who have temporary medical conditions or disabilities. For example, if an employee who is injured in a car accident is allowed to take time off from work or given a light-duty assignment during the healing process, a pregnant employee must also be given reasonable accommodations for her complications or temporary condition. However, simply being pregnant is not enough to require an employer to provide accommodations. Employers can also ask for medical certification from the pregnant employee’s doctor to support her request for accommodations. For example, a pregnant employee might need her employer to change her work schedule if she suffers from severe morning sickness. An employee might also need more frequent bathroom breaks or time off from work for bedrest if prescribed by her doctor.
5. Discriminating against employees who pump breast milk
Employers are required to provide new mothers a safe and private place to pump breast milk at work other than a bathroom under the Affordable Care Act. Employers must also give women reasonable breaks to pump breast milk. However, employers with fewer than 50 employees might not have to offer this to new mothers when providing breaks or private spaces would create an undue hardship.
6. Forcing pregnant women to change jobs or take time off or refusing to consider them for promotions
Employers cannot force pregnant employees to change jobs or to take time off from work. As long as a pregnant employee can perform her job duties, she must be allowed to continue. Employers also are prohibited from refusing to promote pregnant employees based on their pregnancies.
7. Refusing pregnancy-related medical leave
Employers must allow pregnant workers to take leave for pregnancy-related conditions in the same way that they allow other employees who have similar abilities or inabilities to take medical leave. For example, employers are prohibited from taking the following actions:
- Firing pregnant employees for taking leave covered by the employer’s sick leave policy
- Firing pregnant employees for taking FMLA leave for childbirth
- Requiring pregnant employees to use up their sick leave first before taking other types of leave when other employees are not required to do so
- Preventing pregnant employees who are temporarily disabled from taking unpaid leave when other employees are allowed to do so
Employers must also hold the pregnant woman’s job open for the same time that they would for others who take temporary disability or sick leave. The FMLA also provides that covered employers must allow pregnant employees to return to their jobs or to jobs that offer similar terms, conditions, benefits, and pay.
8. Retaliation against employees for complaining about pregnancy discrimination
Employers are prohibited from retaliating against employees for engaging in protected activities, including filing complaints about pregnancy discrimination. Employers may not fire, demote, harass, or take other adverse employment actions based on an employee filing a complaint, participating in an investigation or proceeding, or opposing pregnancy discrimination in the workplace. Employers will often try to claim that they took the adverse action because of a nondiscriminatory purpose. For example, an employer that fires a pregnant employee because the supervisor thinks that she might take too much time off from work after giving birth might claim that the worker was instead fired for performance issues.
Documenting all of the conversations you have with your co-workers and employer and any actions taken against you after you complain about pregnancy discrimination is important. To prove that you were the victim of workplace pregnancy discrimination and retaliation, you will need to present evidence showing your employer’s discriminatory purpose and that the reasons your employer claims are pretextual.
Talk to a New Jersey pregnancy discrimination lawyer at Swartz Swidler
If you believe that your employer discriminated against you based on your pregnancy, childbirth, or pregnancy-related conditions, you should talk to a New Jersey pregnancy discrimination lawyer at Swartz Swidler. Call us at (856) 685-7420 to request a free consultation.