Contributor: Amanda A. Farahany
Company: Barrett and Farahany, LLP
Title: Managing Partner at Barrett and Farahany, LLP
When you learn that you are expecting a baby, you likely want to focus on your health and the well-being of your growing family. Unfortunately, your employer may not have the same perspective.
According to the U.S. Equal Employment Opportunity Commission (EEOC), “Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.” Despite laws that protect women from pregnancy discrimination, it is not uncommon. In the fiscal year 2018, for example, the EEOC received 2,790 charges of pregnancy discrimination.
Two laws that protect women from discrimination during and after pregnancy are The Pregnancy Discrimination Act of 1978, which officially declared pregnancy discrimination as a form of sex-based discrimination (and included childbirth and related medical conditions), and the Family and Medical Leave Act (FMLA). The best way to protect yourself is to know which rights you have, and what recourse is available to you if you experience discrimination in the workplace.
One concern employers tend to have about pregnancy is that an employee’s productivity will decrease. And while some employers may find it inconvenient to make adjustments when employees are pregnant — such as modifying duties if necessary, providing a stool if you have to do a lot of standing while working, or allowing time for doctors’ appointments — none of these examples is a just cause for termination under the law. In fact, employers must engage in the interactive process with you about any reasonable accommodation requests you make.
If you become pregnant while you are an employee of a company, here are some of your rights during pregnancy:
- You can’t be fired, disciplined or replaced for being pregnant or having a pregnancy-related condition.
- You can’t be denied a job opportunity or promotion due to your pregnancy.
- You can’t be forced to take leave from work unless you’re unable to perform your job duties.
- Your or your spouse’s employer-sponsored health care plan must provide coverage for pregnancy, childbirth and pregnancy-related condition.
- Under the FMLA, you may be able to take part of your maternity leave before your baby is born.
And here are some rights you have after pregnancy:
- You may be entitled to unpaid maternity leave, depending on the size of your company and company policy.
- Your employer must hold your job open for pregnancy-related leave just as they would for sick or disability leave.
- Your employer is required to maintain your benefits for the entire 12-week FMLA leave-time period.
- If you are eligible for FMLA and use it for your maternity leave, you must be able to return to your job or a position with equivalent pay, benefits, and responsibilities.
- Your employer must provide you with reasonable time to pump breast milk in an area other than a bathroom that is shielded from view.
The FMLA allows for some exceptions related to termination. Whether before, during, or after FMLA leave, you can be terminated from your job if the reason is not related to the leave itself. For example, if your company lays you off based on a performance evaluation conducted prior to your taking leave — or you engage in fraud, insubordination or banned conduct while on leave — your termination would not likely be a violation of the law.
What You Can Do
If you believe you have experienced pregnancy-related discrimination, you may want to speak discreetly with other employees about their experience during and after pregnancy. To prove discrimination, you may have to show that you were treated differently.
It’s also important to keep a written record of what transpired (specific dates, times, locations, people involved, incidents, conversations, etc.). And time is often of the essence. You have 180 days to file a charge with the EEOC (it may be longer in some states). Federal employees have 45 days to contact an EEO counselor.
Discrimination isn’t pleasant to experience, but you don’t have to face it alone. Check with your human resources department, which may have procedures in place to address pregnancy-related issues and be able to offer guidance. Be sure any complaint related to pregnancy discrimination is lodged in writing to your Human Resources department, and keep a copy for yourself – and you should not be terminated for making such a complaint. And consult with an experienced pregnancy discrimination attorney who can offer advice about your specific situation. The law allows for remedy, and you have a right to seek it.
Amanda A. Farahany is a skilled Atlanta employment attorney and litigator who represents individual employees with claims related to sexual harassment, Family Medical Leave Act, discrimination, libel and overtime. She is managing partner at Barrett & Farahany, where she is dedicated to pursuing civil justice for employees, as well as providing consultation and support to management employees and executives. Amanda’s cases are regularly followed by the press. She seeks change for both individuals and society, has been recognized through numerous awards and achievements, and serves in many leadership roles. Additionally, Amanda is an adjunct professor of law at Emory Law School, teaching Advanced Trial Advocacy to third-year students. She can be reached at 404-238-7299 or https://www.justiceatwork.com/.