Examples of Pregnancy Discrimination at Work and How to Fight It

Thanks to the #MeToo movement and similar social movements, awareness and discussions surrounding issues of gender equality in the workplace have increased in recent years.

When speaking on the topic of general equality at work and the various types of discrimination that women, in particular, face in today’s society, pregnancy discrimination is one of the big issues that is often underrepresented in these types of discussions. But do you know the examples of pregnancy discrimination, what it is, and how it can affect your business?

Women account for over 50% of the U.S. workforce, and according to The American Community Survey (ACS), working mothers account for 32% of all working women.

Additionally, recent data shows that prenatal care, pregnancy, and caretaking affect many of the work-related decisions that working mothers have to make during the course of their careers.

It should then be clear to employers who want to build a well-balanced and successful business why reducing potential stressors and maintaining working mothers’ motivation to stay employed during and after pregnancy is so vital.

Pregnancy is the most common reason why mothers take unpaid leave from work. Many women in the workforce cannot rely on their employers to provide paid time off for the birth or adoption of a child. Instead, new parents have to fuse a combination of vacation days, sick leave, personal days, and short-term disability to properly tend to their families and the needs of their children.

The U.S. is the only industrialized country lacking a national paid leave mandate. Additionally, the entirety of a business’s paid leave policy is at the discretion of the employers, with laws related to paid pregnancy leave differing from state to state. Maternity or parental leave is usually administered through pre-existing temporary disability insurance programs, even though pregnancy is not a disability.

Research has shown that the long-term effects of such government programs are numerous and mostly negative. A 2020 study of pregnant workers discovered a connection between the health of mothers and babies and perceived pregnancy-related discrimination.

All this means that without federal policies in place, managers and employers are all in a position to provide support to pregnant workers more so than legislators.

That’s why understanding pregnancy discrimination is so important for companies that are dedicated to ensuring that women feel confident that they can get a job, keep a job, and qualify for promotions despite choosing to start a family.

Examples of Pregnancy Discrimination and What Is It?

Pregnancy discrimination includes all forms of unfavorable treatment during all phases of the employment process. For instance, employers aren’t allowed to ask their employees whether they plan on having a family. Additionally, workers and job seekers are not obliged to disclose any such information at any time.

There are three main types of pregnancy-based discrimination:

• Discrimination during the hiring process
• Discrimination during pregnancy
• Discrimination upon returning to work

Unfavorable treatment of workers because of pregnancy could entail anything from firing a pregnant worker, retaliating against them, or preventing them from taking time off. If an employee is treated worse than other employees because they are pregnant or because they have requested paid or unpaid leave because of their pregnancy, this type of behavior also counts as discrimination.

Discrimination During the Hiring Process

Hiring managers cannot inquire about a person’s pregnancy status. According to the Pregnancy Discrimination Act of 1978, it’s also illegal to ask whether or not they plan on having children in the future. Even if they are visibly pregnant during a job interview, the hiring manager or would-be employer cannot take this into account when making a hiring decision.

Pregnancy, childbirth, or pregnancy-related medical issues can’t legally affect a person’s search for employment.

However, employees can ask about the company’s insurance coverage, employee benefits packages, and maternity leave policies. In some states, it would also be a good idea to ask about the company’s short-term disability coverage since it can apply to pregnancy.

Discrimination of Workers During Pregnancy

Employees are not required to inform their employers of their pregnancy unless they require pregnancy-related benefits, including special accommodations or maternity leave.

In this case, they need to disclose their pregnancy and, in some cases, provide a doctor’s note as proof of their condition.

Reasonable Accommodation

If a worker is experiencing a high-risk pregnancy or is unable to perform certain tasks due to pregnancy-related medical issues, the employer is required by law to provide reasonable accommodation. The employer is obligated to provide a pregnant worker with the same benefits they give to workers with disabilities or illnesses.

For example, if a pregnant woman must stand during work hours to perform her tasks, she can request a chair to continue working if standing becomes difficult. Pregnant workers can also request to be exempt from dangerous activities such as heavy lifting and exposure to hazardous materials.

Maternity Leave (or Parental Leave)

In most states, maternity leave is short-term disability leave, the same type of leave provided to all other workers with disabilities. Maternal leave can be paid or unpaid, depending on the state and the pregnant employee’s eligibility under the Federal Family and Medical Leave Act (FMLA).

Under the FMLA, employers are required to maintain health insurance benefits for pregnant workers. This includes coverage for pregnancy, childbirth, or any additional pregnancy-related medical issues.

Pregnancy-Related Harassment

Pregnancy-related harassment is defined as any kind of recurring or severe negative treatment of a woman because of her pregnancy, childbirth, or pregnancy-related health condition.

Employers, managers, supervisors, colleagues, even clients or customers, can all be considered harassers. Under the Pregnancy Discrimination Act, any such behavior is illegal.

Pregnancy Discrimination Upon Returning to Work

Employers cannot change the job/role of the pregnant employee. The only exception would be promotions or positions that would be more manageable but come with equal or higher pay than the previous position.

Federal and State Legislation

In order to better understand how to combat pregnancy discrimination, let’s breakdown the legal framework around the issue. There are five significant legal acts that determine the rights of pregnant workers and their employers’ obligations.

• Federal Family and Medical Leave Act (FMLA)

This labor law was not meant for pregnant persons per se, but it still provides unpaid leave for workers with qualified medical and family issues.

For Employers: The FMLA applies to public and private employers, provided they are covered under this law. The company in question has to have 50+ employees to be eligible for coverage. Employers are allowed to force employees to use up their paid time off while on FMLA.

For Employees: Employees are eligible for FMLA unpaid leave after a year on the job and 1,250 hours of work. Employees can use the FMLA benefits if their own health is at risk (for example, during prenatal care), or if they need to take care of a child. Both parents have the same rights under FMLA. Parents can take leave due to prenatal care, child care, or a temporary incapacity due to pregnancy.

It’s important to note that FMLA defines parents as biological, adoptive, step, and foster caregivers, not including parents-in-law.

• The Federal Employee Paid Leave Act

The Federal Employee Paid Leave Act applies to some federal workers whom FMLA also covers. This law took effect on October 1, 2020, and allows for 12 weeks of paid parental leave. The law applies to both mothers and fathers, with some changes if they work in the same company. Bear in mind that parents can use up both the FMLA and the Paid Family leave simultaneously, provided that the employer is covered for both.

• The Pregnancy Disability Leave Act

Only available in California, this act provides unpaid job-protected leave in any company with over five employees. The act covers any conditions women might have due to their pregnancies that make them unable to perform their duties at work. Even though pregnancy is not a disability, pregnant workers are financed from the disability budget. Up to four months of job-protected leave is available under the act.

Additionally, the worker can require and get PDL benefits immediately after being hired. All they need is a doctor’s note if the employer asks for one. Protected leave means that the employer is not allowed to fire the worker, retaliate against them, stop them from taking leave, or treat the pregnant person differently than they treat other employees because they took leave. You can enjoy PDL benefits simultaneously with FMLA.

• The Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) does not allow for discrimination against pregnant workers or job seekers. The discrimination ban applies to all aspects of employment. This includes firing or demoting the worker, passing them over for promotions, forcing them to work unfavorable hours or unfavorable shifts, and failing to provide proper training. It also includes fringe benefits. It is also illegal for both clients and people you work with pregnant workers to treat them worse than other employees because of their pregnancy. Harassing comments or behaviors severe or frequent enough to create a hostile work environment are not allowed by law.

Practical Steps for Fighting Pregnancy-Related Discrimination

As we already mentioned, employers have the most control when it comes to pregnancy-related rights and the policies that they offer to their employees regarding pregnancy. Employers, managers, and supervisors have the power to make it easier for workers who are parents-to-be or new parents to achieve a better work-life balance.

Establishing a good relationship with pregnant workers, being supportive of them, and being mindful of pregnancy discrimination issues are also steps that need to be taken by any company that wants to establish a positive work culture that will lead to loyalty, improved retention, and increased productivity.

Here are some tips on how managers and supervisors can help pregnant workers deal with the stress that comes with the condition:

• Offer flexible work schedules
• Inform employees of their rights and the benefits they can receive during pregnancy and upon returning to work
• Provide pregnancy accommodation, including days off for prenatal care and doctor’s appointments
• Make mothers feel comfortable breastfeeding in the workplace
• Create clear policies for the prevention of pregnancy discrimination at work

Most of all, it’s important for employers to encourage pregnant employees to voice their concerns and know that they can come to them for help and guidance.

Protecting Your Business with Insurance

If an employee feels discriminated against because of their pregnancy, they may decide to sue the company. Such claims can be extremely costly and damaging to the reputation of a business.

Having the right risk management plan in place allows businesses to transfer the financial burden of such allegations to the insurer. More importantly, it allows them to deal with the claims and the employees who filed them in a way that is fair, honest, and ethical.

There are two important policies that would respond in such cases: EPLI (employment practices liability insurance) and D&O (directors and officers insurance).

EPLI will protect the company from pregnancy discrimination claims and other employment-related claims such as sexual harassment, failure to promote, or wrongful termination. The policy will pay for legal costs and cover any judgments and settlements reached.

A D&O policy is crucial in cases where the employee alleging discrimination feels that the company’s management is personally responsible for the discrimination they endured. They may look to bring legal action against both the company and its leadership (executives and board members). In such instances, D&O insurance will pay for defense costs and damages (awards and settlements).

To avoid gaps in coverage, these two policies are often combined into one seamless package, usually called management liability insurance.

If you have more questions about insurance and how to protect your business in the case of employee-related claims, don’t hesitate to reach out to one of our expert brokers at any time.