Pregnancy Discrimination

Mothers and Mothers-to-Be: Know your rights in the workplace.

Employment Attorney Kerry O'BrienPregnancy discrimination in the workplace involves treating a woman (whether a job applicant or a current employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act of 1978 (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. It was passed as an addition to the overall federal law that prohibits medium and large employers from discriminating against job applicants and employees based on sex, race, color, national original and religion (Title VII of the Civil Rights Act of 1964).

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia) may be disabilities under the Americans with Disabilities Act. An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent significant difficulty or expense to the employer.

One thing to keep in mind is that, at this time, the PDA only covers employers with 15 or more employees. What if your employer has around 15 employees? Talk to a board-certified employment lawyer about this. The standard used is very specific. However, sometimes employers will have 15 employees for just long enough to be covered. Or perhaps the employer is using a few “independent contractors” who actually should count as employees. Or, perhaps the employer has his or her business operations split into multiple legals that should be considered, practically speaking, as one unit, and that together would put the total employees over 15. Again – an attorney can sort this out. Talk to one before you walk away from holding an employer accountable for violating the law against you because of your pregnancy.

The bottom line is this: Mothers and mothers-to-be deserve equal treatment in the workplace. Where you have the right to demand equal treatment, and the employer has violated your rights, taking action to hold the employer is both about making you whole and keeping the employer from doing the same thing to pregnant employees in the future.

Here are some specific examples of what an employer covered by the law cannot do:

  • An employer cannot refuse to hire you because of your pregnancy-related condition as long as you are able to perform the major functions of the job.
  • You cannot be fired, demoted, or denied a promotion because you are or may become pregnant.
  • Your employer may not single out pregnancy-related conditions for special procedures to determine your ability to work but may use any procedure used to screen other employees’ ability to work.
  • Your employer cannot force you to stop working and take pregnancy leave at any time during your pregnancy if you are still willing and able to perform your job.
  • If you are temporarily unable to perform the functions of your job due to your pregnancy-related condition, your employer must treat you in the same manner as any other temporarily disabled employee, by providing modified tasks, alternative assignments, disability leave, or leave without pay.
  • Your employer must give you the same level of rights, benefits, and reinstatement privileges given to other workers who are temporarily disabled.
  • If an employer’s health plan includes spousal coverage, the employer cannot deny coverage for the pregnancy care of a male employees’ spouse.
  • Pregnancy-related benefits cannot be limited to married employees.
  • Employer-provided health insurance must cover pregnancy-related conditions on the same basis as costs for other conditions.

This applies to both official and unofficial company policies. For example, if the official company policy does not allow workers to take disability leave, but the company has bent the rules to allow a male employee to take paid leave, the company must bend the rules to allow a pregnant employee to take paid leave as well.

What if I’m getting harassed about my pregnancy, but nothing specific has happened to my job?

If the employer engages in a pattern of what’s referred to as “severe and pervasive” harassment of you because of your pregnancy or the potential to become pregnant, that could violate the PDA as well. If this is going on, talk to an employment attorney. The legal standard for how much, or what kind of, harassment it takes to turn your work environment into a “hostile work environment” is relatively high and can only be properly evaluated by an experienced and knowledgeable employment attorney.

The PDA also prohibits your employer from interfering in your personal reproductive health care decisions regarding birth control, sterilization, and abortion. For example, it is illegal to force you to end a pregnancy in order to keep your job, and your employer cannot fire you if you have had or are considering having an abortion.

What if I’m an independent contractor? Am I protected in my job if I’m pregnant?

Maybe. The fact is, one of the most common mistakes (sometimes intentional, and sometimes unintentional) that American employers make is misclassifying employees as “independent contractors.” If you are a true independent contractor, the employer avoids certain liabilities – including liability for employer federal tax contributions as well as liability for what might otherwise be violations of employment laws. However, just because an employer calls you an “independent contractor,” and you agree to be paid as one – it does not automatically mean that the law will agree. It’s not the label that matters – it’s the substance of the relationship. Our local courts primarily focus on the degree of control that the employer exercised over you and your work. If these factors suggest that you are actually an “employee” by law, you may be protected by our employment laws. Before thinking “I’m just a contractor, there’s nothing I can do about getting dismissed because they found I’m pregnant” – talk to a board-certified employment attorney. You may have rights to allow you to hold the employer accountable, not just for yourself, but for future pregnant women in that workplace.

What doesn’t the PDA protect you against?

While the PDA was a step in the right direction, there are unfortunately many important protections that the law still does not provide:

  • The PDA does not require employers to provide disability leave or medical coverage for pregnant employees.
  • As stated earlier, the PDA does not apply to employers of fewer than 15 people, or to women who work part-time or as (true) independent contractors.
  • The Federal Government, private clubs, and religious organizations are exempt from the PDA.

As a result, it’s estimated that more than 1/3 of working women are not covered by the PDA. Texas law provides concurrent protections against pregnancy discrimination, but this law also requires the employer to have at least 15 employees. So the smallest employers still aren’t covered by the law. Your city may have an ordinance that provides some protections.

What’s the process if you’ve been discriminated against based on pregnancy?

The Equal Employment Opportunity Commission (EEOC) LogoFor discrimination cases in Austin, you have to first file a “charge of discrimination.” The O’Brien Law Firm normally files our clients’ charges of discrimination with the San Antonio Field Office of the Equal Employment Opportunity Commission. (Austin doesn’t have its own EEOC field office because the Texas Workforce Commission Civil Rights Division handles much EEOC work under a work-sharing agreement, and they are already based in Austin.) Dallas/Fort Worth-area discrimination cases are filed with the EEOC Dallas District Office. Houston-area cases are filed with the EEOC Houston District Office. You only have the right to file a lawsuit against the employer after the EEOC (or the TWC-CRD) has completed its investigation and issued you a notice giving you the right to sue the employer.

At that point, you usually have 90 days from your receipt of the EEOC notice (60 days from receipt of a TWC-CRD notice) to file your lawsuit. So, don’t wait until you get your right-to-sue notice to start looking for a board-certified employment attorney to help you. Our firm has worked with the San Antonio, Dallas and Houston EEOC investigators on a substantial number of investigations and can be a great asset to leveraging a satisfying result against an employer who is willing to negotiate early to resolve a violation. And if they aren’t – we are ready to use your skill and experience to get you justice in court and hold the employer accountable for the sake of protecting future job applicants and employees like you from the same type of job discrimination.

If you think you are being or may have been discriminated against because of pregnancy, call the O’Brien Law Firm NOW at (512) 410-1960, set up a FREE phone consultation or fill out the form below so that we can get to know you and your situation. Your information is confidential and the form submission goes directly to attorney Kerry O’Brien for his review. 

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