What’s Right and What’s Wrong?
What is pregnancy discrimination?
1. An employer may not discriminate against you in hiring, firing, or any other terms, conditions, or privileges of your employment because of pregnancy, childbirth, or related medical conditions. What does that mean? Basically, an employer can’t take negative action against you at work, or in the decision to hire you, because of your pregnancy, because of your upcoming or recent childbirth, or because of any pregnancy- or childbirth-related medical conditions. Here’s a hypothetical example of illegal discrimination:
Jackie worked as a hostess at a popular and pricey cocktail lounge. When she told her boss that she was expecting a baby, he thanked her for her service and told her she was longer needed. In his words, “We can’t have you lumbering about with a tray full of cocktails. Our customers expect a more refined experience.”
2. Also, as we discussed earlier in this chapter, pregnant women and those affected by childbirth or related medical conditions must be treated the same as other workers who are similarly unable to work. Here’s another hypothetical example:
Alisha worked as a dental hygienist. When she got pregnant, her boss told her the office didn’t have a maternity leave policy, and she would have to return to work as soon as she used up all her sick and vacation time. Alisha found out that a former employee had been allowed to take unpaid leave for a month after surgery for breast cancer. Alisha should be allowed to take a similar unpaid leave after giving birth.
ADVERSE ACTIONS
In order to have a legal claim, you need to experience an “adverse action” or negative consequence as a result of discrimination. What does that mean? Let’s say that your boss says some inappropriate things about your pregnancy, but her or his comments have no real impact on your job. They’re not severe enough to amount to harassment, and you are able to continue working, take your maternity leave, and return to your job without incident. In this case, even though you feel offended and may have experienced some discrimination, there’s been no adverse action, so you are unlikely to have a claim for relief. What is an adverse action? Here are some examples.
After announcing your pregnancy at work, the following happens:
— Your boss cuts your hours, even though you never asked for reduced hours.
— You suddenly start receiving poor performance reviews.
— Your boss targets you for unsuitable or dangerous work.
— Your boss tells you to train others to do your job and transfers you into a lower-paying position.
Does that mean my employer can't fire me while I'm pregnant?
No. The law does not automatically protect you while you are pregnant. Your employer can still fire you or treat you badly for other reasons, just not because of your pregnancy. So if your work performance or attendance suffers during pregnancy, you are not protected from any discipline at work just because you are pregnant. Your boss can discipline you for those things, as long as she or he applies the same standards to you as to nonpregnant employees. In the United States, we generally have an “at will” employment system, meaning your employer can fire you at any time for any reason (because he or she doesn’t like your haircut, because you were late once, because your boss has decided he or she just doesn’t like you, etc.). There are a few exceptions—namely, your employer can’t fire you for discriminatory reasons, like if he or she found out that you were a Muslim or that you were pregnant.
Ever since I announced my pregnancy, my employer has been making my life miserable. My boss docks me a day’s pay for every time I come in late because of morning sickness and for each time I have a prenatal appointment with my doctor. He has repeatedly made nasty remarks about my pregnancy. Is this illegal? I’m seriously thinking of quitting because I just can’t take it anymore.
Harassment based on sex that is severe enough to create a hostile work environment is illegal. If your employer is harassing you because of your pregnancy, that is harassment based on sex and, if serious enough, may be unlawful. If the situation is so bad as to be unbearable, you may be experiencing something called “constructive discharge.” That means if you quit, you may have a claim against your employer because you were forced to do so, even if your boss never formally fired you.
I recently suffered my fourth miscarriage in a year, and my employer advised me to stop trying to get pregnant for a while, since it was obviously not working out. She told me I was missing too much time from work to recover and did not consider me for a promotion because of all of my absences. Is this illegal?
Possibly. The PDA protects you from discrimination based on pregnancy and related medical conditions, which includes miscarriage and abortion. Your employer’s first statement alone may not be enough to prove discrimination, but when viewed together with her decision to deny you a promotion, it is probably enough to suggest unlawful behavior. If you have a pregnancy-related disability, including a high-risk pregnancy, you also may be protected by the Americans with Disabilities Act or a similar local law (see the section below—Workplace Accommodations for Complicated or Difficult Pregnancies—for more information).
I recently found out that I was carrying a fetus with severe genetic mutations. My partner and I decided to terminate the pregnancy, but my health care plan is refusing to reimburse me for the medical costs. Is this illegal?
No. Although it is true that any employer-provided health insurance must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions, the PDA does not require expenses arising from abortion to be covered, except where the life of the mother is in danger.
I told my immediate supervisor I was pregnant, but I haven’t discussed it with our boss yet. When I told my supervisor, she said I better be sure not to make her life hard by taking time off for sickness or doctor’s appointments. Is this pregnancy discrimination?
It could be pregnancy discrimination even though it was only your supervisor who threatened you. A lawyer could help you figure out the answer in a specific case. But it’s important to cover all your bases by telling a higher-up boss or your human resources department about your pregnancy—and by telling them about any discrimination you feel you are experiencing. It’s also worth noting that women can be biased just as much as men; when it comes to discrimination, it is irrelevant whether a boss, supervisor, or human resource manager is male or female.
It’s common knowledge at the hotel where I work that pregnant employees will be asked to go home to “rest” when they start showing and will probably not be hired back after they give birth. Do I really have any rights if this is my employer’s policy?
Yes. The fact that your employer routinely forces pregnant women out of their jobs does not make it any more legal. You may want to enlist the support of an attorney or call a legal hotline or community group to get some advice before you try to discuss the issue with your employer.
Does the PDA guarantee maternity leave?
No. The PDA does not guarantee you any time off related to childbirth and does not protect your job while you are giving birth or recovering from delivery. (Read chapter 2 to see whether you might be entitled to job-protected time off under the Family and Medical Leave Act, and keep an eye out for interpretations of the Americans with Disabilities Act that might include recovery from childbirth as a disabling condition entitled to accommodation.) The PDA requires only that pregnant women be treated the same as other employees. This means that if your employer grants leave for employees with temporary disabilities, it must grant you some leave too for recovery from childbirth. But if your employer does not grant any temporary leave or sick leave of any kind for anyone, it does not have to provide leave for you related to your pregnancy. (If you work for an employer