On the other hand, the law does allow employers to do more for pregnant women if they want. The requirement of equal treatment prevents employers from treating pregnant women worse than other employees, but it doesn’t prohibit them from treating them better. For example, an employer can offer pregnancy disability leave to women, calling it maternity leave, and not offer the same to men. However, if an employer offers leave for purposes of bonding with a new child (not for recovery from the physical demands of childbirth), it must offer that to all parents, not just birth mothers.
How can I tell what type of leave my employer provides?
Look at your employee handbook. Check to see how birth mothers, temporarily disabled individuals, new parents, and those dealing with a family emergency are treated. If there is no employee handbook, or you are confused, you can ask around and find out who has previously been given leave and why.
Can my employer force me onto disability leave?
As long as you can do your job, you cannot be forced out. You must be allowed to work as long as you are able to do the work. The flip side of this is that if you cannot do the work required of your job, and your employer does not help out anyone else with similar limitations, you may be let go or forced onto unpaid leave. If you are forced out or are absent as the result of a pregnancy-related condition, but you then recover and are able to work again, your employer cannot require you to remain on leave until your baby is born. You must be allowed back to work.
What if I am forced onto disability and because of that don’t have enough hours to be eligible for the FMLA?
Aside from a potential PDA violation (as discussed previously), you may be dealing with a violation of the Family and Medical Leave Act. We talk more about the FMLA in chapter 2, including how many hours you must work to be eligible for time off. For now, you should know that if your employer is covered by the FMLA, your boss must not interfere with your rights under the law. Forcing you out on disability in order to prevent you from working the hours you need to qualify for FMLA leave could potentially amount to illegal interference with your rights. If this has happened to you, consult with a lawyer or workers’ rights advocate about your options.
UNEMPLOYMENT INSURANCE
If you do decide to quit your job, keep in mind that whether or not you can receive unemployment benefits will depend on how you leave. This is important because unemployment benefits can provide critical income to your family while you are out of work. To be eligible for unemployment benefits, you must have lost your job through no fault of your own, and be ready, willing, and able to work. The standards vary from state to state, but generally, you will not be eligible for benefits if you lose your job because of a personal choice. Quitting is generally seen as your choice and therefore your “fault.” Constructive discharge, or being effectively forced out of your job, is generally not considered your fault and should not disqualify you from unemployment insurance benefits. The law also may allow for certain exceptions where you can quit with what’s called “good cause.” For example, if you quit because of a medical reason related to your pregnancy, you may be able to collect benefits, even though you quit. If your job is high-stress and you have a high-risk pregnancy that is made riskier by the stress of your job, and your doctor advises you to stop working, you may be eligible for unemployment benefits, even if you are the one to call it quits. Similarly, if your employer refuses to allow you time off to attend prenatal medical appointments, you might have good cause to quit. Since the rules for unemployment insurance differ depending on the state where you live, check with a local expert before you take the plunge.
TIME-OUT FOR OUTRAGE!
Fact: a woman will not be able to work for a bit of time while she is in labor and recovering from childbirth. Fact: many women in the United States cannot take even minimal time off to welcome a baby without the risk of losing their jobs. Depending on which state they call home, women who work for smaller companies (those with under fifty employees) often have no right to time off to give birth. This is particularly true for women in low-wage jobs that lack basic benefits such as paid sick time, which could be used for childbirth. Contrast this with the United Kingdom, where all female employees are guaranteed up to fifty-two weeks of maternity leave by law and new mothers have to take at least two weeks of time off after giving birth! It’s enough to raise your blood pressure, right?
Does the Law Cover Me?
Does the law protect me if I’m not pregnant yet or anymore?
It should. Some “savvy” employers think that they can just delay firing a pregnant woman until after she returns from maternity leave, and they will be cleared of all wrongdoing. Not so fast, sneaky sexists! If you can show that you were treated unfairly because of your pregnancy, childbirth, or some related medical condition, the law should protect you even if you were not actually pregnant at the time of the mistreatment. This is an area of the law where courts are still ironing out the details. For example, some courts have found that the PDA protects from discrimination women who are on maternity leave and those who have just returned to work from maternity leave. (The FMLA, which we discuss in chapter 2, may also apply in this situation.) Here’s an example:
A woman who worked as a paralegal at a law firm for over fifteen years, who received glowing reviews all along, was terminated eleven days after she returned from maternity leave. One of the firm partners noted that she “had been out quite a bit the last nine months.” Another paralegal at the firm was also fired shortly after returning from maternity leave, after another of the firm’s partners suggested that her pregnancy created “the perfect opportunity to get rid of her.”
Other courts have held that the PDA prohibits discrimination against women on the basis of their ability to become pregnant and that the law prohibits an employer from firing a woman for undergoing IVF treatments. Here’s a real story from a recent case:
Elira worked as a server at a restaurant in a touristy area of New York City. The female servers and bartenders were encouraged to flirt with patrons. Elira had a friendly relationship with her supervisors and shared with them her hopes of becoming a mother. However, the day after she announced that she was moving from the evaluation and diagnostic phase of IVF to the treatment stage, she was fired.11
Not only are prepregnancy conditions covered, but discrimination against a woman because of her postpartum depression is also prohibited by the PDA (and the ADA, as discussed previously; see the section below—Workplace Accommodations for Complicated or Difficult Pregnancies—for more information). Definitely don’t rule out the possibility that the law may cover you just because you are not pregnant at the time you perceive discrimination. If you find yourself in this situation, you should seek legal advice. Also, be sure to write down the details of what your employer says to you, or what you overhear, while it’s still fresh in your mind. And if a colleague tells you about comments he or she overheard, write that down too. The key will be tying what your employer did to your pregnancy or childbirth.
Does the law protect me if I am an independent contractor/ freelancer/self-employed?
No. Unfortunately, the definition of “employee” under the PDA does not include independent contractors (whom the law treats the same as freelancers and those who are self-employed). That being said, plenty of employers improperly call their employees independent contractors to avoid complying with the laws that protect employees. So don’t assume you are not protected by the PDA just because the place where you work denies you an employee benefit plan, pays you by the hour, or treats you like an independent contractor for tax purposes. You could still be an employee, especially if you do not have a great deal of control over how and when you do your work. If you have any doubt about your status and the legal protections you may be missing out on, it’s a good idea to consult an attorney. And even if you are an independent contractor, you still may be able to seek justice under the common law (e.g., by claiming breach of contract) or your local law.
Does the law protect me if I am an undocumented immigrant?
Yes. The PDA does not let your employer off the hook just because you are an undocumented