H. Benefits During Pregnancy

Employers cannot treat pregnancy-related disability or maternity leave differently from the way they treat other forms of disability or leaves of absence. To do so violates both federal and state discrimination laws. The Pregnancy Discrimination Act of 1978, an amendment to Title VII of the federal Civil Rights Act of 1964, prohibits discrimination on the basis of pregnancy, childbirth, and related medical conditions. The law requires employers to review their health, disability, insurance, sick leave, benefit, job reinstatement, and seniority policies to ensure that they treat pregnancy-related disability and maternity leaves of absence the same as other temporary absences for physical disabilities.

The following general rules illustrate what employers may and may not do in this area:

• Employees who are on maternity leave (defined as the child-care period commencing after disability from the pregnancy and birth has ended) are entitled to accrue seniority, automatic pay increases, and vacation time on the same basis as other employees on medical leave.
• Employers may not require pregnant workers to exhaust vacation benefits unless all temporarily disabled workers are required to do the same.
• Employers may require a physical examination and doctor's certification of ability to return to work only if such is required of all temporarily disabled workers.
• Although employers may require workers to give notice of a pregnancy, such requirement must serve a legitimate business purpose and must not be used to restrict the employee's job opportunities.
• Employers are prohibited from discriminating in hiring, promotion, and firing decisions on the basis of pregnancy or because of an abortion.
• After a birth, an employer cannot prohibit a woman from returning to work sooner than company policy dictates.
• Employers are barred from forcing pregnant workers to take mandatory maternity leaves (i.e., forcing a woman to leave work against her wishes in anticipation of giving birth) as long as the employee is able to do her job.
• The decision as to whether payment for pregnancy disability leave will be given must be in accord with policies governing other forms of disability leave; if paid leave is provided for workers with other disabilities, the employer must provide pregnant workers with paid leave for their actual disability due to pregnancy and related childbirth.
• Time restrictions based on pregnancy-related leaves (e.g., that pregnancy leaves not exceed four months) must be reasonable and job-related; if not, they may be illegal. Also, employers are generally required to provide disability benefits for as long as a pregnant woman is unable to work for medical reasons.
• It is illegal to place pregnant workers on involuntary sick leave if the company has no policy of placing workers with other forms of disabilities on involuntary leave; if a worker is physically able to work, the company cannot force her to leave merely because she is pregnant.
• An employer cannot refuse to hire a pregnant worker because it does not want to find a replacement when the employee takes a leave to give birth if her skills and qualifications meet or exceed those of other applicants.
• Women who take maternity leave must be reinstated under the same conditions as employees who return from leaves for other disabilities. For example, if an employer reinstates a worker who was absent from work due to a case of chronic bronchitis, the employer must reinstate a worker after childbirth to avoid violating Title VII.
• If an employer accommodates partially disabled workers who cannot perform certain job assignments (such as lifting heavy objects because of a strained back), the employer is obligated to make similar arrangements for a pregnant worker.
• Employers cannot limit pregnancy disability benefits to married employees. Federal law states it is illegal to fire female workers who get married if the employer does not fire male workers who get married. Many state laws have gone even further to protect women; statutes have been enacted that prohibit employers from making any adverse decisions on the basis of a person's marital status even if the employer applies its policies equally to males and females.
• At the hiring interview, you cannot be asked questions about childbearing plans or pregnancy.
• Employers are not allowed to ask a pregnant employee to choose between a lower-level job and resignation.

(Author's Note: The above rules may not apply, depending on the law and the particular facts and circumstances of your case. Always consult an experienced employment lawyer for advice and guidance where applicable.)

Thousands of pregnancy-related discrimination lawsuits are filed each year; the kind of mistreatment varies. For example, in one recent reported case, six workers who said they were laid off after asking for lighter duties because of pregnancy sued their employer in Federal District Court. One of the plaintiffs, a train operator, asked for light-duty assignment when she announced her pregnancy. According to the court papers, she was then placed on involuntary unpaid leave despite the fact that she was ready, willing, and able to continue working and that appropriate work was available. The suit also charged that the women who were laid off were unable to collect unemployment insurance because the employer advised the Unemployment Insurance Department that they had gone on voluntary leaves. The employer argued that no employee is allowed to remain on light duty longer than 14 days, whether pregnant or disabled by any other condition. The case has yet to be decided by a judge.

Although pregnant workers were subject to poor treatment from employers in the past, the laws are now attempting to put pregnant women on an equal footing with other employees. The number of pregnancy discrimination claims filed with the EEOC increased by more than 33 percent between 1991 and 1995. While an estimated 84 percent of women expecting children work into the final month of pregnancy, and about one-third return to work within eight weeks and half return within three months of giving birth, millions of women have lost their jobs after giving birth. Fortunately, with the passage of the Family and Medical Leave Act (discussed in the next section), pregnant women who work for employers with more than 50 full-time employees are guaranteed equivalent jobs when they return.

Counsel Comments:In some cases, however, pregnant women lose their claims because they fail to prove their case or ask for accommodations beyond the minimum provided by law. The following two cases illustrate the problems often associated with winning pregnancy discrimination lawsuits.

In one case, a woman 19 weeks pregnant asked for reassignment to a job that did not require heavy lifting. She was given a job at the service desk, which required evening and weekend work. She was unable to work those hours because of family conflicts and declined the assignment. The company fired her and she sued for pregnancy discrimination. She lost her case because she failed to prove a disparate impact (i.e., that other employees who were reassigned for medical reasons and objected were not terminated). The judge commented that the law does not guarantee that pregnant workers not suffer any adverse employment decisions. He wrote that "the law only protects against employment decisions which, for discriminatory reasons, are different from decisions relating to persons who are not pregnant."

In another case, a female salesperson suffered severe morning sickness during her first trimester. As a result, she was often late in reporting to work. The woman was placed on part-time status but continued to report to work late. After several warnings and being placed on probation, the company fired her. Although she was fired one day before taking maternity leave, the court ruled that that fact did not warrant a finding of liability because the company was free to fire anyone who could not work due to a medical condition, whether pregnant or otherwise.

Tip:The second case is significant as a teaching model for several reasons. The woman salesperson's case might have been strengthened if she had found other, nonpregnant workers who had not been fired due to excessive absences or right before taking a leave of absence. And although the company was guilty of poor timing, the woman failed to introduce significant evidence at the trial, such as damaging statements made to her indicating that the reason given for the firing (i.e., excessive lateness) was really pretextual (i.e., unfounded) and offered just as an excuse to terminate because she was pregnant. Apparently, given the absence of important comparisons and other evidence, she lost her case. This illustrates the kind of evidence you must be able to offer if your lawyer is to be successful in proving a pregnancy discrimination case.

Speak to a competent employment lawyer if you feel you have been discriminated against on the basis of pregnancy. Women who are fired while pregnant should naturally suspect that pregnancy was the reason for the discharge. Consider filing a claim alleging pregnancy discrimination with the EEOC or appropriate state antidiscrimination agency. The filing is free, and you do not need a lawyer to assist you in the process. Information on how to file a discrimination charge is given in Chapter Six.

Employers are often advised that even when a decision to fire has nothing to do with a woman's pregnancy, it may be wise to continue her employment until she voluntarily leaves to give birth, rather than fire her several months before the birth, to avoid the added costs and burdens of contesting a charge of pregnancy discrimination. Employers are also advised by their attorneys that if they must fire a pregnant worker, they should be sure that her file supports the decision (i.e., that unfavorable job performance appraisals and repeated written warnings are present in the file and the worker was repeatedly warned about her performance before the company was notified of her pregnancy).