Pregnancy should be a cause for celebration – not discrimination. Federal, state, and local laws prohibit employers from discriminating against employees based on pregnancy or pregnancy-related disability. But unfortunately, pregnancy discrimination is still alive and well.
If you think you have been discriminated against due to pregnancy, contact Moses Law, P.C. today for a free evaluation of your case.
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Pregnancy discrimination occurs when an employer, supervisor, co-worker, business partner, client, or customer treats an applicant or employee differently based on her pregnancy, childbirth, or pregnancy-related conditions.
In order to have a strong case, you will need evidence of pregnancy discrimination that goes beyond your own verbal accounts. Before contacting an attorney, read through the information below to ensure you have sufficient evidence to make a claim.
How to Prove Pregnancy Discrimination in the Workplace
To win a pregnancy discrimination case, you must show that you were treated differently than your non-pregnant, similarly-situated coworkers – and that the difference in treatment was based solely on your pregnancy.
Two main types of evidence can support this claim:
1. Direct Evidence
Written or recorded statements proving an employer acted with discriminatory intent. Examples include an e-mail an employee was accidentally cc’d on that contained derogatory comments about a pregnant employee or an employer telling an employee, “I’d like to give you the promotion, but I know you won’t want to travel as much once you have your baby.”
2. Circumstantial Evidence
Evidence from which it can be inferred that it is more likely than not that discrimination motivated an employer’s actions. Examples of circumstantial evidence would be evidence that non-pregnant employees are treated differently or evidence that a pregnant employee was passed over for a position in favor of a less-qualified, non-pregnant employee.
What Laws Prohibit Pregnancy Discrimination in the Workplace?
The federal law which prohibits pregnancy discrimination in employment is Title VII of the Civil Rights Act of 1964 (“Title VII”), which includes the Pregnancy Discrimination Act of 1978 (“PDA”). Further, the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) also forbid any form of pregnancy discrimination in the workplace.
What are the Different Types of Pregnancy Discrimination?
Pregnancy discrimination cases can include all the following:
Frequent and pervasive harassment due to pregnancy, including offensive jokes, insults, threats, or intimidations.
This is one of the most common forms of workplace discrimination against pregnant employees. Frequent and pervasive conduct—such as unwelcome and offensive jokes, insults, physical assaults and threats, and intimidation—that interferes with a pregnant or new mother’s work performance and creates a hostile working environment is considered unlawful discrimination. This harassment can be carried out by a supervisor, co-worker, business partner, or even by clients or customers.
Refusal to hire due to pregnancy.
If a job applicant is pregnant or intends to become pregnant in the near future, a company cannot refuse to hire her for those reasons. Many companies attempt to justify this by saying that they only want to hire someone who will be able to continue to work without any interruption. The employer may want to avoid what it assumes will be a negative economic impact or disruption of work in the workplace but that is illegal. An employer can’t make an assumption based on bias or stereotypes about how that employee will act during her pregnancy or following childbirth. If you believe that you have been denied a job on the basis of your pregnancy, you should contact a NYC pregnancy discrimination lawyer.
Failure to provide reasonable accommodation(s) for pregnant employees.
In New York, the NYSHRL and the NYCHRL both require that employers provide reasonable accommodations to employees who are pregnant and/or suffer from pregnancy-related complications, such as severe morning sickness or doctor-ordered bed rest. An accommodation is an adjustment to the workplace that allows a pregnant employee or an employee suffering from pregnancy-related conditions to perform her essential job duties. Whether an accommodation is reasonable, however, depends on the degree to which an accommodation would disrupt the employer’s operation or result in unreasonable cost to the employer. However, just being pregnant is not enough to trigger the duty of the employer to make accommodations. If an employee needs an accommodation to be able to perform her essential job duties, it is the employee’s duty to request a reasonable accommodation. The employer has the right to request medical certification to better understand and justify the need for an accommodation.
Failure to provide a new mom with reasonable break time to pump for up to 1 year following childbirth and unpaid break time for up to 3 years, plus a private space, other than a bathroom, in which to pump.
Under the Affordable Care Act, employers are required to provide a reasonable break time for an employee to pump breast milk for her nursing child for up to 1 year. Employers are also required to provide a private place that is shielded from view, other than a bathroom, for the employee to pump breast milk. However, if a company has less than 50 employees, and it can prove that providing breaks or a private space would create “undue hardship” to the company, it may not be required to offer this arrangement to its employees. Further, although the break does not have to be paid, where employers already provide compensated breaks, an employee who uses that break time to pump milk must be compensated in the same way that other employees are compensated for break time. Under the New York Labor Law, an employer is also required to provide reasonable unpaid break time to allow an employee to pump breast milk for her nursing child for up to 3 years following child birth. The employer must also make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can pump milk in privacy.
Adverse employment action on the basis of pregnancy, including forced time off or position change.
Upon learning that an employee is pregnant, many employers will force the employee to take a leave of absence and claim that they are doing this “for the benefit of the employee” and/or “out of concern” for the employee and their unborn child. They will commonly say things such as, “you need to rest and prepare for the baby. We don’t want you to jeopardize the health of your unborn child.” Some employers will try to reassign the pregnant employee to a less stressful position. Even though the employee never stated that their pregnancy interfered with her ability to perform her job, many employers falsely believe that as long as their intent is good and they are doing what they believe is best for the employee, it does not constitute pregnancy discrimination. This assumption is wrong. If an employee is able to perform the essential functions of her job, any adverse employment action taken against that employee on the basis of her pregnancy will be deemed pregnancy discrimination and is illegal. It is up to the employee and her doctor to decide whether she is able to work. It is not the employer’s decision.
Firing due to pregnancy, even if based upon concerns for a pregnant employee’s health.
There are many examples of blatant pregnancy discrimination, such as when the worker is fired for being pregnant because the employer does not think she will be able to perform her job while pregnant or after giving birth. However, there are also less flagrant examples. Although an employer may have good intentions, such as being concerned about a pregnant employee’s safety on the job, it is still illegal and deemed discrimination to fire a pregnant employee due to concerns for her health. For example, even if a job necessitates lifting heavy objects or being around toxic chemicals, the safety of the employee and her fetus is ultimately up to her and her physician, not her boss or employer.
Examples of Pregnancy Discrimination in the Workplace
During an interview, a job placement agency asks an applicant how many children she has and if she is planning to get pregnant again. The applicant says she is four months pregnant. The agency tells her to come back after she has her child and is ready to work.
An employer fires a female employee after learning that she is pregnant, even though she is still able to work for several more months.
A pregnant worker at a fast food restaurant asks her boss if she can stop lifting heavy boxes during her pregnancy. The boss says no, even though another employee in her same position did not have to lift boxes at work while recovering from surgery.
A pregnant worker needs to take time off to visit her doctor for prenatal care. She is docked and eventually disciplined for missing time from work, even though other workers who need ongoing medical treatment are not docked nor disciplined.
Upon hearing that the employee is pregnant, her manager repeatedly makes comments to her direct report about how her pregnancy status is affecting her work in the hope that she will quit or transfer to a different position. This conduct may rise to the level of actionable pregnancy-based harassment.
A supervisor of a pregnant worker constantly makes jokes and offensive comments about her pregnancy, affecting the worker’s performance.
Remember, pregnancy discrimination can come in different forms. A NYC pregnancy discrimination attorney can help you determine if your rights were violated and advise on the best course of action to take.
What is the Law that Governs Maternity Leave?
The Family and Medical Leave Act (“FMLA”) guarantees an employee, male or female, who has worked at least 1,250 hours within the last year for a company with 50 or more employees the right to take 12 weeks of unpaid, job-protected leave to recover from a serious medical condition — including pregnancy — or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse.
Under the FMLA, you have the right to take this 12-week unpaid leave every year, and to have your health benefits maintained during your leave. The FMLA also guarantees that at the end of the leave you will be given the same job you left or another job equivalent in pay, benefits and other terms and conditions.
If your employer is refusing to provide you with maternity leave guaranteed by the FMLA, you should contact a pregnancy discrimination lawyer in NYC right away. Experienced New York pregnancy discrimination lawyers at the Law Office of Yuriy Moshes will advise you on your current situation and recommend the best course of action to take.
Can I Sue My Employer for Pregnancy Discrimination?
There are a variety of federal, state, and local laws protecting individuals from discrimination in the workplace due to pregnancy or pregnancy-related disability. If you believe that an employer, potential employer, supervisor, co-worker, business partner, or even client or customer has discriminated against you on the basis of pregnancy, you may have a case to sue.
Important: To preserve your right to sue under Title VII, you must first file a charge of discrimination with the EEOC or a similar state agency. There are strict deadlines, both for filing a charge and for filing a lawsuit afterward.
Contact a Pregnancy Discrimination Attorney in NYC to Help With Your Case
Moshes Law, P.C., understands the distressing impact of experiencing pregnancy bias while on the job. Instead of receiving the expected support, you face discrimination due to unjustifiable reasons. If you find yourself in this situation, consult a pregnancy discrimination attorney in NYC to learn whether you have sufficient evidence to establish a pregnancy discrimination case.
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