The Pregnancy Discrimination Act: the Forgotten

by / Sunday, 15 July 2012 / Published in Labor and Employment

The Pregnancy Discrimination Act:  the Forgotten Right of Female Employees

By Marc G. Tarlow

Shumaker Williams, P.C.

 

Recently, a prominent tech company hired a CEO who at the time of hire is pregnant.  With a view to how the workplace has continued to change, it seemed a good time to review a right of pregnant employees that we often find is a surprise to employers and their human resource professions.

Most employers understand well that pregnant employees have certain rights under the Family Medical Leave Act (“FMLA”).  They also understand that this will not protect all employees.  This includes the common circumstance such as where the employer has fewer than fifty employees.  Employees working for employers who are governed by the FMLA may still not qualify for benefits when pregnant: they may have insufficient hours worked during the relevant period such as in the case of new employees, or they may have already expended FMLA.  However, pregnant employees are not without additional rights, which with the passage of the FMLA is an often forgotten fact.

During the 1970’s the United States Supreme Court held that women who had delivered children need not be treated as disabled under either equal protections principles or under the Equal Employment Opportunity Act.  In other words declining to treat women as disabled after delivery of a child or from other effects of pregnancy was deemed to not be discriminatory.

In response Congress passed the Pregnancy Discrimination Act (“PDA”).  Essentially it provides that to the degree a female employ is disabled as a result of pregnancy, they must be afforded the same rights as men.  In practice this means that for pregnant employees who are not covered by FMLA, they are covered by Title VII and the PDA.  While they are unable to work because of disability caused by pregnancy they must be afforded the same rights that men who are disabled receive.  Typically, physicians will determine that a female employee is disabled for a period of six to eight weeks after delivery.  If the employer provides for paid or unpaid sick leave for men who are absent (say for example six weeks), then a pregnant employee must be afforded the same rights.

Keep in mind there are two separate issues: whether the employee is afforded leave and whether the leave is paid.  Even if the employer’s sick leave policies do not provide for that length of paid sick leave, or even if the employee has expended available paid leave, that does not mean that the employee may be summarily terminated.  Instead, the question arises whether the employer is required to offer a leave without pay.  For example, pregnancy does not in and of itself constitute a disability under the American With Disabilities Act (“ADA”), but if the employee has a condition caused by the pregnancy (for example high blood pressure, diabetes, etc.) then the ADA may apply.  If the ADA applies, leave is generally considered a reasonable accommodation.  There is also the question as to whether male employees have been afforded the right to unpaid leave.

 

In short, when dealing with pregnant employees, keep in mind that the FMLA is not the full extent of the rights provided by law supporting job retention and paid leave.

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