Pregnancy Discrimination: What It Is and What You Can Do About It
One of the biggest moments in a person’s life is the moment they become a parent. The miracle of childbirth is both terrifying, awe-inspiring, and wonderful. When you’re pregnant, there’s enough medical things for you to worry about, and you certainly don’t need the extra stress of work.
Unfortunately, many Americans also have to worry about how their job will treat them while they’re pregnant. Although there are strict non-discrimination laws in place that can protect pregnant individuals, this hasn’t stopped pregnancy-based discrimination from occurring in the workplace.
If you’re pregnant (or plan on becoming pregnant) and feel that you may be the target of pregnancy discrimination, what should you do to report it? How can you stand up for your rights and prevent the discrimination from continuing?
Being pregnant comes with enough challenges and surprises. There’s no reason to let pregnancy discrimination add to your stress, so here’s some advice to help you understand and fight discrimination head on.
The Pregnancy Discrimination Act of 1978
Pregnancy discrimination is protected by a few anti-discrimination laws in the United States. Since pregnancy often takes a toll on the body and can cause postpartum medical conditions, there are some protections provided by the Americans with Disabilities Act (ADA). Title VII of the Civil Rights Act also prohibits discrimination in employment based on race, religion, national origin, color of skin, and gender. Since pregnancy requires a uterus, targeted discrimination of a pregnant person could also be seen as gender-based discrimination.
However, the most comprehensive anti-discrimination laws that prohibit pregnancy discrimination can be found under the following amendments and acts:
- The Pregnancy Discrimination Act of 1978: This act was created as an addition to the original Title VII of the Civil Rights Act of 1964. The Pregnancy Discrimination Act extends gender protection by prohibiting discrimination based on pregnancy, childbirth, or any related medical conditions.
- ADA Amendment Act of 2008: According to the EEOC, “Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). […] The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.”
- Family and Medical Leave Act (FMLA) of 1993: This law is enforced by the Department of Labor (DOL), and protects parents (both adoptive, foster, and birthing) from being denied parental leave under particular conditions. The parents must have worked with the business for over 12 months prior to taking the leave, and the FMLA guarantees them a minimum of 12 weeks of unpaid leave or paid leave (if they have accrued the hours needs for paid leave, or dependent on the business’ policy). See the DOL website for more information about coverage and exemptions.
It is also important to be aware of any local laws that might apply to pregnant individuals in your state. Some states require paid leave for parents, while others might have stricter laws surrounding ADA compliance. You can find out more about some of those state-specific laws here.
Examples of Pregnancy Discrimination in the Workplace
Finding information about your federal protections as a pregnant employee can be easy, but actually identifying discrimination can be a bit more difficult. Blatant bias is rare (but still happens), so often times it’s the more subtle biases that you have to identify.
Essentially, any negative comment, assumption, or unfair treatment of a pregnant employee (including unequal access to employee benefits, such as parental leave, or retaliation) due to their pregnancy or a related medical condition is a form of pregnancy discrimination.
Employers must also make reasonable accommodations for pregnant employees (if it is needed), as long as those accommodations don’t cause undue financial hardship to the company. For example, if an employer can provide reasonable accommodation to an employee with a back injury, they should be able to provide the same accommodations to a pregnant employee that is also experiencing back pain as a result of the pregnancy.
Some examples of pregnancy discrimination can include:
- An employee at a distribution warehouse finds out she is pregnant and shares the exciting news with her manager. Since her position requires a lot of manual labor, the manager warns her that it is ill-advised to work manual labor while pregnant. A week later, the employee is laid off, and she wonders if her announcement might have caused the business to retaliate against her.
- A woman who is single becomes pregnant, and once her coworkers find out, some of them make repeated derogatory comments about her pregnancy behind her back. The woman finds out and reports the harassment to her manager. The manager doesn’t take the complaint seriously, and the pregnant woman is forced to file with the EEOC.
- A new parent is back at work but still breastfeeding their child. During work hours, the employee has to spend time pumping breast milk so as not to be in pain. When a manager finds out they are doing this during their breaks, they threaten the employee with retaliation. However, any retaliation would constitute discrimination, which is enforced (in this particular instance) by the Department of Labor.
- An expectant mother applies for a promotion with her business. She is almost guaranteed the position due to her experience and skills. However, before they announce who received the position, her manager finds out she is pregnant. The expectant mother is passed up for the promotion, and she wonders if it is due to her pregnancy and the maternity leave she will have to take as a result.
- A soon-to-be father reports to HR that he will soon have a baby and will be requesting paternity leave. Although other expectant mothers have had leave approved by the business, this employee is denied a full 12 week paternity leave. Instead, HR insists that he doesn’t need that much time off, and they offer him 6 weeks instead. However, he has met the requirements by the DOL to qualify for leave, and could have a case for discrimination if he pursued it.
- An applicant for a position is noticeably pregnant, and during the interview the hiring manager asks “When are you due?” This question might sound innocent, but it is not at all related to the applicants skills or ability to perform the duties of the job. Despite the applicants skills and knowledge, she is passed up for the job. Although it would be difficult to prove bias, it could be assumed that she wasn’t hired due to her pregnancy and a potential need for extended time off after giving birth.
How to Prevent and Combat Pregnancy Discrimination
Recognizing pregnancy discrimination can be difficult, but if you can identify the discrimination, what should you do next?
The most important step you need to take is to notate every instance of pregnancy discrimination that you’ve been able to identify. Write down what was said, who said it, when and where it happened, and how it affected your work that day. Do this both for yourself and so you can bring a copy of the notes to your HR department when you file a complaint.
Once you’ve written down your experiences, consult your employee manual for how to report instances of discrimination or harassment. Every business will have a different protocol: some might require you report to your direct manager, while others might simply have you report to HR. No matter what, you will be required to notify your business before you can report the issue to the EEOC — except in instances where you were retaliated against (as the business could be held liable in those cases).
Set up a meeting with your HR representative or manager (if your manager was the harasser, then go to their direct manager instead and explain the situation), and take this opportunity to share your notes with them and explain how the discrimination has affected you. Next, they may ask you to write a formal complaint. Make sure to get a copy of that complaint for your own records.
When the business has been notified of the discrimination, it is then their responsibility to address the harassment or discrimination and take reasonable steps to stop it from continuing. This could include retaliation against the harasser, or requiring everyone to take anti-discrimination classes. Be aware that if any retaliation happens to you after reporting the harassment — this can include being withheld pay, denied benefits, laid off, fired, or held back from a raise or promotion — then the business could be held liable by the EEOC for discrimination.
Once you’ve reported the discrimination to your company, you can then report the discrimination to the EEOC if you believe the company did not handle your complaint seriously. The EEOC requires you report the issue within 180 days of the last incident, and you can do so through their online “Filing a Charge of Discrimination” portal. There are multiple outcomes that could come from filing a charge, as we at Fiscal Tiger have covered before in our piece about How to File a Harassment Complaint at Work:
- “They may suggest mediation between yourself and the company, and the EEOC will provide an experienced mediator to help suggest a solution. This could result in both parties resolving to agree on a voluntary settlement. This is also typically the fastest resolution, and the EEOC says it could be resolved as soon as 3 months after reporting.
- “The EEOC may investigate your claim and find your experience to be worthy of a lawsuit. If they decide this, they will send you a letter detailing your right to file a lawsuit in court, and you will have 90 days to do so if you decide to pursue. You can also directly request a Notice of Right to Sue from their online portal. There are also extremely rare cases where the EEOC might file the lawsuit on your behalf (this is normally reserved for extreme cases).
- “The EEOC may investigate your claim and be unable to find if a law was violated, but will see merit to your case. In these circumstances, they will also send you a Notice of Right to Sue, and will leave it to the a judge’s discretion to determine a verdict in court if you decide to pursue a lawsuit independently. You will have 90 days to decide if you want to file a lawsuit.
- “The EEOC may investigate your claim and find that the business was not in fault, or that the claim brought to their attention was not legally classified as harassment. If this is the case, they will notify you of their decision and dismiss your charge.”
No matter what the outcome of your filed complaint may be, it’s important to take that first step and notify your business. The best way to prevent harassment or discrimination is to raise awareness around the issue and confront it head on when it happens. Your business should take any complaint you bring to them seriously, and if they don’t, then you have the EEOC to backup your case.
Being pregnant can be stressful, but facing pregnancy discrimination at work can be even more so. Make sure you have a support group that can help raise you up if you experience discrimination; as empathy, compassion, and a shoulder-to-lean-on can help you get through this difficult time.
Pregnancy discrimination can happen to any pregnant individual, but it should never be allowed to continue. The more people that can report and combat harassment, the better it will be for future generations.
Image Source: https://depositphotos.com/
Katie McBeth is a researcher and writer out of Boise, ID, with experience in marketing for small businesses and management. Her favorite subject of study is millennials, and she has been featured on Fortune Magazine and the Quiet Revolution. She researches SEO strategies during the day, and freelances at night. You can follow her writing adventures on Instagram or Twitter: @ktmcbeth
This post was updated February 28, 2019. It was originally published March 12, 2018.