Discrimination on Pregnancy by an Employee in Long Island and New York City in 2023
What is Pregnancy Discrimination in the Workplace?
Sex discrimination is the unequal treatment of men and women. Under federal and state law, employees have a right to equal treatment at work regardless of their sex at birth or gender identity. As job applicants, in being paid and accessing benefits including health insurance, in consideration for promotion and transfers, and other conditions relating to employment, equal treatment across protected grounds such as sex, gender, race, color, religion, etc. should apply.
Title VII of the Civil Rights Act of 1964 makes sex-based discrimination the subject of private lawsuits by employees against their employers. Still, the Act did not separately list pregnancy as a protected status under the law.
So the Pregnancy Discrimination Act (PDA) of 1978 changed Title VII to prohibit acts discriminating against workers based on pregnancy, childbirth or related medical conditions. It covers all companies that employ 15 or more people, and some government agencies like police forces.
The Pregnancy Fairness Act (PFA) went into force in 2023. It gives employees new rights, in addition to those existing under prior laws, to reasonable accommodations for known conditions and limitations on ability to work related to pregnancy, childbirth or related medical conditions. There was some question, before it entered into effect, as to the extent to which the Americans with Disabilities Act or PDA created rights to have pregnancy-related conditions accommodated.
Under the PFA and New York law, reasonable accommodations for pregnancy-related medical conditions may require adjusted work schedules, modified duties, or new equipment or tools. New York’s size limit for such accommodations is lower than the federal limit, so in New York employers with four or more employees (lower than the federal limit) must provide such accommodations, while under federal law those with 15 or more employees must do so.
The Family and Medical Leave Act grants women a right to at least to 12 weeks of unpaid leave if they and their employer qualify under the Act, including weeks to spend with a newborn child without being terminated from one’s position. New York law guarantees paid medical and family leave to eligible employees, including leave for up to 12 weeks per year to bond with a new child or care for oneself or a member of one’s family who is ill. The New York State Disability Benefits Law and New York City Earned Sick Time Act may also come into play. Also, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) may provide additional rights to pregnant workers who have served in the military branches. It covers up to 5 years of unpaid leave for active military duty, 12 weeks of leave for a qualifying event which may include medical events or pregnancy, and up to 26 weeks of military caregiver leave.
Pregnancy can also be connected with new or worsening sexual or racial harassment. The Supreme Court has stated a “hostile environment” or “hostile work environment” at work on account of being a woman, or a member of the LGBTQ+ community, or black, or Hispanic or some other ethnicity, is prohibited discrimination under Title VII.
New York also covers pregnancy, marital status, and source of income to pay for housing (such as child support or public assistance) in its Human Rights Law. The law shields workers from unlawful discrimination based on “age, creed, race, color, sex, national origin, marital status, domestic violence victim status (in employment only), pregnancy-related condition, military status, favorably resolved arrest record, conviction record, sexual orientation, gender identity or expression, predisposing genetic characteristics, familial status, and lawful source of income (in housing only).”
Studies have shown that pregnancy discrimination is a big problem in society. It was one of the fastest-growing types of discrimination filed. Millions of dollars per year for victims is recovered.
The retail and service industries are major sources of pregnancy discrimination statistics. A lot of complaints relate to work in stores, personal service sites, and so on. Pregnant women have even been fired after being accused of using the bathroom too often, especially before the PFA.
Courts do not require direct evidence of pregnancy discrimination. Pregnant workers or those who have given birth may establish the basics of a discrimination claim by stating that there was a pregnancy or a related condition or event, that there was a negative action by the employer about that time (or that the employee sought an accommodation that the employer did not agree to, and that the employer did accommodate others similar in their ability or inability to work).
The employer may try to respond to a claim by arguing that they had a legitimate non-discriminatory reason for taking the action it did, or refusing to agree to the accommodation requested. Unless there is a settlement, a trial may be needed as to whether the alleged reason is real or imaginary, or whether the employer’s policies are too burdensome on pregnant workers, given the weakness of its nondiscriminatory reasons for having these policies.
Under the updated guidance, women should receive adequate paid leave under New York law, and reasonable accommodations and protection from discrimination under the PDA and PFA.
Applicants for work should not be asked about pregnancy or the potential for it in such a way as to suggest that this may be a factor motivating the employer to choose another applicant. Negative treatment due to assumptions about pregnancy or childbirth is prohibited.
Demeaning treatment of pregnant workers or those returning from leave related to childbirth or pregnancy can constitute unlawful harassment even if it happens only one time.
An employer should not disadvantage pregnancy-related conditions with burdensome procedures for accessing leave or paying sick benefits, that do not apply to other medical conditions. It is generally inappropriate for employers to demand medical proof of pregnancy.
Reasonable accommodations should not be denied to a pregnant or recently pregnant worker under circumstances under which another temporarily disabled employee would be allowed to perform different tasks or assignments, or take disability leave or leave without pay without losing their job or prospects for employee benefits or promotions. A policy that allows workers to access light duties only if they are injured on the job will often violate the law.
Pregnant employees should be permitted to work while they can and not forced to remain on leave after recovering and requesting to return to work. Bosses should fix an arbitrary period of time after childbirth before someone may return.
Lactation rooms and lactation times should be provided as needed.
Employers have to open a job for a pregnancy-related absence for as long as such a job may be held open for employees on sick or disability leave. Health insurance should not single out pregnancy-related conditions for higher deductibles or lower benefits. Pregnancy-related expenses should be reimbursable if other medical conditions are reimbursable, for example at reasonable and customary rates.
Pregnancy-related benefits may not be denied to unmarried employees when they are there for married employees. Fringe benefits for workers on leave should not be denied to those on leave for pregnancy-related conditions.
Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits. An employee should never be treated badly for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
Employers should post required notices relating to pregnancy protections under the law.
It is important to know your rights when it comes to pregnancy discrimination and improper penalties for taking leave to give birth, bond with a child, or deal with medical issues in a family. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.
Title VII of the Civil Rights Act of 1964 makes sex-based discrimination the subject of private lawsuits by employees against their employers. Still, the Act did not separately list pregnancy as a protected status under the law.
So the Pregnancy Discrimination Act (PDA) of 1978 changed Title VII to prohibit acts discriminating against workers based on pregnancy, childbirth or related medical conditions. It covers all companies that employ 15 or more people, and some government agencies like police forces.
The Pregnancy Fairness Act (PFA) went into force in 2023. It gives employees new rights, in addition to those existing under prior laws, to reasonable accommodations for known conditions and limitations on ability to work related to pregnancy, childbirth or related medical conditions. There was some question, before it entered into effect, as to the extent to which the Americans with Disabilities Act or PDA created rights to have pregnancy-related conditions accommodated.
Under the PFA and New York law, reasonable accommodations for pregnancy-related medical conditions may require adjusted work schedules, modified duties, or new equipment or tools. New York’s size limit for such accommodations is lower than the federal limit, so in New York employers with four or more employees (lower than the federal limit) must provide such accommodations, while under federal law those with 15 or more employees must do so.
The Family and Medical Leave Act grants women a right to at least to 12 weeks of unpaid leave if they and their employer qualify under the Act, including weeks to spend with a newborn child without being terminated from one’s position. New York law guarantees paid medical and family leave to eligible employees, including leave for up to 12 weeks per year to bond with a new child or care for oneself or a member of one’s family who is ill. The New York State Disability Benefits Law and New York City Earned Sick Time Act may also come into play. Also, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) may provide additional rights to pregnant workers who have served in the military branches. It covers up to 5 years of unpaid leave for active military duty, 12 weeks of leave for a qualifying event which may include medical events or pregnancy, and up to 26 weeks of military caregiver leave.
Pregnancy can also be connected with new or worsening sexual or racial harassment. The Supreme Court has stated a “hostile environment” or “hostile work environment” at work on account of being a woman, or a member of the LGBTQ+ community, or black, or Hispanic or some other ethnicity, is prohibited discrimination under Title VII.
New York also covers pregnancy, marital status, and source of income to pay for housing (such as child support or public assistance) in its Human Rights Law. The law shields workers from unlawful discrimination based on “age, creed, race, color, sex, national origin, marital status, domestic violence victim status (in employment only), pregnancy-related condition, military status, favorably resolved arrest record, conviction record, sexual orientation, gender identity or expression, predisposing genetic characteristics, familial status, and lawful source of income (in housing only).”
What Are “Pregnancy Workplace Statistics” Related to Discrimination?
Studies have shown that pregnancy discrimination is a big problem in society. It was one of the fastest-growing types of discrimination filed. Millions of dollars per year for victims is recovered.
The retail and service industries are major sources of pregnancy discrimination statistics. A lot of complaints relate to work in stores, personal service sites, and so on. Pregnant women have even been fired after being accused of using the bathroom too often, especially before the PFA.
How Have “Pregnancy Discrimination in the Workplace Cases” Been Decided?
Courts do not require direct evidence of pregnancy discrimination. Pregnant workers or those who have given birth may establish the basics of a discrimination claim by stating that there was a pregnancy or a related condition or event, that there was a negative action by the employer about that time (or that the employee sought an accommodation that the employer did not agree to, and that the employer did accommodate others similar in their ability or inability to work).
The employer may try to respond to a claim by arguing that they had a legitimate non-discriminatory reason for taking the action it did, or refusing to agree to the accommodation requested. Unless there is a settlement, a trial may be needed as to whether the alleged reason is real or imaginary, or whether the employer’s policies are too burdensome on pregnant workers, given the weakness of its nondiscriminatory reasons for having these policies.
How Can Women and Allies Prevent Pregnancy Discrimination in the Workplace?
Under the updated guidance, women should receive adequate paid leave under New York law, and reasonable accommodations and protection from discrimination under the PDA and PFA.
Applicants for work should not be asked about pregnancy or the potential for it in such a way as to suggest that this may be a factor motivating the employer to choose another applicant. Negative treatment due to assumptions about pregnancy or childbirth is prohibited.
Demeaning treatment of pregnant workers or those returning from leave related to childbirth or pregnancy can constitute unlawful harassment even if it happens only one time.
An employer should not disadvantage pregnancy-related conditions with burdensome procedures for accessing leave or paying sick benefits, that do not apply to other medical conditions. It is generally inappropriate for employers to demand medical proof of pregnancy.
Reasonable accommodations should not be denied to a pregnant or recently pregnant worker under circumstances under which another temporarily disabled employee would be allowed to perform different tasks or assignments, or take disability leave or leave without pay without losing their job or prospects for employee benefits or promotions. A policy that allows workers to access light duties only if they are injured on the job will often violate the law.
Pregnant employees should be permitted to work while they can and not forced to remain on leave after recovering and requesting to return to work. Bosses should fix an arbitrary period of time after childbirth before someone may return.
Lactation rooms and lactation times should be provided as needed.
Employers have to open a job for a pregnancy-related absence for as long as such a job may be held open for employees on sick or disability leave. Health insurance should not single out pregnancy-related conditions for higher deductibles or lower benefits. Pregnancy-related expenses should be reimbursable if other medical conditions are reimbursable, for example at reasonable and customary rates.
Pregnancy-related benefits may not be denied to unmarried employees when they are there for married employees. Fringe benefits for workers on leave should not be denied to those on leave for pregnancy-related conditions.
Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits. An employee should never be treated badly for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
Employers should post required notices relating to pregnancy protections under the law.
It is important to know your rights when it comes to pregnancy discrimination and improper penalties for taking leave to give birth, bond with a child, or deal with medical issues in a family. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.
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