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Employment Discrimination on the Basis of Pregnancy

PregnantWorkplace discrimination on the basis of pregnancy involves treating a woman, whether a job applicant or an employee, unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Similar to other types of discrimination, pregnancy discrimination may arise in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and other employment setting or condition.

Pregnancy discrimination cases are on the rise. In 2013, 5,342 pregnancy discrimination charges were filed with the Equal Employment Opportunity Commission (EEOC) and state and local fair employment practices agencies (a 27% increase since 1997.)  The discrimination may occur through employer actions, workplace harassment, or an employment policy.

Courts have found discriminatory conduct, for example, when employers discharged workers for expressing milk, being pregnant, or having employment policies containing “no work restrictions” requirements, resulting in the discharge of pregnant workers. Discrimination was also found when an employer made derogatory remarks and denied a pregnant employee’s request to accommodate her severe nausea and vomiting by moving her to an office closer to the bathroom.

 Federal, state and local laws regulating pregnancy discrimination

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment practices that discriminate against any individual because of such individual’s sex, among other factors. The Pregnancy Discrimination Act (PDA) amended Title VII to also forbid employee discrimination based on pregnancy when it comes to any aspect of employment. Under the PDA, an employer (or covered entity under the PDA) must treat a female employee unable to perform her job due to a medical condition arising from pregnancy or childbirth in the same way as it treats any other temporarily disabled employee.

In addition, some impairments resulting from pregnancy (e.g., gestational diabetes or preeclampsia) may be disabilities under the Americans with Disabilities Act (ADA) and may require an employer to provide a reasonable accommodation, subject to undue hardship.[1] Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child.[2] Moreover, nursing mothers may have the right to express milk in the workplace as provided by the Fair Labor Standards Act (FLSA).

Federal law also prohibits employers from retaliating against individuals who assert their legal rights.[3] The Equal Employment Opportunity Commission (EEOC) is the federal agency overseeing federal laws addressing pregnancy discrimination. The U.S. Department of Labor enforces the FMLA and the FLSA.

The Florida Civil Human Rights Act (FCRA) makes it illegal for an employer to discriminate on the basis of gender, among other factors. The Florida Supreme Court has ruled that FCRA’s ban on discrimination based on gender can also cover claims of pregnancy discrimination. (Delva v. The Continental Group, Inc., No. SC12-231, Fla. Apr. 14, 2014). For this type of discrimination, the statute covers employers with 15 or more employees. Also, although Florida law does not provide leave of absence for employees of private employers, state employees are protected under the Florida Leave of Absence Statute.  The Florida Commission on Human Relations (FCHR) is the state agency overseeing discrimination in Florida.

Employers should also be aware of local ordinances that may impose additional requirements on employers within the locality. For example, the City of Orlando’s anti-discrimination ordinance applies to employers with 5 or more employees working more than 30 hours per week, or more than 10 employees, irrespective of the number of hours worked per week. It makes it illegal to discriminate against an individual based on pregnancy, childbirth, or related medical conditions, among other factors. The City of Orlando’s Human Relations Review Board is responsible for evaluating complaints.

 Pre-employment inquiries

Questions during a pre-employment inquiry about an applicant’s pregnancy and medical history of pregnancy are generally viewed as “non job-related” and pose problems under Title VII, unless the question is justified under a “bona fide occupational qualification” (BFOQ) and is essential to a particular position or occupation.

 Reasonable accommodations for pregnant employees

Reasonable accommodations to pregnant employees or employees suffering from medical conditions related to pregnancy or childbirth may include light duty, alternative assignments, disability leave, or unpaid leave. According to the 2015 Supreme Court decision in Young vs. UPS, an employer must provide pregnant employees with reasonable accommodations if it does so for other temporarily disabled employees. In this case, a former truck driver for UPS sued her employer for pregnancy discrimination after she requested an accommodation and the company refused to provide it. The pregnant driver had been ordered by a medical professional to not lift heavy items while pregnant. She had requested (and was refused) a less demanding shift where she did not have to lift heavy objects.

 Discrimination on the basis of pregnancy through harassment or employment policy

Discrimination on the basis of pregnancy can occur through workplace harassment or through a discriminatory employment policy or practice. This form of illegal discrimination is a form of sex discrimination and often includes offensive remarks about a person’s sex and derogatory remarks about the person’s sex in general.[4]

An employment policy or pregnancy-centric practice that requires employees to inform the employer when they are pregnant, obtain a note from their doctor that they can work while pregnant, or require the employee to take leave while pregnant (or for a period thereafter) have been found to be discriminatory. However, an employer requiring all its employees to submit a doctor’s note concerning their ability to work before granting leave or paying sick benefits may also require employees affected by pregnancy-related conditions to submit such statements.

 Recovery

Recovery under federal law may include attorney’s fees, back pay, reinstatement or front pay, compensatory (e.g., emotional distress) and punitive damages. Liquidated damages, interest, and costs may also be available, depending on the claim.  In the case of employer retaliation, injunctive relief is also available. In addition, Florida state law allows the recovery of punitive damages, injunctive and/or affirmative relief (e.g., to stop the employer’s actions and/or make the injured employee whole).

Monetary damages for discrimination on the basis of pregnancy range from the tenths of thousands to millions of dollars. For example, in 2010, as part of a settlement of a lawsuit filed by EEOC, a government contractor agreed to pay $1.62 million to a class of 26 female security guards who were either asked to take leave or were discharged because they were pregnant. However, the award depends on the type of claim, the individual facts of the case, and how it is pursued. For additional information, see the Damages in Discrimination Claims blog article.

 Processing a Discrimination Claim

Due to the specific processes that must be followed and the applicable time limits for agency and court filing, it is in an employee’s best interest to become informed, including engaging the assistance of an attorney to assist in their discrimination matter.  An employer facing the defense of a discrimination claim should engage legal counsel to prepare for forthcoming administrative inquiries and potential litigation.

For more information on processing and managing a discrimination claim, see the Processing Claims with the EEOC and Processing Claims with the FCHR blog articles.

Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a pregnancy discrimination situation and offer legal representation, if necessary. Click here to contact an attorney now.

[1] See the Employment Discrimination on the Basis of Disability blog article for more information.

[2] See the Family and Medical Leave Act (FMLA) blog article for more information.

[3] The topic of retaliation is addressed in more detail in the Whistleblower Laws, Whistleblower Protection Act, and False Claims Act blog articles.

[4] See the Sex Discrimination blog article and Sexual Harassment blog article for more information.

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