Employer's Guide to Discrimination: Pregnancy Discrimination
by NicoleD, Former Moderator
- Created: September 3, 2009, 7:50 pm
- Updated: February 18, 2011, 11:59 am
Employers with 15 or more employees are required to comply with the Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964. Title VII states that discrimination on the basis of pregnancy, childbirth, or related medical conditions is a form of sexual discrimination. Below is guidance for employers on how to navigate the law and avoid potential discrimination lawsuits.
Offering Leave: The Basics
Employers cannot force pregnant employees to take maternity leave. Pregnant employees must be permitted to work as long as they are able to perform their jobs. The following is quick breakdown of paid and unpaid leave practices.
- Paid leave
There is no federal law that requires paid time off to new parents. Several states provide paid time off for time employees who are physically unable to work. This paid leave is offered through the state's temporary disability insurance program, and is funded by withheld taxes from employee paychecks, not the employer. However,if an employer provides paid personal or medical leave to other workers, like those on temporary disability for medical reasons, the employer must make paid leave available to pregnant employees.
Similarly, if employees are given personal or vacation leave, they must be allowed to use that time as parental leave, provided they meet required leave requirements, such as giving timely notice.
- Unpaid leave
The Family Medical Leave Act (FMLA) requires employers with 50+ employees to provide up to 12 weeks of unpaid leave per year, for the birth or care of a new child, either by birth, adoption, or foster care, or for recovery from a serious pregnancy-related health condition.
According to the Department of Labor, an employee is eligible under the FMLA if they have worked for their employer for at least 12 months, and have worked for at least 1250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.
Some states may grant an extension of FMLA leave if a pregnant employee's condition is declared maternity disability - if the employee is unable to work due to pregnancy and childbirth. The employee's doctor will usually determine if and when medical leave is required. If a set of parents work for the same employer and are married to each other, their employer may restrict them to a combined total 12 weeks of parental leave. However, if one of the employees takes time off for another reason under the FMLA, (for example, a serious pregnancy-related complication) the other spouse will still be entitled to their 12 weeks of paternal leave.
When an Employee Returns from Parental Leave
An employer may not stop their employee from returning to work for a predetermined length of time after childbirth. Employers must reserve a job during a pregnancy-related absence for the same length of time jobs as the employer would for employees on sick or disability leave.
Some employees may choose to use their FMLA leave as parental leave, during the first year after the birth, adoption, or foster placement of their child. If an employee wishes to work part-time or divide up their FMLA leave into chunks, a flexible work arrangement may be made with the employer's approval.
Discrimination: Workplace Policies
Employees with pregnancy-related conditions must be treated equally as other temporarily
disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
Similar to other discrimination policies, an employer cannot refuse to hire a pregnant woman because of her pregnancy or pregnancy-related condition. It is also discriminatory for an employer to fire or demote an employee because she is pregnant.
If an employer offers any time off (paid or unpaid) for the care of a new child, it should be referred to as paternal leave, not maternity leave, and be available to both fathers and mothers. Any benefit that is offered to a single gender can be grounds for discrimination.
Related Resources You can read more on these related resources:
- Employment & Labor Law Guide
- Employee Benefit Plans: What's the Law and What's Optional?
- Aren't Lunch Breaks Required?
Message Edited by NicoleD on 09-03-2009 07:51 PM
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