Workplace Rights

Weekly (12/23/19)

Topic of the Week  Parental Leave

  • Which federal laws cover pregnancy leave discrimination?
  • Is my employer required by law to offer pregnancy leave?
  • Can my employer prevent me from working while I'm pregnant or require me to take a certain amount of leave?
Which federal laws cover pregnancy leave discrimination?

The federal laws that prohibit pregnancy discrimination and provide for disability and parenting leaves are Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978, (see § 2000e(k) for the specific language concerning pregnancy) and the Family and Medical Leave Act of 1993.

Title VII covers many forms of discrimination you may encounter because of your sex in decisions about hiring, firing, work assignments and conditions, promotions, benefits, training, retirement policy and wages. In 1978, Congress passed the Pregnancy Discrimination Act (P.D.A.) (see §2000e(k) of Title VII) amending the law in order to clarify that discrimination based on pregnancy is a form of sex discrimination. Title VII prohibits employers from treating pregnant women or temporarily physically disabled new mothers differently from other temporarily sick, injured or disabled employees, including discriminatory leave practices.

In 1993, Congress enacted the Family and Medical Leave Act (FMLA). The FMLA guarantees an employee, male or female, who has been working at least a year for a company with 50 or more employees the right to job-protected, 12-week, unpaid leave to recover from a serious medical condition -- including pregnancy -- or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. Under the FMLA, you have the right to take this 12 week unpaid leave every year, and to have your health benefits maintained during your leave. The FMLA also guarantees that at the end of the leave you will be given the same job you left or another job equivalent in pay, benefits and other terms and conditions. For more information about FMLA, see our page on family leave.

A denial of pregnancy leave may violate Title VII, the Family and Medical Leave Act, or both laws, depending on whether an employee qualifies for protection under each law and the nature of the employer's conduct.

Is my employer required by law to offer pregnancy leave?

It depends. As to the time a woman is unable to perform work because of pregnancy and childbirth, the law requires only that an employer treat pregnancy the same way that other temporary disabilities are treated. If employees are allowed to use leave (such as sick leave or short-term disability leave) when temporarily disabled by illnesses or injury (such as broken limbs, minor surgery, or the flu), due to an inability to work and/or need for medical care, then pregnant employees are entitled to take leave during the time they are similarly disabled.

However, employers are not required to treat pregnancy more favorably than they treat other temporary disabilities. If an employer does not provide leave for temporary disabilities and temporarily disabled employees must take leave without pay, be docked for absences, and/or face termination after a certain number of absences, then pregnant employees may risk the same consequences for pregnancy-related absences.

The law also doesn't prohibit employment decisions based on an employee's conduct that may be caused by pregnancy. For example, an employer doesn't have to treat an employee who was late due to morning sickness any better than an employee who was equally late for a different health reason.

However, employers of 50 or more employees may be required to comply with the FMLA and allow employees to take unpaid leave for pregnancy, childbirth, and child-rearing following the birth of a child.

Can my employer prevent me from working while I'm pregnant or require me to take a certain amount of leave?

Although some companies tell pregnant women that they must leave work a specified amount of time before their due date, it is illegal for an employer to force you to go on maternity or disability leave while you are still able to work. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If you have been absent from work as a result of a pregnancy-related condition and you recover, your employer may not require you to remain on leave until the baby's birth. Also, an employer may not have a rule preventing you from returning to work for a predetermined length of time after childbirth.

If you are unable to perform certain aspects of your job, such as heavy lifting or working with toxic chemicals, your employer must accommodate you to the same extent it accommodates other temporarily disabled employees, such as providing “light duty,” shifting certain job duties to other employees, or permitting transfer to a vacant position. For example, if a coworker disabled by a back injury subject to a lifting restriction was shifted to another position not requiring heavy lifting or was given modified job duties such that lifting was no longer required, a pregnant employee should be similarly accommodated. In the recent case of Young v. UPS the Supreme Court held that a pregnant woman can make a showing of discrimination by proving that she sought an accommodation, that the accommodation was denied, and that her employer accommodated others similar in their inability to work. An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work, but may use any procedure used to screen other employees' ability to work. For example, if an employer requires employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Thought of the Week

"Women are historically more likely to work part-time than men, often because of caregiving responsibilities. That usually means foregoing paid time off after giving birth. Millions of construction workers, retail workers, public school teachers, warehouse and transportation workers and restaurant employees have to forego paychecks to take time to care for a new child."

–U.S. Bureau of Labor Statistics

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from Bureau of Labor Statistics

    Access to paid and unpaid family leave in 2018

    • 16% of private industry workers had access to paid family leave, and 88% had access to unpaid family leave.
    • 11% of workers in the smallest establishments (1 to 49 workers) had access to paid family leave, and 80% had access to unpaid family leave.
    • 25% of workers in the largest establishments (500 workers or more) had access to paid family leave, and 94% had access to unpaid family leave.


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