Pregnancy Discrimination

 

It Happened to Me: Pregnancy Discrimination

 

What does the law in Mississippi say about pregnancy discrimination?

 

There are no specific state laws in Mississippi forbidding discrimination on the basis of pregnancy.

 

However, there are federal laws that protect women by prohibiting pregnancy discrimination. The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to include pregnancy as an illegal ground for discrimination.

 

Under federal law, what is illegal?

 

Title VII of the Civil Rights Act of 1964 forbids an employer from refusing to hire, terminating or "otherwise discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] sex..."

 

The law defines "because of [her] sex" to mean "because of...pregnancy, childbirth, or related medical conditions..."

 

Who is covered by Title VII?

 

Any employee who works for an employer with 15 or more employees and has faced discrimination because she is pregnant can bring an action under the law.

 

Who enforces Title VII?

 

The Equal Employment Opportunity Commission (EEOC) and the courts enforce Title VII.

 

I think I have been discriminated against because I am pregnant. What do I do now?

 

If you feel you are or have been discriminated against because of your pregnancy you can file a complaint with the Equal Employment Opportunity Commission (EEOC). They will complete an investigation on your behalf. If the commission finds "reasonable cause" to believe that discrimination has occurred they will attempt to work with your employer to remedy the situation. The commission has 30 days to reach an agreement with your employer. If, within this time, the EEOC's efforts do not fix your employer's discriminatory behavior, you will then be able to file a lawsuit. You are also able to file a lawsuit even if, after its investigation, the EEOC does not find "reasonable cause" to believe discrimination has occurred.

 

For specific next steps, see How do I File a Claim.

 

Does it matter when the discrimination occurred?

 

Yes. Title VII has a very strict time limit. You must file your charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of being discriminated against.

 

Determining distinct acts of discrimination can be difficult because you may not know right away that you have been discriminated against, or you might think there isn't strong enough evidence. Also, discrimination may not occur at one distinct time. Nevertheless, it is very important that you file your charge with the EEOC as soon as you suspect discrimination. If you wait to file your claim longer than 180 days after the discrimination occurred, it will be invalid.

 

How do I prove that I was discriminated against because I am/was pregnant?

 

If Equal Employment Opportunity Commission (EEOC) remedies prove ineffective, you can file a lawsuit in federal court. There is a three-part test to prove discrimination to the courts.

The first part has four sub-parts that you have to prove:

(1) You are part of a protected class. Women are a protected class.

(2) You were qualified for your position.

(3) You suffered what the law calls an adverse employment action. Adverse employment actions include not being hired, being fired, being demoted, or earning different wages or fringe benefits.

(4) Some one else who is not pregnant with similar qualifications was treated better than you were. For example, someone else got the job or earns more than you.

Once you have done this, your employer will have a chance to defend itself, by proving to the court that it had a legitimate, non-discriminatory reason for the adverse employment action.

Then you have to prove that the reason your employer gives is not true or what the court calls pretexual.

For more information on the steps involved in proving discrimination under Title VII at trial, see Disparate Impact/Treatment.

 

Can I use coworkers' negative comments about my pregnancy as proof of discrimination?

 

The court will consider spoken statements as evidence of discrimination if they demonstrate discriminatory motivation and are made by a person "primarily responsible for the adverse employment action or by a person with influence or leverage over the [person who makes firing decisions]."

 

The court has found discriminatory motivation (what the courts call "animus") when supervisors make comments based on stereotypes about a pregnant employee's ability to fulfill her job duties or comments that show a supervisor's "willingness to assume the worst."

 

EXAMPLE: a supervisor's comments towards a retail supervisor that her expected due date around the Christmas holiday shopping time was going to cause inconvenience were found to demonstrate discriminatory "animus." The precise statement was, "you realize this means that I have to pull other management out of other stores to cover your store, when, basically...this store should have been taken care of. What management do you think we're supposed to use?"

 

On the other hand, a coworker's comment to a pregnant woman who had been fired indicating she shouldn't get upset and should 'think of the baby' were considered by the court to be statements of concern and not evidence of discrimination. Also, a person with the power to fire or to influence the decision to fire did not make the comments.

 

How might my employer respond to my complaint?

 

Your employer may deny your allegations and tell the court that you suffered an adverse employment action, not because of your pregnancy, but because of your work performance, job skills, or attendance. Your employer may tell the court it has policies or procedures that you broke, which justifies your adverse employment action. Your employer may also tell the court it has set requirements regarding hiring, promotion, etc. that you did not fulfill.

 

If, once you file your complaint with the Equal Employment Opportunity Commission (EEOC) or after your lawsuit begins, your employer begins to act hostile to you or you suffer further adverse employment actions, you may be able to file another claim for retaliation.

 

How do I prove that my employer's reasons for my adverse treatment are not valid?

 

You need to show "substantial evidence of pretext," meaning the stated reason is just a cover for discrimination. By "substantial" the court means the evidence you use to refute your employer's excuse must be strong enough to make a reasonable person question your employer's reason. You need to show the reasons your employer gives for the adverse employment action are false, and you need to attempt to undermine their credibility.

 

EXAMPLE: When one woman's employer stated the reason for her termination was not because of her pregnancy, but because of a cumulative effect of several violations of policy, the woman was able to prove this was invalid by showing the trivial nature of the violations. Also, she proved that her supervisor authorized two of the violations. This employer also alleged that several complaints were made about the employee, but the court determined this reason was invalid because the company could show no proof of the complaints.

 

When might the court find in my employer's favor?

 

The court may find in your employer's favor when you break a policy, even if the policy is not always followed.

 

EXAMPLE: In one case, a pregnant health care provider argued that her employer required her to obtain a medical release from her doctor for missing one workday for a pregnancy-related illness. Even though other employees had not been required to supply a release after one absence, she lost her case. The court found that although requiring a release was atypical, it was part of official company policy and therefore not discriminatory.

 

Also, the court may find in your employer's favor if you miss work for reasons related to your pregnancy, specifically, if your absences are not in compliance with your employer's "no call/no show" policy. An example of a "no call/no show" policy is if your employer will consider you to have voluntarily resigned if you are absent from work for a given amount of days without notifying your employer of your absence.

 

EXAMPLE: When a female employee had to miss work for a week for a pregnancy-related illness, but had failed to make it clear to her employer that she would be out from work for a week, the court found that her termination was not discriminatory. In the court's words a violation of an employer's "no call/no show" policy is not a "pretexual" (invalid) reason for an adverse employment action.

 

If I prove my case and the court finds in my favor, what can I get?

 

The court may order your employer to stop any unlawful practice. It may also order your employer to hire or reinstate you. The court may also award back pay that accrued within two years of the filing of your claim. The court may reduce this award by any wages you did or could have earned during this time. You could also win other monetary damages such as those for front pay, mental anguish, and punitive damages. And finally, the court may also award you attorney's fees.

 

For more information, see What do I Get if I Win.

 

I did break a company policy, but I think I was also discriminated against on the basis of my pregnancy. Can I still bring a claim?

 

When there may be two motives for your employer's adverse action against you—a legitimate one (breaking company policy) and an illegitimate one (your pregnancy)—the court calls this a mixed-motive case.

 

The law says that as long as sex was a motivating factor, you have a claim against your employer, regardless of other factors that may be legitimate. What may be different is what you win. If there were legitimate reasons for the adverse employment action, along with the discriminatory motives, the court cannot give you damages or order your reinstatement, hiring, promotion, etc. However, you can get a declaration from the court stating you suffered discrimination and the court can order your employer to pay your attorney's fees.

 

The court recently clarified that in mixed-motive cases, you do not have to have stronger evidence or what the court calls a "heightened showing" of discrimination as compared to a case where sex discrimination was the only motive.

 

Can my employer fire me or refuse to hire me because I may become pregnant?

 

No. As long as you are able to fulfill the essential duties of your job while pregnant, your employer cannot fire you or refuse to hire you because of your potential to become pregnant, a current pregnancy or a pregnancy related condition. As stated above, Title VII prohibits firing and refusing to hire on the basis of sex, which includes pregnancy.

 

Is my employer required to make special accommodations for pregnant employees?

 

If your pregnancy hinders your ability to fulfill your job duties, you employer is required to make accommodations for you as it would, according to policy or custom, for any temporarily disabled worker.

 

Can my employer require that I take pregnancy leave?

 

No. Your employer cannot require you to be on pregnancy leave for a set amount of time after your baby's birth. Likewise, if you must take leave prior to the birth of your child for a pregnancy related illness and are able to return to work before the birth of your child, your employer must allow you to return.

 

If you are absent from work because of an illness related to your pregnancy, your employer can put you involuntarily on extended leave that may give you rights under the Family Medical Leave Act (FMLA). If your employer does this, it becomes your responsibility to follow through with the requirements of FMLA to be protected.

 

Can I challenge my employer's benefit or insurance program on the grounds that it is discriminatory?

 

Yes. Any benefit or insurance program that your employer provides must treat pregnant women the same as all other employees. Women who are pregnant are entitled to the same benefits as other non-pregnant employees.

 

Is my abortion covered under the Pregnancy Discrimination Act?

An employer does not have to pay for health benefits to cover an abortion unless your life is at risk or if you are suffering from medical complications from an abortion.

 

How much leave can I take because of my pregnancy?

 

This may depend on your employer's pregnancy leave, sick leave, vacation leave or paid time off policies.

 

However, a federal law called the Family Medical Leave Act allows you to take up to twelve weeks of leave within the twelve-month period after your child is born to care for him or her.

 

When should I tell my employer that I am pregnant and planning to take pregnancy leave?

 

This may depend on your company's policies. If you are going to take the 12 weeks you are entitled to under the Family Medical Leave Act, you must give your employer at least 30 days notice. If 30 days notice becomes impossible, you must give as much notice as is possible.

 

Can I get my job back when I return from pregnancy leave?

 

Once you return to work from leave authorized under the Family Medical Leave Act, your employer is required to give you the position you held prior to taking leave or an equivalent position with the same pay and benefits.

 

The only exception to this requirement is if you are in the highest paid 10 percent of employees within 75 miles of where you are employed. If this is the case, your employer may be permitted to not preserve your job if your employer would suffer serious "economic injury" if you were restored to your previous position, your employer notifies you of its intent not to restore you to your previous position, and you choose not to return to your employer after receiving notice.

 

Is my employer required to pay me while I am on pregnancy leave?

 

You employer is not required to pay you during the twelve weeks you are entitled to under the Family Medical Leave Act.

 

 

 

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