Pregnancy Discrimination Claims

 

It happened to me: A Real Life Story

 

 

What is pregnancy discrimination and does Illinois law cover it?

 

Pregnancy discrimination occurs when a woman is discriminated against because she is pregnant, suffering from some pregnancy-related illness, or is suspected of becoming pregnant in the future.

 

Under the Illinois Human Rights Act, women are protected from being discriminated against based on pregnancy. The Illinois Human Rights Act prohibits discrimination on the basis of sex, and courts have found that sex encompasses pregnancy because it is a condition unique to the female condition.

 

Under federal law you are also protected from being discriminated against under the Pregnancy Discrimination Act (PDA) and the Family Medical Leave Act (FMLA).

 

 

I think I am being impacted or treated differently because of my pregnancy? How do I prove it?

 

To prove that you have been discriminated against because you are pregnant you must prove the four following factors:
(1) You are a member of the protected class (as a woman you are member of a protected class);
(2) You met your employer's expectations(this can be shown through performance evaluations, raises or promotions. If you plan on bringing a suit you should keep a record of such material and any feedback you receive from your superiors);
(3) You were subject to adverse actionAdverse action can include being fired, demoted, passed over for a promotion or not being hired for a position; and
(4) Other similarly situated employees who were not members of a protected class were treated more favorably.

If you are able to prove all four of the factors above, then your employer must show that you were fired for a legitimate non-discriminatory reason that was not pre-textual. Pre-text is a false reason given by the employer for the action to cover up the real discriminatory reason for the action. If your employer puts forward a legitimate non-discriminatory reason, you must show that their reason is pre-textual. If you are able to do this, you will have a valid claim in court and a chance of succeeding on your case.

 

 

I just found out that I'm pregnant, should I tell my employer?

 

It is your personal decision whether or not to tell your employer. However, if your employer does not know about your pregnancy and you suffer an adverse action, you will be hard pressed to prove that your pregnancy motivated your employer's action. In order to prove your case, you must show that your adverse action was motivated by employer's discriminatory intent, and this is usually shown by a short time span between employer's knowledge of your condition and adverse action. Also, under the Family Medical Leave Act ("FMLA") you are required to give your employer 30 days notice when the leave is reasonably foreseeable. Pregnancy leave would be reasonably foreseeable. For more information about the FMLA, please see "Family Medical Leave Act" under the Federal Laws section.

 

 

Can I ask my employer to make accommodations for me on account of my pregnancy?

 

Under the IHRA and the PDA, the employer is required to ignore the employee's pregnancy. In other words, while you may ask for accommodation (such as a reduced work schedule), your employer is not required to meet your requests because they are only required to treat you like all other non-pregnant employees.

 

 

For what amount of time can I take leave because of pregnancy?

 

Under the Family Medical Leave Act ("FMLA"), employers are required to give you up to 12 weeks of leave if you have worked for you employer for 12 months and for at least 1,250 hours. However, the FMLA only applies to employers who employ more than 50 employees. For more information about the FMLA, please see "Family Medical Leave Act" under the Federal Laws section.

 

 

What happens to my job while I am on pregnancy leave?

 

While on FMLA-approved leave, your job is still yours. Upon return from FMLA leave, you must be restored to your original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

 

 

Can my employer deny me pregnancy leave?

 

If you employer is covered by FMLA (meaning they employ more than 50 employees) they cannot deny you 12 weeks unpaid leave. However, if you work for a smaller company that is not covered by the FMLA, it is their decision whether or not to grant you the leave.

 

 

I've been missing a lot of work due to prenatal check-ups or pregnancy-related complications; can my employer fire me for this?

 

Under both the IHRA and the federal PDA, an employer is required to treat pregnant employees like all other employees. An employer is not required to overlook your absences if they do not overlook the absences of non-pregnant employees. If you have excessive absences as a result of your pregnancy, whether it be for doctor's appointments or morning sickness, you can be fired.

 

 

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

 

No, under the FMLA, all leave is unpaid. However, in certain circumstances and depending on your employer, you can use accrued sick and vacation time to be paid for at least a portion of your leave.

 

 

I'm pregnant but not showing yet and I have an upcoming interview, do I need to disclose the fact that I'm pregnant?

 

Under the FMLA, you have to be employed by your employer for 12 months in order to be eligible for leave, so if you are already pregnant you might want to disclose this information to your potential employer in order to negotiate leave time. However, you are not required to disclose that you are pregnant if you do not want to.

 

 

Does my employer's health insurance have to cover the medical costs of my pregnancy?

 

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave, whenever such insurance was provided before the leave was taken and on the same terms as if you had continued to work.

 

 

Can my employer treat me differently because I am unmarried and pregnant?

 

No, an employer can not treat you differently because you are married irregardless of whether you are married or not. Under the IHRA and the PDA you have to be treated the same as all non-pregnant employees.

 

 

Does it matter how long ago the discrimination occurred?

 

Yes. You must file within 180 days from when the incident occurred. Employers must answer the allegations within 60 days or risk a default judgment.

 

 

What options do I have if I my employer has fewer than 15 employees?

 

The Illinois Human Rights Act generally does not apply to employers with less than 15 employees. The exceptions are the State of Illinois, other Illinois government agencies, any company with a public contract, apprenticeships, and training committees, which have no requirement about the number of employees.17 Certain employers such as religious corporations, associations, non-profits, and educational institutions are excepted.

 

For leave purposes, if you your employer employs fewer than 50 employees then you are not guaranteed maternity leave.

 

 

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