Pregnancy Discrimination Claims

 

I think my employer is discriminating against me because I am pregnant.

 

It happened to me: A Real Life Story

 

a. What is pregnancy discrimination and does Massachusetts law cover it?

 

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

 

c. I just found out that I’m pregnant, should I tell my employer?

 

d. Can my employer fire me because I may become pregnant?

 

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

 

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

 

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

 

h. Can my employer deny me pregnancy leave?

 

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

 

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

 

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

 

l. Can an employer refuse to hire me because I may become pregnant?

 

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

 

n. Does my employer’s health insurance have to cover the medical costs of my pregnancy?

 

o. Can my employer move me to another position while I am pregnant so as not to offend clients or customers?

 

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

 

q. I was pregnant, but had a miscarriage or an abortion, and need time off to recover. Am I covered by the law?

 

r. What could my employer do to deny my allegations, and how do I respond to its denials?

 

s. Does it matter how long ago the discrimination occurred? (new window to WDTLS)

 

t. What options do I have if I my employer has fewer than 6 employees? (new window to WDTLS)

 

u. If I prove my pregnancy discrimination claim, what kind of remedies am I entitled to? (new window to Remedies)

 

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a. What is pregnancy discrimination and does Massachusetts law cover it?
Whenever a woman is discriminated against based on her pregnancy, pregnancy-related illnesses or disabilities, or likelihood of becoming pregnant, this is pregnancy discrimination. In Massachusetts, pregnancy discrimination is considered a form of sex discrimination and is illegal under Ch.151B. In addition, Massachusetts law provides for maternity leave and prohibits employers penalizing a woman because she took maternity leave. This statute also covers women who take leave to adopt a child.

 

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b. I think I am being impacted or treated differently because of my pregnancy. How do I prove it?
To prove pregnancy discrimination, you must be able to show that you are a member of a protected class (women), that you performed at an acceptable level (or were capable of doing so), that you were treated differently because of your pregnancy (this might include being fired or being denied a promotion), and that your employer replaced you with a person similarly qualified. In addition, under Massachusetts law, if you returned from maternity leave to a lesser position or lesser status (including seniority), you can sue for discrimination.

 

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c. I just found out that I’m pregnant, should I tell my employer?
You are not required to, nor can your employer fire you or discriminate against you in any way based on your pregnancy. As to whether or not you should tell your employer, that’s a personal decision for you to make, but remember that you are protected against discrimination in either case.

 

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d. Can my employer fire me because I may become pregnant?
No – the ability to become pregnant is a characteristic specific to the female sex, and any illegitimate employment decision based on sex is illegal.

 

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e. Can I ask my employer to make accommodations for me on account of my pregnancy?
If your employer has a short-term disability leave policy, it must apply to pregnancy-related disabilities, as well as other disabilities. Note: this is not the same thing as maternity leave. Employers are not required to provide paid maternity leave in Massachusetts.

 

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f. For what amount of time can I take leave because of pregnancy?
Massachusetts law Ch. 105D provides for eight weeks of maternity leave to any female employee who:

 

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i. has completed the initial probationary period, if one exists , or, if there is not probationary period, ii. has been employed full-time for three consecutive months at the same employerEmployees must give two weeks advance notice, including their anticipated date of departure and their intent to return. Maternity leave may also be taken by female employees who are absent for the purpose of adopting a child. If your employer has over fifty employees, you may qualify for twelve weeks of leave under the Family Medical Leave Act.

 

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g. What happens to my job while I am on pregnancy leave?
Under Ch. 105D , your employer is required to return you to the same or similar position when you return from maternity leave, with no changes in pay, status or seniority. However, if during your maternity leave, other employees who are in the same or similar position, with a similar status or seniority, have been laid off for legitimate business reasons, your employer is not required to restore you to your position.

 

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h. Can my employer deny me pregnancy leave?
If you meet the criteria of Ch. 105D of 1) having completed the initial probationary period or, if your company does not have an initial probationary period, you have been employed for 3 months, and 2) have given 2 weeks notice to your employer of your intended departure and return date, your employer is required to give you up to eight weeks of maternity leave.

 

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i. I’ve been missing a lot of work due to prenatal check-ups or pregnancy-related complications; can my employer fire me for this?
Your employer is required to allow you to use sick time for pregnancy-related illnesses or disabilities. If you have not been using sick time or don’t have enough sick time, then your employer may be allowed to fire you for absenteeism. However, if this reason is merely an invented reason to cover for firing you because of your pregnancy, you may still have a claim of sex discrimination.

 

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j. Is my employer required to pay me while I am on pregnancy leave?
No. Ch. 105D specifically states that maternity leave may be paid or unpaid, at the employer’s discretion. However, if your employer would have provided a paid leave for a similar purpose (for example, surgery or short-term illness) for a male employee, then your employer is required to pay you during your maternity leave. In addition, if you have accumulated sick time, your employer must allow you to apply those sick days to your leave, although you may only do so for the period during which you are physically disabled and unable to work.

 

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k. I’m pregnant but not showing yet and I have an upcoming interview, do I need to disclose the fact that I’m pregnant?
You are not required to. If you are asked about pregnancy in an interview, that may be considered discrimination in itself, because an employer cannot refuse to hire you on the grounds that you are pregnant.

 

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l. Can an employer refuse to hire me because I may become pregnant?
No – the ability to become pregnant is a characteristic specific to the female sex, and any illegitimate employment decision based on sex is illegal.

 

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m. Can my employer prevent me from working while I’m pregnant or require me to take a certain amount of leave?
That depends. Your employer could require you to provide a note from your doctor that says that you can continue to do your job. However, your employer cannot require you to resign or to take a certain amount of leave based solely on your pregnancy (although your employer could require you to take some leave, if you are unable to work). In a case called Butner, female state troopers had a legitimate claim for discrimination when they were automatically assigned to reduced-duty, which meant fewer benefits and no overtime, because of their pregnancy, despite doctors’ approval of their continuing to work.

 

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n. Does my employer’s health insurance have to cover the medical costs of my pregnancy?
Your employer is not required to cover your medical costs, nor provide health insurance or other benefits while you are on maternity leave. However, if your employer provides those benefits for other employees on other types of leave, your employer must provide those benefits to you as well. For instance, if a male co-worker takes a leave of absence to have surgery and your employer maintains his health insurance during his leave, your employer cannot refuse to do the same for you if you take maternity leave.

 

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o. Can my employer move me to another position while I am pregnant so as not to offend clients or customers?
No. Customer preference is not considered a legitimate business reason, so an employer may not justify otherwise discriminatory conduct on the basis of customer preference.

 

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p. Can my employer treat me differently because I am unmarried and pregnant?
No. Your employer can’t fire you for being pregnant unless there is some legitimate business reason for doing so.

 

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q. I was pregnant, but had a miscarriage or an abortion, and need time off to recover. Am I covered by the law?
If your employer has a short-term disability leave program, it must cover your pregnancy-related disability. However, if your employer doesn’t have such a program, you should still be able to take sick leave, if you have accrued sick days. If you do not, your employer may be able to deny you leave. However, again, if your employer would allow or has allowed a similar leave for other employees, including male employees, (for example, to recover from an injury), denying you could constitute discrimination.

 

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r. What could my employer do to deny my allegations, and how do I respond to its denials?
In Massachusetts, there are three steps to proving a case of discrimination. First, you must provide evidence which, if everything you alleged was true, would prove that your employer discriminated against you. This is called your "prima facie case." Next, your employer will be given an opportunity to produce a "plausible, legitimate and nondiscriminatory justification" for its conduct. Finally, you must rebut your employer’s argument and show either that the actual motivation was discriminatory or that the employer’s proffered reason for its conduct was pretext (a false or invented reason advanced to cover for a real, discriminatory reason). At all times, it is your responsibility to prove that discrimination was a "determinative factor" in the employer’s decision to fire you, for instance. However, "determinative factor" does not mean that discrimination was the only factor. You are not required to disprove all possible reasons that your employer could have had for firing you, only that the reason your employer produced is not the real reason. If, for instance, you succeed in persuading the court that your employer’s proffered reason was pretext, you should prevail in your case. In the end, the judge or jury will weigh all the evidence and decide if there is enough evidence to infer discriminatory intent on the part of your employer.

 


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