Despite legal protections, it is not uncommon for pregnant women to experience discrimination or harassment at work. This can range from employers creating policies that limit or prevent expectant women from doing certain jobs to firing or not hiring women simply because they are pregnant or may become pregnant.
It has been unlawful for employers to discriminate against pregnant women since the Pregnancy Discrimination Act, PDA, was passed in 1978. Other federal laws such as the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) govern a pregnant woman’s rights on the job. Women may be provided with additional protection under state and local laws and various medical insurance laws.
The PDA, which amended Title VII of the Civil Rights Act of 1964, states that businesses with at least 15 employees must treat women who are pregnant the same as other employees or job applicants with similar abilities or limitations. For example, as long as a pregnant woman is able to perform the essential functions of her job, firing or not hiring her because she is pregnant is against the law.
It is illegal to require a pregnant woman to take time off or dock her pay, and an employer cannot deny a woman a promotion or demote her to a lesser position because of pregnancy. In addition, employers are required to reinstate an employee post-pregnancy in the same way they reinstate those with other temporary disabilities.
The Family and Medical Leave Act, FMLA, protects workers who are employed by larger companies. Employers with 50 workers or more must provide eligible employees with 12 weeks of unpaid, job-protected leave for specified family and medical reasons with continuation of health insurance coverage. Reasons include pregnancy and childbirth, caring for a newborn child and caring for a newly adopted or newly placed foster child.
Most states also prohibit pregnancy discrimination and many expand the rights of pregnant workers. The New Jersey Law Against Discrimination prohibits discrimination on the basis of pregnancy and applies to all employers other than religious organizations. The law also gives pregnant women the right to accommodations that will allow them to do their jobs without jeopardizing their health, such as breaks for increased water consumption, assistance with manual labor, modified work schedules and temporary transfers to less strenuous or hazardous work. An employer cannot penalize an employee for requesting or using an accommodation.
New Jersey’s Family Leave Act requires public employers and private employers with 50 or more employees to allow workers to take up to 12 weeks of unpaid leave in a 24-month period for, among other things, the birth or adoption of a child. This leave can begin at any time within a year after the date of the birth or placement for adoption. However, the law does allow employers to exclude employees from this benefit if they are among the highest five percent, or seven highest (whichever is greater), of the employer's paid salaried employees.
If you believe your employer has discriminated against you because of pregnancy or a pregnancy-related condition, you have the right to file a charge of discrimination under New Jersey by filing a lawsuit in state court, or with the New Jersey Division on Civil Rights (“DCR”). The DCR is the New Jersey agency that enforces the New Jersey Law Against Discrimination. Alternatively, you can file a federally based complaint with the Equal Employment Opportunity Commission (“EEOC”) The EEOC is the federal agency that enforces many anti-discrimination laws, including the PDA.
An experienced attorney can help you learn more about your workplace rights during pregnancy and what to do if you think your rights have been violated. Please call me with your questions or concerns at 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.