What Are Your Legal Rights as a Pregnant Employee?
Discriminating against pregnant workers is not only archaic and uncaring, it is a clear violation of federal and Oklahoma laws.
That message may finally be getting through to employers. The Equal Employment Opportunity Commission received slightly more than 3,500 complaints of pregnancy discrimination across the country in 2013. That’s a notable improvement from more than 4,000 complaints in 2008.
The Pregnancy Discrimination Act (PDA) of 1978 outlaws discrimination against pregnant workers and job candidates when it comes to hiring, firing, pay and promotions, as well as any other term or condition of employment.
The PDA, a part of the Civil Rights Act, applies to employers with 15 or more workers. However, in addition to the federal protection of the PDA, Oklahoma’s own law provides protections that cover all employees.
The original Oklahoma Anti-Discrimination Act did not include pregnancy discrimination and it also applied only to employers with 15 or more employees. However, in 2009 the Oklahoma Supreme Court ruled that the law applies to all employers. The next year, the state Legislature amended the ADA to include the prohibition of pregnancy discrimination.
What is required and what is prohibited by the federal and state pregnancy discrimination laws?
1. A job candidate cannot be turned down because of pregnancy. When you apply for a job, you have no legal obligation to reveal that you are pregnant. If you are an employer, you should not ask (and you are setting yourself up for possible legal action if you do). Pregnancy should not be a factor in hiring decisions.
2. An employee cannot be fired because of pregnancy.
3. An employee cannot be deprived of health insurance coverage of pregnancy-related conditions. Employer-provided health insurance must treat pregnancies and pregnancy-related conditions in the same way and on the same basis as it treats other medical conditions. It is against the law to add a larger deductible for pregnancy-related expenses.
4. An employer must treat work limitations prescribed by a doctor for pregnant employees in the same way it treats the limitations of other temporarily disabled workers. If a doctor orders that a pregnant worker be restricted to light duty or temporary leave, and if the employer typically provides such accommodations to other employees when they are temporarily disabled, the employer must give pregnant workers the same accommodations.
5. Employers must not harass pregnant employees or tolerate such harassment by others. Illegal harassment is mistreatment that is so frequent and severe that it creates “a hostile work environment.” The law requires employers to protect pregnant workers from such harassment from supervisors, co-workers and even clients and customers.
6. A pregnant employee cannot be skipped over for a promotion because she is pregnant.
7. Many employees are entitled to pregnancy leave. The Family Medical Leave Act of 1993 allows certain employees to take 12 weeks of pregnancy leave and then return to their jobs without a reduction in pay or seniority. A pregnant worker may take leave when she is incapacitated by her pregnancy and/or to care for her newborn. A father may take leave to care for his spouse and child. Adoptive parents and foster parents may also take family medical leave.
The federal Family Medical Leave Act applies only to employers with 50 or more employees, as well as to all local, state and federal public agencies and to all public and private elementary and secondary schools. It applies only to employees who have worked for at least 12 months for their employer and who have worked at least 1,250 hours during the preceding 12 months (the equivalent of 24 hours per week for 52 weeks).
8. An employer cannot force a worker to take pregnancy leave. It is up to the woman, in consultation with her doctor, to decide when to go on pregnancy leave. As long as she is able to perform her job, an employer cannot force her to take leave.
Some employers have used forced leave to disguise the termination of a pregnant employee. Such employers have forced workers to take unpaid family leave too early during the pregnancy. The leave runs out before the pregnant worker or father is able to return to work, and then the employer uses failure to return to work as grounds for termination.
If a pregnant employee takes leave due to a pregnancy-related condition and then recovers and is able to return to work, the employer cannot prevent her from doing so.