Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. In Massachusetts pregnancy discrimination is made unlawful under the Federal Pregnancy Disability Act (PDA). The PDA applies to women who work at jobs employing 15 or more employees.
The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
If you win your case under the Pregnancy Discrimination Act your employer will have to pay your legal fees. However, we take all cases on a contingency and advance all litigation costs which means you only pay our legal fees when or if we win. The fact the employer will be liable for attorney fees and costs often motivates settlement. In those cases it motivates settlements for more than the employee’s actual damages because the employer knows it is ultimately liable for the employee’s attorney fees and costs if the case goes all the way through binding arbitration or jury trial.
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. Firm founder, Karl Gerber, has successfully tried and arbitrated cases in which employers have refused reasonable accommodations for women temporarily disabled due to pregnancy.
Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Pregnancy harassment does not go over well with juries. Karl Gerber won a California pregnancy harassment case in which a warehouse worker was forced to violate her lifting restrictions and the company otherwise was disrespectful to the fact she was pregnant. In that California jury trial the jury found the employer was liable for punitive damages because their pregnancy harassment was done with malice, oppression, or fraud. He has also settled pregnancy harassment cases for multiple hundreds of thousands of dollars.
Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.
An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees. Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. Nursing mothers may also have the right to express milk in the workplace under a provision of the Fair Labor Standards Act enforced by the U.S. Department of Labor’s Wage and Hour Division. Click here to read our article on Family Medical Leave Act Leaves of Absence.
Call 1-877-525-0700 to speak to a Massachusetts pregnancy discrimination lawyer who cares!