When an employee becomes pregnant, what are the laws which impact her in the workplace?
The two main federal statutes are the Family and Medical Leave Act (“FMLA”) and Title VII of the Civil Rights Act. (States may have their own laws, adding an additional layer, which will not be addressed here).
Which employees are eligible under the FMLA?
An employee must work for an employer who employs at least fifty people within a seventy-five-mile radius of the workplace. In addition, an employee must have worked for the same employer for 1,250 hours in the previous year. This effectively excludes part-time workers.
What benefits are covered employees entitled to under the FMLA?
Covered employees may receive twelve weeks of unpaid leave annually to care for a newborn baby, adopted child, an ill family member or their own serious health condition. An employee receives the same amount of unpaid leave for any of these reasons. In addition, the FMLA does not distinguish between maternity and paternity leave. Commentators maintain that the FMLA is underutilized because most covered employees cannot afford to take unpaid leave, and certainly two parents can ill afford to do so at the same time.
Congress passed the Pregnancy Discrimination Act of 1978 (“PDA”), which amended Title VII, to declare that discrimination “because of sex” includes discrimination “on the basis of pregnancy.” This includes the discriminatory failure to hire and promote, as well as preventing the exclusion of pregnancy from sickness and disability programs. As a result of the PDA, approximately 52% of female employees in large organizations now receive some wage replacement during maternity leave under their employer’s temporary disability insurance plan.
Pregnancy discrimination claims have been increasing over the last fifteen years. Much of the PDA litigation concerns benefits today. A new theory of discrimination on the basis of sex under Title VII is called “family responsibilities discrimination” (“FRD”). In essence, it alleges a Title VII violation when employers fail to treat mothers the same as fathers and childless employees. The Equal Opportunity Commission’s Enforcement Guidance provides narrative examples of these types of violations. One example is when an employer assumes that a woman with children will not meet the job’s duties and expectations without giving the woman a chance to prove otherwise or falsely assuming so.