Avoiding Pregnancy Discrimination

How should you treat a pregnant employee or job applicant to avoid liability for pregnancy discrimination? There's a short answer to that question that covers the entire topic: just exactly like you would an applicant or employee with any other health condition that (1) may (but doesn't necessarily) affect their job performance and (2) necessitates their having to take some time off from work. Of course, how you may treat employees with medical conditions -- whether pregnancy or anything else -- is controlled by federal and state laws.

Before Congress passed the Pregnancy Discrimination Act (PDA) in 1978, it was fairly common for employers to terminate a woman who became pregnant, because the employer believed that she could no longer do the job effectively or that it was too dangerous for her to continue in the job or that clients or customers preferred to deal with non-pregnant employees, and other such reasons mostly based on stereotypes. It was common as well for employers to take pregnancy as a sign that a woman wasn't sufficiently committed to her job or that she wouldn't be able to stay late or travel or engage in other job-related activities that male employees were expected to perform. Consequently, the employer didn't give her the same promotion, training, and other opportunities given to male employees with similar qualifications. All these actions became unlawful in 1978 -- although in some workplaces there may still be managers making unlawful decisions based on such outmoded thinking.

The Pregnancy Discrimination Act makes it illegal for an employer to take any of the following actions:

• Refuse to hire a woman because she is pregnant, if she is qualified for and able to do the job.


• Fire a woman because she is pregnant.


• Require a pregnant employee to cease working if she is willing and able to work.


• Single out pregnancy or pregnancy-related conditions in determining an employee's ability to work. However, you may use any procedure used to screen other employees' ability to work. For example, if you require employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, you may require employees affected by pregnancy related conditions to submit such statements.


• Maintain any rules about how long before a birth a pregnant employee may work or a predetermined length of time the employee must or may take off from work after childbirth.


• Stop the accrual of seniority for an employee who has taken a leave to give birth, unless seniority doesn't accumulate for other employees out on disability leave of absence.


• Prohibit an employee from returning to work for a predetermined length of time after childbirth. You may, however, specify a "normal" period of leave, provided that it can be shortened or lengthened to reflect the individual's physical condition following childbirth.


• Refuse to reinstate an employee who has taken maternity leave, unless she has informed you that she does not intend to return to work. Otherwise, you must hold her job open for her on the same basis as you do for employees returning from sick or disability leave.


• Fail to provide the same benefits to employees on leave for pregnancy-related reasons as you. do those on leave for other medical reasons- including disability pay, pension or profit-sharing payments, and payments for health or other insurance premiums.


• Refuse to change or adjust a pregnant employee's job assignment if she is temporarily unable to perform some or all of the functions of her job because of her physical condition. You must give the same accommodation to pregnant women that you would give to any other temporarily disabled employee--modifying tasks, providing alliterative work assignments, or simply relieving her of the functions that she cannot perform safely.

If you're an employer subject to the Family and Medical Leave Act, your FMLA policy should cover an employee who seeks pregnancy-related leave. There may also be state laws that provide leave rights. If you have the appropriate FMLA policy, treat the employee who wants pregnancy leave within the terms of the policy. Years ago, many employers maintained a "maternity leave policy." These days that would be a mistake, since it suggests that there's something different about maternity from other types of temporary-disability leave.

There are a number of situations that may arise which should only be addressed after consulting with an expert in the human relations department or legal counsel. For example, if a pregnant employee has had an absenteeism problem before becoming pregnant and the problem gets worse during pregnancy, any discipline must be carefully managed so as not to give an appearance of treating the employee differently because she is pregnant. Other possible problem issues are passing over employees for promotion or laying off employees when they are pregnant or on leave.

Training Reduces Exposure

Discrimination is a sensitive and costly problem that is becoming all too common in many workplaces. By providing discrimination prevention training to your employees and managers on a regular basis, you'll reduce your organization's expose to this costly problem and create a safer workplace.