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How to protect your practice against costly pregnancy discrimination claims

“I’m having a baby!”

When an employee utters those words, it’s time for congratulations. It’s also time for caution. The danger is pregnancy discrimination, and it happens often because employees are well attuned to their rights. The protection comes from the Pregnancy Discrimination Act, which is an amendment to Title VII of the Civil Rights Act. It applies to offices with 15 or more employees. And many states extend the same protection to offices with even fewer employees.

What does the law say?

The Pregnancy Discrimination Act (PDA) says an employer can’t discriminate on the basis of pregnancy, childbirth, or related medical conditions. It says that with a pregnancy-related absence, the woman’s job has to be held open for the same amount of time required for sick or disability leave. The individual has to come back to a job with the same position and pay. It states too that an employer can’t refuse to hire a woman because of her pregnancy or pregnancy-related condition.

It forbids harassment about the pregnancy. And it prohibits retaliation against anybody who complains about discrimination or harassment.

Pay attention to state laws on pregnancy protection as well. Many states provide even greater protection; and when state law is more stringent, it trumps federal law. The stricter law prevails. With pregnancy, the Family and Medical Leave Act comes into play as well because it allows leave for childbirth and adoption. However, the two laws are quite separate. The PDA is a discrimination statute; the FMLA is a leave statute.

Pregnancy an impairment?

The most important point managers need to be aware of is that pregnancy has to be treated the same as a temporary impairment or disability. Too often that doesn’t happen. It’s not uncommon, for example, to see a manager give light duty to someone with, say, a broken leg but not to someone who is pregnant.

That type of discrimination can happen easily in a professional organization where many staff report to different bosses. Doctor A makes accommodations for her assistant who broke a leg in a car accident but Doctor B doesn’t make accommodations for his pregnant assistant.

What about attendance during the pregnancy? Unless state law says otherwise, the office can require the same attendance as always. Also, if there are going to be frequent doctor visits, it can ask the mother to schedule them during “the least disruptive times” so the workflow isn’t interrupted. But, as usual, apply that equally across the board. If the office requests that for pregnancy, it should request the same for all situations that require frequent medical visits, such as treatment for allergies or chronic back problems.

And here’s the catch

Another caution is to be on the lookout for inappropriate behavior toward pregnant employees. The behavior can be malicious and intentional, perhaps a lewd a comment such as, “My-oh-my, we’ve been busy, haven’t we?” or an inappropriate action such as rubbing the woman’s belly. But it can also be innocent and unintentional. A manager might make an embarrassing reference to the pregnancy such as, “How are you feeling?” or, “Morning sickness again, eh?” Even talking about the pregnancy too much can be risky. That doesn’t mean the office has to pretend the pregnancy doesn’t exist, however. In fact, doing that can also lead to a discrimination claim that the employer wasn’t sensitive enough because no questions were asked.

While all that seems like a bunch of contradictions, there is a safe road to take. When an employee announces she is pregnant, recognize the situation. Say, “Congratulations.” Then say that the office will provide whatever assistance is required by law. Phrase it as, “If something about your health comes up and you need assistance, please let me know.” That’s the appropriate thing to say to anyone who has a temporary disability because it makes no assumptions about what the person can or cannot do.

One final caution

Can the office ask the mother if she will continue working after the baby is born? Not really. It is appropriate to ask if she will take leave after the baby is born. But it’s not appropriate to ask what her plans are after having the baby – if she plans to quit, or come back full time or part time.

What’s the difference between asking about leave and asking about plans? Asking about leave is not personal but business related. Asking about plans, on the other hand, “Draws on stereotypes about women.” It implies that the woman will probably quit after having the child. And that can be the basis for a discrimination claim.









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