The Warshawsky Law Firm Blog

Tuesday, September 17, 2013

Can I Be Fired For Being Pregnant?

Being fired when expecting a child is one of the most difficult, upsetting, and unfair experiences that an employee can face.  Unfortunately, pregnancy discrimination occurs every day, at all levels of the economy, affecting blue collar and white collar workers – and their families – alike. 

For employees who are the victims of pregnancy discrimination, there are federal, state, and city laws that protect their rights and may allow them to get their jobs back and receive just compensation for the mistreatment they have suffered.

Pregnancy discrimination is a complex topic.  Anyone who believes she has been the victim of pregnancy discrimination should consult with a qualified employment lawyer immediately.

The U.S. Equal Employment Opportunity Commission (EEOC) defines pregnancy discrimination as “treating a woman (applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.” 

The main federal law protecting the rights of pregnant workers is the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964 to clarify that unlawful sex discrimination includes discrimination based on “pregnancy, childbirth, or related medical conditions.”  This law applies to private employers with 15 or more employees, federal, state, and local governments, labor unions, and employment agencies that supply workers to covered employers.  As the EEOC explains, the law “forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.”

The New York State Human Rights Law provides similar protection to pregnant employees who work for businesses in New York with 4 or more employees.  The New York City Human Rights Law likewise protects pregnant employees who work for businesses in New York City with 4 or more employees.

As a general rule, a covered employer must treat a pregnant employee in the same manner – no better and no worse – than other employees with similar abilities and limitations

This does not mean that pregnancy can be used as an excuse for poor attendance or poor performance or workplace misconduct.  An employer is permitted to discipline or fire a pregnant employee for legitimate reasons unrelated to her condition.

What may an employer not do?

An employer may not refuse to hire a job applicant who is pregnant or who plans to become pregnant.  Employers should not inquire about a job applicant’s pregnancy status or childbearing plans.

An employer may not fire an employee who is pregnant or who plans to become pregnant.  Employers may not base any employment decisions on the employee’s pregnancy status or childbearing plans.

An employer may not single-out pregnant employees for special conditions or procedures not required of other employees.  For example, sick leave policies must be applied the same to pregnant employees as non-pregnant employees.

An employer may not require pregnant employees to take maternity leave.  Pregnant employees must be permitted to work so long as they are able to perform their jobs.

An employer may not refuse to cover pregnancy-related conditions as part of a company’s health insurance plan.

An employer may not condition the receipt of maternity leave, health insurance benefits, or other privileges of employment on a pregnant employee’s marital status.

Is an employer required to provide “reasonable accommodations” for pregnant employees? 

No, unless the pregnant employee is considered “disabled” within the meaning of federal, state, or city law.  Generally, a “normal” pregnancy does not qualify as a disabling condition.  However, if the employer provides workplace accommodations for other employees with health-related conditions, then pregnant employees must be afforded the same consideration.

Is an employer required to allow pregnant employees to take maternity leave?

No, unless the employer is covered by the Family and Medical Leave Act (FMLA), which is a federal law that applies to businesses with 50 or more employees, federal, state, and local governments, and public and private elementary and secondary schools.  Under the FMLA, a pregnant employee who has worked the requisite number of hours is entitled to up to 12 weeks of job-protected leave for the birth of a child or to care for a newborn.   Currently there are no New York state or city laws comparable to the FMLA.  However, regardless of the FMLA, if the employer provides temporary or short-term disability leave, then pregnancy-related conditions must be treated the same as non-pregnancy-related conditions.

Do nursing mothers have the right to express breast milk at work?

Yes.  Under New York State Labor Law § 206-c:

An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the workplace.

This law applies to all public and private employers in the state, regardless of the size or nature of their business.

Under federal law, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207, was recently amended to add subsection r:

Reasonable break time for nursing mothers

(1) An employer shall provide –

(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

The FLSA applies to almost every employer in the country, including federal, state, and local governments, schools and universities, hospitals and institutions, and private businesses with annual sales or revenues of $500,000 or more.

If you or someone you know has been the victim of pregnancy discrimination, please contact The Warshawsky Law Firm today.


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