F. Pregnancy Discrimination

A significant problem facing employers is the impact that pregnancy discrimination and related leaves, child care and disabilities play in their financial bottom line. Many companies are being sued by employees claiming sex discrimination based on preferential treatment. And, due to the enactment of numerous state laws and the federal Family and Medical Leave Act, larger companies are required to provide increased maternity and paternity leaves for their employees.

A company cannot treat pregnancy-related disability or maternity leave differently from the way it treats other forms of disability or leaves of absence. To do so violates both federal and state discrimin- ation laws. The Pregnancy Discrimination Act of l978, an amendment to Title VII of the federal Civil Rights Act of l964, prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions. The law requires employers to review their leave, benefit, job reinstatement and seniority policies to ensure that they treat pregnancy-related disability and maternity-leaves of absence the same as other temporary absences for physical disabilities.

The law also demands equality in health coverage for pregnant workers. Most state laws say that disabilities caused, or contributed to, by pregnancy, miscarriage, abortion, childbirth and subsequent recovery are, for all job-related purposes, temporary disabilities, and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment a position affirmed by federal law under the Pregnancy Disability Act of l978. Although companies are not required to provide any health care benefits, when they do, pregnancy must be treated the same way as any other medical condition.

TIP: Sick leave and disability benefits have to be paid only on the same terms that apply to other employees who are granted leave for temporary disabilities. If company health care is provided, maternity care must be included and coverage must be the same for spouses of males and females. Limitations on maternity coverage for pre-existing conditions must be similar to limits on other disabilities. If extended benefits are given for other disabilities, so too must extended benefits be given for pregnancies occurring during a covered period.

Pregnant Workers and Pregnancy Leave: Even before the enactment of the Family and Medical Leave Act, the rights of pregnant workers changed dramatically over the past few years since approximately 30 states adopted some form of family or medical leave. The laws give female workers either job security (i.e., the right to have her job back within a certain period of time after giving birth) or the ability to enforce the right to take a maternity leave. Also, some states provide paid maternity leave (one-third to one-half of the regular salary) under Workers' Compensation laws for a period usually up to 26 weeks, and include pregnant women in their temporary-disability insurance coverage. Other states are granting workers, both male and female, the right to care for their newborn and adopted children for a period of time after birth.

The following rules will simplify what employers must generally do to comply with the law in this area:

• Pregnancy is a disability that must be treated the same as any other disability.
• Although employers may require workers to give notice of a pregnancy, such a requirement must serve a legitimate business purpose and must not be used to restrict a worker's job opportunities.
• Employers are prohibited from discriminating in hiring, promotion and firing decisions on the basis of pregnancy or because of an abortion.
• Employers cannot require pregnant workers to exhaust vacation benefits before receiving sick pay or disability benefits unless all temporarily disabled workers are required to do the same.
• The decision as to whether payment for pregnancy disability leave will be given must be in accord with policies governing other forms of disability leave; if paid leave is provided for workers with other disabilities, the employer must provide pregnant workers with paid leave for their actual disability due to pregnancy and related childbirth.
• Time restrictions placed on pregnancy-related leaves (i.e., that pregnancy leaves not exceed four months) must be reasonable and job related; if not, they may be illegal.
• It is illegal to place pregnant workers on involuntary sick leave if the company has no policy of placing workers with other forms of disability on involuntary leave; if a worker is physically able to work, the company cannot force her to leave merely because she is pregnant.

Counsel Comment #111: To minimize wrongdoing, distinguish between leaves of absence for pregnancy and leaves for postnatal care. This should be clearly explained in a company handbook. Many well-run companies provide pregnant employees with paid leave for their actual disability due to pregnancy, followed by a personal leave for purposes of child care, which may or may not be paid, depending on the company's policy for personal leave, and federal and state law.

Think ahead before firing any worker after being informed that she is pregnant. Many such workers automatically assume that pregnancy was the reason of the discharge and file a claim alleging pregnancy discrimination with the EEOC or appro- priate state agency. It may be a better idea to continue the person's employment until she voluntarily leaves to give birth, rather than fire her several months before the birth, to avoid the added costs and burdens of contesting such a charge. If you must fire a pregnant female worker, be sure that her file supports the decision (i.e., unfavorable job performance appraisals and repeated written warnings are present in the file and were presented to the female employee before your company was notified about her pregnancy). If you are concerned about the potential adverse ramifications in a particular situation, always seek the advice of competent legal counsel before making any final decisions in this area.