|
|
|
Employment discrimination
Hiring and employment
|
|
Attorney directory
|
|
|
|
|
Protection from Pregnancy Discrimination
Anti discrimination pregnancy, pregnancy discrimination laws, pregnancy discrimination workplace
1. Definition of pregnancy discrimination
Simply put, pregnancy discrimination means being prejudiced upon because
you are pregnant and under other conditions related to pregnancy. Some
employer actions that demonstrate pregnancy discrimination are:
• Not entertaining pregnant applicants
• Dismissal or downgrading the position of a pregnant employee
• Refusing to let the employee take on the position she left when she
returns from her maternity leave
• Discriminatory treatment compared to other temporarily physically disabled
workers
• Failure to pay a male employee’s health benefits covering pregnacy related
availment just because the wife who is also employed in the same company
has already availed of the full benefits of the health insurance coverage
The law states that pregnancy is a non-permanent disability which could
include pregnancy related illenesses like acute morning sickness, doctor-prescribed
prolonged bedrest for delicate pregnacies, delivery, convalescence after
childbirth and other associated medical conditions. Hence, the pregnat
employee should receive the same benefits and treatment accorded to workers
who are also temporarily disabled due to another kind of illness.
Let me give you some sample situations which can be considered as discriminationary
acts against pregnant women:
• A pregnant applicant is being interviewed and asked how many kids she
already has and if she has plans of again getting pregnant. Upon learning
that she is still in the early stage of pregnancy, she is asked to come
back after giving birth because by then she will be in a better physical
shape.
• An employer upon knowing that the employee is pregnant dismisses her
although it is still so many months away from her delivery.
• A pregnant employee requests her immediate supervisor in a manufacturing
plant if she can be excused from lifting heavy products. The employer
disapproved the request while another employee who was recuperating from
an apendectomy was excused. Eventually, since the pregnant employee can
no longer do heavy work, she was asked to resign.
• A pregnant employee takes a leave for prenatal examination. Her wages
were deducted for her absence and she was suspended as well for being
absent while other employees who need to regularly take time off from
work for continuing treatment are not sanctioned in the same manner.
2. Are there federal laws that protect pregnant women from discrimination?
The laws that protect women against discrimination as well as parenting
and disability are the Family and Medical Leave Act of 1993 and Title
VII of the Civil Rights Act of 1964. The latter also covers Pregnancy
Discrimination Act of 1978, (see section 2000e(k) which indicates in detail
the rights of pregnant women.
Title VII deals with a number of types of discrimination because of gender
which had a taken a bearing on decisions related to employment, dismissal,
work types and conditions, advancement in work, training, salaries and
policies on retirement. 1978 saw Congress’ passing of the Pregnancy Discrimination
Act (P.D.A.) (see §2000e(k)) replacing Title VII to make it clearer that
pregnancy discrimination is a type of sex discrimination. This provision
also makes it illegal for employers to treat pregnant women or women who
have just given birth differently from employees who are similarly temporarily
disabled because of other illnesses.
Then in 1993, Congress passed the Bill on (FMLA) Family and Medical Leave
Act. These laws provide employees both male and female who have been in
the employ of a company for not less than a year to be allowed to take
a three-month unpaid leave to recuperate from a severe illness to include
pregnancy and other related absences such as to care for a baby or young
adopted child, a very sick child, spouse or parent. The law provides that
an employee has the right to avail of the 3-month unpaid leave each year
without affecting the employee’s health benefits during the period the
employee is on leave. The law also guarantees that when the
employee goes back to work, he will have the same position or another
job without diminution in pay and benefits.
It will depend on the circumstance of the discrimination, if the discrimination
against pregnant women could infringe either the Family and Medical Leave
Act or Title VII or even both. It will also have to take into consideration
if the employee meets the criteria to be covered by each law and if medical
leave can be applied. The laws vary from, state to state; still some state
post requirements aside form FMLA and Title VII for granting the pregnancy
leave.
3. Who does the law protect?
Title VII seeks to protect expectant women who because of their physical
condition make them eligible for disability leave as provided by their
company policy and those who are employed in companies with more than
15 and above employees, employment agencies as well as labor unions.
The FMLA law seeks to protect all employees, both female and male who
have been in the employ of a company for a year or more to be allowed
to take a three-month unpaid leave to take care of medical exigencies
involving their new-born baby, seriously sick child, spouse or parent
or themselves, to be able to recuperate from a serious illness. The company
should at least have more than fifty employees for this law to be applicable.
Even though companies with less than 50 employees are not obliged to grant
pregnancy-related or disability leaves per FMLA or Title VII, the state
law may order otherwise. Sometimes, more generous employers give this
voluntarily or negotiated by means of the CBA.
Union members and union officials should take into consideration that
several stipulations of the FMLA are obligatory bargaining issues: These
are 1) payment of employees while on FMLA leave; 2) continued effectivity
of the health insurance coverage while on FMLA leave; 3) up to when can
an employee use the vacation or sick leave before applying the FMLA leave;
4) what method of computation will be used to know if the employee has
the required manhours to be eligible for FMLA.
|
