As an employment law attorney in Charleston, South Carolina, I’ve represented pregnant women who’ve been discriminated against by employers. Even in today’s modern workplace, pregnancy discrimination still exists. That is why, in 2014, the Equal Employment Opportunity Commission updated its guidelines against pregnancy discrimination to make clear that any form of workplace discrimination or harassment against pregnant workers by employers is a form of sex discrimination and illegal. This article takes a look at the current protections under Federal law for discrimination against pregnant employees and how to bring a claim for discrimination in South Carolina.
The Pregnancy Discrimination Act
Under the Pregnancy Discrimination Act (PDA), an employer who has 15 or more workers is prohibited from discriminating against an employee due to pregnancy, childbirth, or related medical conditions. Generally, an employer can’t discriminate by firing women for being pregnant, by assigning pregnant women to unfavorable job positions, by offering them lower pay, by taking away benefits, or by requiring that they take mandatory periods of leave.
An employer isn’t required to make any special benefits available only to pregnant women such as pregnancy leave. However, if the employer gives disabled or sick workers receive reasonable accommodations, alternative assignments, or leave (whether paid or unpaid), then the paid/unpaid leave, then the employer must give pregnant women the same benefits.
The PDA also protects women from discrimination based on their potential to become pregnant. For example, an employer can’t exclude all women of childbearing years from dangerous jobs that may cause employees to come into contact with chemicals or other substances that could lead to birth defects.
Discrimination Against Pregnant Job Applicants
Under federal law, employers can’t discriminate against job candidates because they are pregnant. An employer can’t refuse to hire a woman because of her pregnancy if she is otherwise able to perform the major functions of the job. During the interview process, the employer is prohibited from asking the applicant any “gender-specific” such as questions about childbearing or motherhood.
Workplace Harassment Against Pregnant Women
Harassment by supervisors or co-workers against a pregnant worker, whether it is physical, verbal, or written, is illegal. Workplace conduct is considered harassment when it is so frequent or severe that both a reasonable person and the employee herself could perceive that the work environment is hostile or abusive.
Discrimination After Returning from Maternity Leave
If a pregnant worker qualifies for and takes maternity leave under the Family Medical Leave Act (FMLA), then the employer must reinstate her to the same position with the same responsibilities that she had before taking leave. If the FMLA doesn’t apply, then under the PDA, an employer must treat a pregnant woman the same way the employer treats other sick or temporarily disabled workers who return to work.
Making and Proving a Pregnancy Discrimination Claim
Under federal law, you have no right to bring a lawsuit against your employer unless and until you have exhausted all of your “administrative remedies” to resolve the problem. What this means is that typically you must start by reporting the problem to your employer or your human resources department. Failure to do so may result in you being barred from bringing a lawsuit for damages. If you are unable to resolve matters through your employer, then you must then make a report to either the South Carolina Human Affairs Commission (SHAC) or the Equal Employment Opportunity Commission (EEOC). If you file a report with SHAC, you must do so within 180 days of the date you believe you were discriminated against. Otherwise, you have within 300 days of the date you believe you were discriminated against to file with the EEOC. Failure to timely file with one of these agencies will result in you being barred from filing a lawsuit for damages.
If you must bring a lawsuit for damages against your employer, then to prove gender discrimination based on pregnancy, an employee must show four things:
- that the employee is a member of a protected class under Federal law (pregnant women);
- that the employee was performing her job satisfactorily at the time of her discharge or demotion;
- that the employee was subjected to adverse employment action such as being demoted or fired; and
- that the employee was either replaced or treated differently than persons outside of the protected class.
If the employee shows these four elements, then the employer must prove that the reason for the adverse employment action was not discriminatory (unrelated to the employee’s pregnancy). For example, the employer may claim that it terminated the pregnant employee’s position because the employee violated company policies such as using computers for personal use. In this example, the employee could respond by showing the reason offered by the employer was “pre-textual” by showing that other employees use company computers for personal reasons yet they did not suffer any adverse consequences. As another example, the employer may claim that it terminated the pregnant worker because it did not have any “light duty” to assign to her. Yet, in truth, the employer may have made “light duty” accommodations for every male employee who was either sick or disabled. These are just two examples of numerous “pre-textual” reasons I’ve heard from employers for discriminating against pregnant women.
Charleston Employment Lawyer for Pregnancy Discrimination
If you believe that your employer has discriminated against you based on your gender or the fact that you are or were pregnant, then please contact us to schedule a free, confidential, meeting. Please remember that there are time limitations and actions you must take before you can file a lawsuit for damages against your employer. Of course, we’ll cover all of this information with you during your meeting and get you started on the right path to protect you from discrimination and to assert your legal rights.