Pregnancy Discrimination in the Workplace

Protect Your Rights with a Pregnancy Discrimination Lawyer

Have you experienced pregnancy discrimination at work? Mistreating a job applicant or employee because of pregnancy, childbirth, or a related medical condition violates the law.

Our guide walks through your rights under discrimination laws and how to prove pregnancy discrimination at work. If you experience discrimination in the workplace, a pregnancy discrimination lawyer can help.

Contact New York discrimination lawyer Charles Joseph for a free consultation to protect your rights. Charles Joseph’s firm has recovered more than $140 million for clients. Reach out today for a free, confidential consultation.

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Know Your Rights: What is Pregnancy Discrimination?

Pregnancy discrimination in the workplace means treating a job applicant or an employee unfavorably because of pregnancy, childbirth, or a related medical condition. It can also include retaliation for taking paid family leave.

It is illegal for an employer to make employment decisions based on pregnancy.

Employers cannot make employment decisions based on your pregnancy, childbirth, or a related medical condition instead of your skills or how well you do your job.

Pregnancy discrimination laws cover current pregnancies, past pregnancies, potential or intended pregnancies, and medical conditions related to pregnancy or childbirth. Discrimination laws govern decisions about hiring, firing, discipline, distribution of benefits, promotion, compensation, job training, or any other condition of employment.

Multiple laws protect New Yorkers from pregnancy discrimination.

Pregnancy discrimination at work is a serious offense. New Yorkers are protected from pregnancy discrimination by employers at the federal level by Title VII of the Civil Rights Act of 1964 (Title VII) as amended by the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act, and the Family and Medical Leave Act (FMLA).

At the state and local level, the New York State Paid Family Leave Act (NYSPFL), the New York State Human Rights Law (NYSHRL), the New York State Disability Law, and the New York City Human Rights Law (CHRL) all protect against pregnancy discrimination.

New York pregnancy discrimination laws cover non-employees.

The law does not just protect “employees.” After October 11, 2019, New York State’s discrimination laws expanded to cover non-employees, such as domestic workers, independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract, where employers knew or should have known the discrimination was happening.

If you have been the victim of pregnancy discrimination in the workplace, you are protected under federal, state, and New York City laws. Contact a New York pregnancy discrimination lawyer to file a claim.

Examples of Pregnancy Discrimination in the Workplace

Employment Decisions Based on Pregnancy are Illegal

It is a violation of the law to make employment decisions – including hiring and firing – based on a current or past pregnancy or pregnancy-related conditions.  

Examples of pregnancy discrimination in the workplace:

• You apply for a job for which you have experience and excellent qualifications, and you are visibly pregnant at the interview. The hiring manager decides not to offer you the job because he doesn’t want to deal with a new employee taking parental leave.
• You do not inform your job that you are pregnant because you fear that it would affect your chance of receiving your annual bonus. By the time bonuses are announced, your boss has commented to coworkers that you look pregnant, even though you have not informed the company. You are denied a bonus while every other employee receives one.
• You tell your boss that you are pregnant and plan to take parental leave for three months when your baby is born using the Family and Medical Leave Act. Even though you qualify for FMLA protection, your boss says he can’t afford a temp replacement, and you are fired.

Discriminatory Promotion Decisions Can Violate The Law

Laws against pregnancy discrimination in the workplace also protect employees from not receiving promotions, including tenure, because of pregnancy or a related medical condition.

Examples of pregnancy discrimination in the workplace:

• You have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award. Yet when you apply for a promotion after returning from parental leave, the position is filled by a less qualified employee because the company said his service record was uninterrupted.
• You are a school librarian on a three-year tenure track. You have always received excellent performance evaluations, including after you returned from your recent maternity leave. However, as your tenure review draws near, your boss questions whether you can put in the necessary hours at work because you are a new mother. You are denied tenure.
• After building a strong track record at your company, you apply for a promotion. Your supervisor denies the promotion because you recently had a baby and he worries that you might have more children in the future, which he calls “too disruptive.”

Pregnancy-Related Medical Conditions

Laws against pregnancy discrimination also cover pregnancy-related medical conditions, including lactation and breastfeeding, infertility, and abortion.

It is against the law to discriminate against an employee because she intends to become pregnant, chooses to end a pregnancy, or chooses to breastfeed her child. It is also unlawful to ask an applicant or employee if she intends to become pregnant.

Examples of pregnancy discrimination in the workplace:

• An employee tells her boss that she is trying to get pregnant. In her performance evaluation a week later, the boss says she is not committed enough to her job because motherhood will make her too busy, even though she has a record of good reviews. Her boss then tells the employee that she will not receive a pay raise because of that single negative evaluation.
• An employer learns that one of their workers once had an abortion and decides that the woman’s choice does not fit with “company values.” She is let go from the company.
• After giving birth and returning from parental leave, a female employee informs her supervisor she will require 2-3 breaks per workday to pump breastmilk for her child. He decides that she should no longer be in a customer-facing position because customers might not approve of breastfeeding, and reassigns her to a lower-paid position.
• A female accountant lets her boss know privately that she is currently undergoing infertility treatment and may require time off for medical procedures. Her boss says that any time off will be unpaid, even though other employees are given paid time off for doctor’s visits.
• During a locker check at a restaurant, the manager finds a female employee’s birth control pills. She informs the employee that since the company doesn’t believe in contraceptives, the employee is being fired.

These forms of pregnancy discrimination in the workplace are illegal, and some may also constitute gender discrimination.

Pregnancy-Related Disability and Leave

New York City law considers pregnancy a disability.

In New York City, if you are not able to perform certain duties of your job during or after your pregnancy, your employer must provide reasonable accommodations that allow you to do your job.

For example, your employer can change the type of tasks you do, offer bathroom breaks, give permission to have snacks or water at your workstation, or allow you periodic rest breaks if you have to stand for long periods of time.

Some pregnancy and post-pregnancy conditions may qualify as disabilities under the ADA if they substantially limit a major life activity or the normal functioning of a bodily system. For example, anemia, sciatica, gestational diabetes, preeclampsia, morning sickness, swelling in the legs, and depression could qualify as ADA disabilities.

Also, if you are temporarily disabled by a pregnancy, you may be entitled to temporary benefits under the New York state disability insurance.

New York State Paid Family Leave

New York State Paid Family Leave (NYSPFL), which took effect on January 1, 2018, offers additional benefits.

Once you have your baby, you can take up to 8 weeks of paid leave in order to bond with your newborn. The amount of paid leave will increase to 10 weeks in 2019 and to 12 weeks in 2021.

You are entitled to receive 50% of your salary up to a weekly cap. You may not collect unemployment insurance during your leave.

You are required to give your employer 30 days notice before taking the leave. If that is not possible, your notice must be as soon as “practicable.” The notice should explain what type of leave is necessary and when and how long you anticipate being out on leave. Your employer should provide you with an application, which will be submitted to your employer’s paid family leave insurance carrier. Your employer may request additional documentation, such as proof of the birth.

Your employer cannot discriminate or retaliate against you for taking leave under the NYSPFL. You are entitled to job protection, meaning you cannot be fired and you must be reinstated to the same or an equivalent position.

If your employer wrongfully refuses your request for leave or terminates you because you sought leave, an administrative law judge with the Workers’ Compensation Board could order your employer to reinstate you, pay any lost wages, pay pregnancy discrimination attorney’s fees, and pay up to $500 in penalties.

You are entitled to benefits under the NYSPFL regardless of your immigration status and regardless of the number of workers your employer employs. You are covered by this law even if you are a domestic worker who is the only person working for your employer.

FMLA

If you are covered by the Family and Medical Leave Act, you may be entitled to take up to 12 weeks of unpaid leave for the birth of your newborn. Your job is protected during this leave period.

You are allowed to take leave under both the FMLA and the NYSPFL, but your employer can require you to take time off for the same event concurrently. However, your employer must notify you of this requirement before your leave starts.

You cannot take leave under the NYSPFL and short-term disability at the same time. You must take one and then the other. Also, you cannot take more than 26 weeks of combined short-term disability and NYSPFL leave in a 52-week period.

Breastfeeding

Once you have had your baby and returned to work, your employer is required by New York law to give you paid breaks for the purpose of breastfeeding or pumping breast milk for up to three years following childbirth.

Your employer must make reasonable efforts to provide a room or other location, in close proximity to the work area, where you can express milk in privacy.

No employer may discriminate in any way against an employee who chooses to express breast milk in the workplace.

Pregnancy Stereotypes And Discrimination

Employers Cannot Treat You Unfavorably Because Of Stereotypes Associated With Pregnancy.

The law prohibits employment decisions based on stereotypes and assumptions about the abilities of pregnant women, including their commitment to their job.

Examples of pregnancy discrimination in the workplace:

• A pregnant employee takes two days off because of a cold, and the same week has a routine doctor’s appointment that requires time off from work. Her supervisor says that her absence is clear evidence that she is not committed to her job and fires her, even though other employees with the same attendance record were not let go.
• A visibly pregnant job applicant lets her potential employer know that she plans to work until her due date, which is after the company’s busy season. The hiring manager says the company can’t risk that she will change her mind and leave during the busy season, and does not offer her a job.
• A pregnant teacher plans to take her parental leave over the summer between school years, and thus will not miss any work. Her school fears that she will not return to work after she has a baby and decides not to renew her contract.

Employers cannot excuse discriminatory decisions because of the anticipated reactions of other employees or customers.

Employers cannot make discriminatory employment decisions with the excuse that the decision was driven by business concerns such as the effect on employee relations or the negative reaction of clients or customers.

Policies With Discriminatory Effects

Unintentional pregnancy discrimination in the workplace can also be illegal.

Job policies that appear neutral can be discriminatory if they disproportionately harm workers who are protected by pregnancy discrimination laws, as long as the policy is not job-related.

This is known as disparate impact, and it applies when an employer’s requirement harms women who are pregnant or dealing with pregnancy-related conditions more than other employees.

For example, a job that required employees to lift up to 50 pounds disproportionately excludes pregnant women and may be discriminatory unless the employer can show the weight lifting requirement is rationally related to job performance.

Hostile Work Environments Violate the Law

It is against the law to harass a woman because of pregnancy, childbirth, or a related medical condition. Anyone can be the victim of discrimination even when no employment decision is involved if pregnancy-related harassment creates a hostile work environment.

A hostile work environment can be created by jokes, slurs, or offensive or derogatory remarks, as well as offensive images, even if they are not posted in a public area at work.

Hostile Conduct Must Be More Than Petty Or Trivial

New York City has a lower standard for hostile conduct than federal or state law. Only conduct that is unwelcome or severe meets the threshold for a hostile workplace according to federal and state law.

Under federal law, if comments or acts are not offensive in the extreme, they constitute harassment only if they occur often enough to create an intimidating, hostile, or offensive work environment. However, a single incident such as a physical assault might be so threatening and insulting that it could rise to the level of harassment.

New York State recently lowered its standard so that after October 11, 2019, it no longer requires that discriminatory harassment be severe or pervasive.

New York City, however, defines hostile conduct as more than a “petty slight” or “trivial inconvenience.”

Victims Do Not Have To Be The Targets

It is a misconception that only the target of hostile comments can be the victim of a hostile work environment. You can be a victim even if you are not the person being targeted by the offensive behavior, and even if you are not pregnant or dealing with pregnancy-related conditions.

If the offensive behavior is affecting your ability to do your job, you may have a claim.

The Offender Does Not Have To Be Your Boss

It is a misconception that only your boss can create a hostile work environment. Employers have a responsibility to prevent pregnancy discrimination at work.

While employers are generally liable for a supervisor’s behavior, they are also liable for the behavior of employees who are not in a position of authority over the victim if there have been complaints about the perpetrator or the perpetrator has committed acts against others. If the company knew or should have known about the discrimination, they may be liable.

A co-worker, a supervisor in another area of the company, or even a non-employee, like a vendor, can be the perpetrator of discrimination.  

What To Do If You Are The Victim of Discrimination

Discrimination can happen in any workplace. If you think you are the victim of discrimination, there are several steps you can take right away.

• Start keeping notes of the discriminatory practices and/or harassment. Be specific in your details—write down the time and place of each incident, what was said and done, and who witnessed the actions.
• Keep doing a good job. Make copies of your job evaluations and any letters or memos that show that you are doing a good job at work.
• Seek support from friends and family, clergy, and, if helpful, a mental health professional. Harassment at work can be very stressful, and it is a difficult thing to face alone.
• Report the incident in writing to your supervisor and human resources department. Tell them about the behavior and the steps you have taken to address it.
• Check your company’s employee handbook. If your employer has a harassment policy in place, follow it.
• Preserve any information such as inappropriate texts, pictures, or voicemails sent to you.
• Put your complaints in writing, and keep copies at home.

A pregnancy discrimination lawyer can help protect your rights.

Retaliation is Illegal

If you complain about pregnancy discrimination at work, it is illegal for your employer to take any action against you.

It is illegal for employers to retaliate against applicants or employees who complain about discrimination on the job, file a charge with the Equal Employment Opportunity Commission (EEOC) or any state or city agency, or participate––including being a witness––in an employment discrimination proceeding, such as an investigation or lawsuit.

You Are Protected From Retaliation Even If There Was No Discrimination

As long as you had a good faith belief that discrimination or harassment occurred, your employer is barred from taking any action against you for speaking out or participating in any investigation or proceeding. It does not matter if an agency or court determines that there was no discrimination.

If you speak out about discrimination and harassment in your workplace, the law protects you from retaliation.

How to File a Claim For Pregnancy Discrimination in the Workplace

If you choose to file a claim for pregnancy discrimination at work, you  have several options. You can file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), which handles violations of federal law. The New York State Division of Human Rights handles NYSHRL violations, and the New York City Commission on Human Rights is responsible for CHRL violations.

If your claim falls under multiple laws, the three agencies that handle discrimination claims have what is called a “work-sharing agreement,” which means they cooperate with each other to process your claims. There is no need to file a claim with each agency. You just need to indicate that you want your claim “cross-filed” with the other agencies.

Learn how to file a discrimination claim, how to file an EEOC complaint, or contact a New York pregnancy discrimination lawyer for help.

Comparing Pregnancy Discrimination Laws

A pregnancy discrimination attorney can file your case under multiple pregnancy discrimination laws. Contact NYC pregnancy discrimination lawyer Charles Joseph for a free, confidential consultation.

Legal Remedies for Pregnancy Discrimination at Work

Laws against pregnancy discrimination in the workplace include financial relief for victims of discrimination. A pregnancy discrimination lawyer can help you recover back pay, damages, and other money from your employer.

• Back Pay: Back pay includes all money you would have earned without discrimination, such as wages, bonuses, benefits, and more.
• Reinstatement: The court can order your employer to rehire you if you were wrongfully terminated, or to give you a promotion you were wrongfully denied.
• Front Pay: Front pay compensates victims of pregnancy discrimination for their lost wages and benefits. Courts determine front pay based on their calculation of how long it will take for you to return to the compensation you had before the discrimination.
• Compensatory Damages: Victims of pregnancy discrimination at work may have out-of-pocket costs for therapy, lost wages, childcare costs, or job search costs. Compensatory damages also includes emotional pain and suffering.
• Punitive Damages: Punitive damages punish your employer to discourage future discrimination. Under New York City law, employers may owe you punitive damages if they showed negligence, recklessness, or a conscious disregard of your rights.
• Liquidated Damages: Under certain laws, victims of discrimination also qualify for liquidated damages equal to the amount of back pay owed. However, pregnancy discrimination laws provide compensatory and punitive damages instead of liquidated damages.
• Attorneys’ Fees and Costs: The court can order your employer to pay for your pregnancy discrimination attorney and any court costs if you win your case.

Potential Damages Under Different Pregnancy Discrimination Laws

Victims of pregnancy discrimination can also receive emotional distress damages during a lawsuit.

Employment lawyers help protect your rights when you experience pregnancy discrimination in the workplace. A pregnancy discrimination lawyer can recover emotional distress damages, back pay, and punitive damages.

In NYC, pregnancy discrimination lawyer Charles Joseph offers free consultations to discuss your case.

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