Image: Pregnant woman working at computer in her office
If you are treated differently than other workers because you are pregnant or just had a child, then you might have a discrimination claim.
By Eve Tahmincioglu
msnbc.com contributor
updated 5/21/2007 5:56:38 PM ET 2007-05-21T21:56:38

I think I should set the record straight about something quite a few readers ask about: Pregnancy discrimination is indeed illegal.

You hear that, employers out there?

You cannot refuse to hire a woman because she is pregnant. You cannot fire her because she is pregnant. You cannot demote her or dock her pay because she is pregnant. Even if you ask a woman about her child-rearing plans, and don’t do the same of your male job applicants or employees, that’s a no-no.

Seems pretty basic. Alas, not to everyone.

Despite the fact that we supposedly live in a society that is becoming more understanding, and corporate America tells us more supportive, of work-life balance, the number of pregnancy discrimination complaints across the country is actually on the rise, big time.

“The increase in pregnancy discrimination charge filings and lawsuits is cause for concern,” says David Grinberg, a spokesman for the Equal Employment Opportunity Commission. Such charges filed with the EEOC, state and local agencies jumped nearly 19 percent to a record 4,901 last year, from 3,977 in 1997. And, he adds, “pregnancy discrimination lawsuits by EEOC have increased about threefold from six or fewer per year in the early to late 1990s, to 16 or more per year since 2001.” 

Oops. Looks like many employers forgot to read the Pregnancy Discrimination Act, which is an amendment to Title VII of the Civil Rights Act of 1964: Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. ( See sidebar for an overview of your rights .)

Aside from blatant discrimination, one of the most contentious issues among pregnant women and their employers is how much time an employee is allowed to take after the baby is born, says Elaina Smiley, a Pittsburgh employment lawyer who herself recently returned to work from a maternity leave.

Under the Family and Medical Leave Act, workers who are employed by firms with 50 employees or more and have worked for a company for at least 12 months have to provide 12 weeks of unpaid leave to employees for medical reasons including pregnancy and the birth of a child. 

Often disputes arise when employers either don’t honor that or employees take more than 12 weeks, only to find their job has been given away. There is no law that says a company has to keep your job open beyond the 12 weeks, but if you find your employer is offering other workers at the firm longer leaves for things like illnesses or to take care of a sick parent, and you’re not afforded the same benefit, then you may be able to prove you were a victim of discrimination, Smiley explains.

So that should be the rule of thumb across the board. If you are treated differently than other workers because you are pregnant or just had a child, then you might have a discrimination claim.

Here is a question from a reader:

My wife who is an elementary school teacher in South Florida had her employment terminated effective the end of May. The reason for her termination is her pregnancy. This would also terminate her insurance for herself as well as the baby.  She is due at the beginning of the next school year and has been told that it would be too difficult to replace her at the beginning of the year with a substitute. She has been a teacher with this private school for six years and has never had a disciplinary action against her. The only reason she is not being asked back is her pregnancy.

Do you think we have a case to go to court against this school?  She is not sure she wants to do this. But I feel they need to know that they can't treat people this way. By the way, I forgot to mention that the lady who teaches the class above her is in the exact same predicament. She is due about a week after my wife, and she has not been asked back. Thank you in advance for any help you can give.
—R.V., Stuart, Fla.

Wow, on the surface this looks like pretty clear-cut discrimination, but I don’t know all the particulars about this situation, so it’s up to both of you to take matters into your own hands.

First thing I would do is go directly to the human resource manager or the main person at the school that handles HR functions and tell that person what is happening. If your wife has already done that, or she knows for sure that this HR manager already is aware of the termination then she needs to make it clear to her bosses that what they are doing is against the law. Maybe show them the exact wording of the law for their review.

If this gets her nowhere she should immediately call the EEOC hotline at (800) 669-4000 and tell them her predicament. (There’s also information on how to file a complaint online at EEOC.gov.)

Resolving such cases could take a few weeks or many months depending on the complexity, says Elizabeth Grossman, regional attorney, New York district office of the EEOC. A lot of the cases are settled informally, she explains, but in only some cases do people get their jobs back. Most of the time workers are just paid for earnings lost, she adds.

Grossman recommends acting quickly, while you’re still employed, because it’s harder to get reinstated after you’ve cleaned out your desk.

Keep in mind there are situations where discrimination may not be the case. If the school is implementing cutbacks to its staff and is making general layoffs, then you might not have a claim. If, however, your wife and this other pregnant woman were the only ones asked to leave, and their pregnancies were used in any way as a reason, the school administrators crossed the discrimination line.

Also, if your wife has asked for more than the 12 weeks of leave afforded under the FMLA, they are not obligated to keep her job open.

If none of these apply then your wife needs to take a stand even though she isn’t sure she wants to make hay over this.  She has worked hard for her employer and is afforded basic rights under U.S. labor laws — she cannot be fired because she plans on having a baby, period!

What better time to stand up for your rights than when you’re bringing a new person into the world — you want your child to learn the difference between right and wrong, and you need a job and insurance to afford the baby.

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