by Jonathan Driggs
The laws protecting women in the workplace regarding pregnancy are based upon a simple (if not obvious) principle: men can’t get pregnant! In other words, our society would come to a screeching halt if we weren’t able to reproduce ourselves, yet female employees bear most of the disadvantages whenever pregnancy occurs. The law is an attempt to balance the playing field.
Pregnancy is protected by Title VII of the Civil Rights Act of 1964. This protection covers a wide range of pregnancy-related issues (e.g., plans to become pregnant, being pregnant, having been pregnant in the past, etc).
Accommodating Pregnant Employees
Generally, the basic legal standard is that a pregnant employee must be treated at least the same as a person with a short-term disability (a short-term disability is just a basic health condition). Since there are generally few laws dictating how employers treat employees with short-term disabilities, the standard of care can differ from employer to employer.
So, when a pregnant employee asks for an accommodation, the legal answer to the question is whatever level of accommodation your company provides to short-term disabled employees must also be provided to pregnant employees. Another way to put this is: if you provide a particular accommodation to an employee with a sprained ankle, you must provide the same accommodation to a pregnant employee when needed.
Other protections include:
- Pregnant employees have the right to work up to the date of their delivery so long as they are able to perform the functions of their jobs.
- Applicants and employees may not be asked about their plans to have children or their pregnancy status (sadly, I find that this still happens way too often in job interviews—it is a huge red flag to applicants and such questions often generate discrimination claims).
- Title VII of the Civil Rights Act does not provide employees with maternity leave rights. Such rights are provided by the Family & Medical Leave Act.
Practically speaking, I find that two simple things help to reduce the potential for legal claims from pregnant employees:
- Respond positively when employees inform you that they are pregnant. Managers who respond in a negative manner create suspicion in the minds of employees that they may be subject to discrimination.
- When it comes to accommodating pregnant employees, look for ways to be helpful and supportive regardless of what the law may or may not actually require. Of course there are reasonable limitations, but a spirit of genuine helpfulness can go a long way to keep the relationship healthy.
Break Time for Nursing Mothers (NEW!)
One of the healthcare reform bills passed by Congress in 2010 included an amendment to the Fair Labor Standards Act that requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”
The major provisions of this law are summarized as follows:
- Employers must provide their employees with a place to express milk that is not a bathroom, that is shielded from view and free from intrusion from coworkers and the public.
- Employers must allow a “reasonable amount of break time” to express milk as frequently as needed by the nursing mother (this term has not yet been defined but should be construed liberally in favor of the employee).
- The right to take breaks to express milk only applies to employees who are non-exempt under the Fair Labor Standards Act.
- Employees do not have to be compensated during these breaks (so long as they are completely relieved of duty), unless an employee is using a compensated break provided by the employer.
This article should not be construed as legal advice.
Jonathan K. Driggs is an employment law attorney with over 18 years of experience, including 3 years with the Utah Labor Commission. www.jdriggslaw.com