We want you to know your rights as a pregnant employee

When I was 24 years old, I finished my second term of AmeriCorps. Like most twenty-somethings when faced with the end of a term-limited, contract-like position, I began looking for a new job. But there was a complication with my employability: I was about 25 weeks pregnant.

I really struggled with my job search. Would a small, advocacy-related nonprofit, like I wanted to work with, hire a pregnant woman? Would I be granted leave for the time after childbirth, to heal and bond with my baby? Would they hold my job? Would they be willing to train me, knowing my time on the job would be short before taking a leave?

I ended up researching this thoroughly, and I could tell you these things:

  • If they didn’t hire me because of my pregnancy or imminent birth, it would have been illegal. But to get redress in the courts, I would have to prove that not hiring me was because of my pregnancy, and not because of some other hiring factor, such as personality or qualifications.
  • I would NOT have federally-mandated legal protection for a leave after giving birth. I would not be eligible for FMLA, and any short-term disability would depend on the company’s existing short-term disability policies and benefits. However, many nonprofits have their own FMLA-like policies and procedures in place. Taking a job would risk returning to work far sooner than was healthy.

It became clear to me that it was very risky to look for a job while pregnant, for both myself and the employer. I ended up applying to grad school, instead — and while I joke about it now, it seemed like my personal statement essentially said, “I’m pregnant and no one will hire me, please admit me to the class of 2013!”  

It worked. I have a Master’s in Public Policy, and I focused primarily on domestic policies that affect women, like these. But you probably don’t have the luxury of opting out of work. While I am not a lawyer, and thus I cannot advise you on legal matters, I can describe the way the federal laws are designed to protect you.

A Normal, Healthy Pregnancy

The names of the law aren’t all that important, but if it comes up in discussion with your employers, I want you to be able to speak powerfully — using the names of laws is a power move you can use to your advantage. (Most of the information for these two sections come from this fact sheet, in case you’d like more detail.)

For the most part, a woman whose pregnancy is healthy, without any complications, is primarily covered under the Pregnancy Discrimination Act of 1978, (which amends Title VII of the Civil Rights Act of 1964). PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.

This law makes it clear that discriminating on the basis of pregnancy is sex discrimination (it actually took two Supreme Court cases to get that straight, believe it or not), and covers discrimination on any past, present or future pregnancy. While the Federal law only covers companies with 15 or more employees, most States have lowered that minimum.

The other important factor in this law is the policies and procedures of your employer regarding limitations on the job. It’s important to read the human resources manual to see what is outlined there, as well as observe how other employees who have needed accommodations have been treated in the past.

The Pregnancy Discrimination Act grants the following rights:

  • An employer cannot ask about your plans for current or future pregnancy, period. This includes interviewing, on boarding, and while you’re employed.
  • An employer cannot refuse to hire you because you’re pregnant, or planning to become pregnant.
  • Your training for your job position must be the same as any other non-pregnant employee.
  • If the employer makes accommodations for employee limitations (such as an inability to lift to full capacity due to injury), then the same types of accommodation.
  • You cannot be fired or demoted because of your pregnancy.
  • Your employer cannot require you to begin your leave early, if you are still able and willing to work.

Complications of Pregnancy

While pregnancy itself is considered a normal state under the law, complications of pregnancy are considered disabilities arising from a physiological source. If you experience hypertension, gestational diabetes, severe nausea, sciatica and other impairments, if it substantially impairs your life function, it’s considered a disability under the Americans With Disabilities Amendments Act of 2008 (ADAAA). Other doctor-recommended strategies for healthy pregnancy, such as restricting the amount of lifting done, are also covered by this law.

The ADAAA requires employees to accommodate any and all workers with temporary disabilities who are otherwise qualified for the job. (And, if you notice, the PDA requires that employers treat pregnant workers similarly in their ability or inability to work as other employees — in other words, ADAAA sets the bar for accommodation, and PDA makes sure that it applies to pregnant women.) Like PDA, the ADAAA applies to organizations with 15 or more employees — but state and local jurisdictions may have lowered that threshold.

The other factor included in this is called “undue burden.” If your employer claims that accommodating your complication of pregnancy is an undue burden, I suggest you contact a lawyer.

Accommodations that are typically considered reasonable include:

  • Modified work schedules, such as adding additional breaks
  • Modification of workplace policies, such as “No Food or Drink” of medically necessary
  • Reassignment to a vacant job that you’re qualified for, if you’re unable to perform your job
  • Providing or modifying equipment, such as providing a stool instead of requiring standing
  • Job restructuring, such as reassigning tasks you’re unable to do
  • “Light Duty,” which means excusing the worker from some tasks without penalty.

If you experience pregnancy discrimination of any type, or you’re interested in learning more about the prevention and justice of pregnancy discrimination, contact the National Women’s Law Center. They may not be able to take your case, but they collect data on the problem — important for changing attitudes and enforcing the law.

Giving Birth & Recovery From Birth

maternity leave

Giving birth is emotional and physical hard work, and so is caring for a newborn. If you give birth vaginally, you may need to recover from tears, episiotomies, or just general soreness. A Cesarean Birth is major abdominal surgery, no matter what anyone says about “easy.” People who give birth need time to recover… but one quarter of American mothers return to work less than two weeks after giving birth.

The federal law in the United States that covers this is the Family Medical Leave Act of 1993 (FMLA). Twenty plus years ago, it was groundbreaking. However, most people are unable to afford it. It provided 12 weeks of unpaid, job protected leave with all benefits (including health insurance) intact.

But only if:

  • The company has more than 50 employees in a location, or 75 miles of that location.
  • The employee had been employed for 1 year
  • The employee has worked at least 1250 hours in that year
  • You have added an infant to their family through birth or adoption, and the leave is applicable during the first year after the birth or adoption. (And it applies to both men and women.)
  • FMLA also covers medical leave for the illness of an employee or their spouse, child, or parent, but that’s beyond the scope of this blog post. (I just wanted you to know.)

If you’re lucky enough to meet all the requirements (and only 17% of employers are covered, representing 59% of the American workforce), then you can take your leave all at once, or in small pieces over the course  of the year after the “qualifying event.” This could allow a mother and a father to take turns with their leave, among other strategies.

paternity leave

Here are some other important considerations:

  • Know your own benefits. If your company or organization is not covered under FMLA, check the human resources manual anyway. Some small companies and organizations have recognized the benefits of healthy employees and have voluntarily put together FMLA-like policies. On the other hand, check them anyway — they might be more generous than you expect.
  • Know your benefits, part 2. If your company provides short term disability benefits, this is the time to use them. It often can replace some income that would otherwise be lost — usually about 6 week’s worth.
  • Know your benefits, part 3. Some companies may require you to use earned sick days and paid time off before they file for FMLA. However, this usually does not extend the amount of job-protected leave past 12 weeks.
  • Know your state law. California, New Jersey and Rhode Island have instituted state-run, employee-paid paid maternity leave. Each state does it differently, and so I suggest finding local resources if you’re in one of those states.

Obviously, parental leave in the United States needs a huge makeover. The National Partnership for Women and Families is doing some of the political heavy lifting, and could use your support. They also have a lot of research and other information on these types of policies.

This guest post was written by Kate Ditzler. Kate is a Self-Advocacy Coach who works with women who dream of saving the world and are struggling with aspects of their life situations and expectations. These women learn to identify, validate, and speak up about their emotions and needs so that they can live their most expansive lives, coming away with strategies, skills, and sisters for their world-changing role.  She has a Master’s Degree in Public Policy, and her big mission for her work in the world is to solve the problem of feeling unseen, unheard, and unsupported for all women.

Her company is Practicing Empathy, and she has free gifts, such as a checklist to evaluate the extent of your emotional birth trauma, as well as a one-page summary of the federal laws that cover pregnant workers.

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