Discrimination against pregnant women in the workplace is unfortunately a common occurrence, as some employers use a pregnant worker’s need for some small accommodation as a pretense to pass the worker over for a promotion, demote the worker, or even terminate her employment. This can occur in jobs the worker is perfectly capable of performing. She may need more restroom breaks or a slightly different chair, or she may simply need to refrain from specific activities during the last weeks of pregnancy. The law does not always protect workers from discrimination over these issues. A federal judge in Brooklyn ruled against an employee in 2008 who claimed that her employer discriminated against her because she asked for slightly modified job duties in the six weeks before her due date. The judge found that the employer did not have a legal obligation to accommodate her pregnancy.
These issues fall between two areas of anti-discrimination law: those that prohibit gender-based discrimination and those that prohibit discrimination based on a disability. Employers cannot discriminate against an employee solely on the basis of her pregnancy under laws like Title VII of the Civil Rights Act. Under the Americans with Disabilities Act (ADA), they must make reasonable accommodations for medical complications related to pregnancy. In a situation where an employee needs an accommodation based solely on the pregnancy–in other words, where the employee needs the employer to take some affirmative step to assist her pregnancy–she has no specific legal protection. Pregnancy itself is not considered a “disability,” and the employee’s specific need could constitute a legally sufficient defense to a gender discrimination claim.
A solution to this gap in protection is to treat pregnancy as a “disability” for the purposes of anti-discrimination laws. That is what legislation introduced by two Democrats in the state Legislature hopes to accomplish. Senator Liz Krueger on Manhattan and Assemblywoman Aileen Gunther of Sullivan County have introduced bills in both houses that would amend state law to require employers to reasonably accommodate pregnant employees’ needs. Employees would have to present a doctor’s recommendation, and the accommodations cannot impose an unreasonable burden or hardship on the employer.
It is in the interest of both employers and employees to make such accommodations. A pregnant woman who must go on unpaid leave or loses her job so close to giving birth faces compounded hardships, as it will be even more difficult to either re-enter the workplace or find a new job while raising a child. It can also make economic sense for businesses, who tend to perform better with happy employees. A law professor who advocates for including pregnancy as a disability under the ADA has observed that policies and conditions in a workplace hostile to pregnancy already have the effect of turning pregnancy into a disability.
Employees in New York who face pregnancy discrimination have numerous resources to support them, even if the laws have not fully caught up yet. New York has anti-discrimination laws at both the state and city level. They are investigated respectively by the New York State Division of Human Rights and the New York City Commission on Human Rights.
The New York pregnancy discrimination lawyers at Phillips & Associates help safeguard the rights enshrined in anti-discrimination laws for both employees and job seekers. To schedule a free and confidential consultation, contact the firm today.
More Blog Posts:
Former University Employee Sues for Pregnancy Discrimination, New York Employment Attorney Blog, November 22, 2011
Nurse Claims Pregnancy Discrimination Over Job Duty Restrictions, New York Employment Attorney Blog, November 16, 2011
Greenwich Salon Accused of Pregnancy Discrimination, New York Employment Attorney Blog, November 7, 2011
Photo credit: Delivery Stork by buzzybee on stock.xchng.