Study Highlights Difficulties Faced by Employees in New York and Around the U.S. During Pregnancy and After Giving Birth

By Wolfgang Wander, Papa Lima Whiskey (edit) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/)], via Wikimedia CommonsThe United States offers a variety of legal protections for employees during pregnancy and after childbirth, but in many ways, our laws fall far short of much of the rest of the world. Federal laws, as well as state and municipal laws in New York City, protect workers against pregnancy discrimination. New developments in federal disability law may also require employers to accommodate workers for certain conditions occurring during pregnancy or after giving birth. Where our laws fall short, however, is in the area of paid leave. The U.S. is one of only a handful of nations in the world with no paid parental leave laws. This can have a profound impact on employees and their families, as shown by a recent report published by In These Times.

A lack of access to paid parental leave requires people to plan extensively and to make difficult choices. Even the most careful plans can be easily derailed, however, and support is often not available afterwards. At the federal level, three main statutes affect the rights of pregnant workers:

– The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII of the Civil Rights Act of 1964 to include discrimination based on “pregnancy, childbirth, or related medical conditions” in the definition of sex discrimination. 42 U.S.C. § 2000e(k).
– The Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., requires employers to provide up to 12 weeks’ unpaid leave for medical conditions affecting the employee or a family member. The statute only applies to employers with 50 or more employees and to employees who have worked for the employer for at least 12 months. 29 U.S.C. §§ 2611(2), (4).
– The Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq., does not consider pregnancy itself to be a disability, but the ADA Amendments Act of 2008 (ADAAA) broadened the definition of “disability” to potentially include many conditions associated with pregnancy and childbirth. 29 C.F.R. § 1630.1(c)(4).

These laws generally protect workers against forced unpaid leave if they need to keep working, or from termination if they need to take time off. They provide no options for people who need to take time off but cannot afford to do so. This is the gap that paid parental leave fills. The In These Times report found that up to one-quarter of U.S. employees who gave birth returned to work within two weeks. In addition to requiring expenses for childcare, this deprives a newborn of bonding with their parent, which can have significant negative long-term effects.

A case study provided by the report illustrates the many dilemmas of working while pregnant. A woman chose an employer she knew would be covered by the FMLA and calculated exactly when she would become eligible for FMLA leave so that she and her husband could time their efforts to conceive their second child. She became pregnant, with a due date two months after her FMLA eligibility date. Her plan was to fund her parental leave with disability insurance. Due to complications, however, her child was born four months premature. She was not eligible for leave, so she had to return to work, derailing all of her plans.

At Phillips & Associates, we advocate for the rights of New York City employees and job applicants who have experienced pregnancy discrimination and other types of employment discrimination in violation of local, state, and federal laws. To schedule a free and confidential consultation, contact us today online or at (212) 248-7431.

More Blog Posts:

Legal Protection Against Pregnancy Discrimination, Other Unlawful Employment Practices May Depend on Whether One Is an “Employee”, New York Employment Attorney Blog, September 30, 2015

The Americans with Disabilities Act Turns 25 and Now Offers Some Protections Against Pregnancy Discrimination, New York Employment Attorney Blog, September 16, 2015

Company Drops Challenge to $185 Million Verdict in Pregnancy Discrimination Lawsuit, New York Employment Attorney Blog, August 19, 2015

Photo credit: By Wolfgang Wander, Papa Lima Whiskey (edit) [GFDL or CC-BY-SA-3.0], via Wikimedia Commons.

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