Most small business owners that maintain a paid staff will, at one time or another, have a pregnant employee in the workplace. In fact, Bureau of Labor Statistics figures indicate that fully 80 percent of all working women will become pregnant at some point in their working lives. Historically, this news has not always been welcomed by employers, and while research and highly publicized episodes indicated that mid-sized and large companies have been more likely to behave in a discriminatory fashion against pregnant employees than small businesses, which on the whole are more likely to cultivate a more relaxed, family-friendly atmosphere, the latter have also been known to look unkindly on news of an employee's pregnancy. Indeed, researchers have observed that attitudes toward pregnant employees have tended to be predicated more on company culture than on the size of the firm. For example, a small business headed by a driven entrepreneur who is determined to meet or exceed an ambitious agenda of growth may greet the news that his or her top salesperson is pregnant with far less equanimity than the leadership of a larger company that places greater weight on the long-term value of the salesperson.
For the most part, companies of all sizes have adopted more enlightened views of workplace pregnancy issues in recent years. This change can be traced in part to their need to comply with legal protections that have been established on behalf of pregnant workers, but it can also be attributed to increased recognition of the vital importance of women in the workplace and increased awareness of the negative impact that discriminatory practices can have on other women employees and on bottom-line performance. Nonetheless, unfair treatment of pregnant employees persists in some quarters. Despite the laws designed to protect workers who become pregnant, the statistics collected by the Equal Employment Opportunity Commission on charges lodged with them alleging pregnancy discrimination show that these allegations have risen over the last ten years. In 1996, there were 3,743 cases brought before the EEOC. That same year, the commission resolved 4,186 cases. Ten years later, in 2005, the EEOC received 4,449 such charges of pregnancy discrimination and settled 4,321.
PTEGNANCY DISCRIMINATION AND FEDERAL LAW
Over the past few decades, the United States has passed three major federal laws that provide legal protections to pregnant employees as well as employees who might become pregnant. These are Title VII of the 1964 Civil Rights Act, the Pregnancy Discrimination Act of 1978, and the Family and Medical Leave Act (FMLA) of 1993.
Title VII of the Civil Rights Act
This legislation expressly forbids employers with 15 or more workers on their payroll from refusing to hire, discharge, or otherwise discriminate against any person in any way, shape, or form because of that person's gender. However, this law left a giant loophole for employers, because the Supreme Court ruled in a mid-1970s case that discrimination based on pregnancy was not the same as discrimination based on sex. In other words, a disability plan that provided benefits to both men and non-pregnant women was found to meet the criteria of Title VII. Such plans, said the Court, were simply insurance policies that covered some risks and not others. Pregnancy was ruled to be one of those risks that was not covered.
Pregnancy Discrimination Act of 1978
This law was drawn up to close the above-mentioned loophole. This legislation stipulated that all employers treat pregnant and non-pregnant employees in the same way, both in terms of benefits received and all other respects.
Family and Medical Leave Act of 1993
When it passed in 1993, the Family and Medical Leave Act (FMLA) was hailed as a ground-breaking law that provided important federal protections for both men and women faced with issues related to pregnancy, childbirth, adoption, placement for foster care, and family sickness. It was bitterly opposed by some segments of the business community, but family advocates ultimately prevailed. The FMLA stipulates that men and women may take as many as 12 weeks of unpaid leave annually for the birth or adoption of a child, care of a sick child, placement for foster care, or because of morning sickness or other illness (the illness does not have to be pregnancy-related). Employers and employees alike should note, however, that the FMLA does not impact businesses with fewer than 50 employees.
AVOIDING DISCRIMINATORY BEHAVIOR
There are a number of ways in which employers—either intentionally or unintentionally—can run afoul of the various anti-discrimination rules that have been erected to protect women employees who are or may become pregnant. Examples of the ways in which an employer can discriminate range from intentionally eliminating pregnant applicants from the labor pool to unintentionally discriminating against a pregnant woman because of an apparently sex-neutral insurance policy.
- Employers may not refuse to hire, refuse to promote, or fire a pregnant employee because of her pregnancy. Moreover, experts warn that the person's pregnancy can not be any factor in the action taken. If the pregnancy was a consideration in any way, shape, or form, then the employer is liable.
- Employers have to provide the same benefits to all employees, whether or not they are pregnant, although they do not have to provide additional benefits to pregnant workers.
- Employers may not refuse to adjust workloads for a pregnant employee if they do so for a worker who is not pregnant but claims some other disability or mitigating circumstance.
- Employers may not discriminate against staff members just because they might get pregnant.
- Employers may not discriminate against employees who 1) have had an abortion, or 2) are considering having an abortion.
- Employers may not forbid a pregnant employee from continuing to work if she wants to and is physically capable of doing all tasks associated with the work.
- Employers may not evaluate pregnant and nonpregnant employees differently. This is especially true when the employer has chosen to reduce the employee's work load in response to the pregnancy.
- Employers have a responsibility to make sure that pregnant employees are not excluded from taking part in the normal office environment, since such exclusions can have a detrimental impact on the employee's cognizance of important work-related issues.
- Employers may not threaten to fire an employee because of her pregnancy or potential pregnancy.
- Employers are not allowed to reassign employees to lower-paying positions because of pregnancy. Similarly, employers may not change a worker's job description and then eliminate the new job via reorganization.
- Employers may not engage in discriminatory practices against men whose wives or partners become pregnant. It should be noted, however, that application of this law may vary from state to state, since states have different views of the rights of married and unmarried couples.
- Employers can not demand medical notes from a pregnant woman's doctor concerning her work status if they do not require similar documentation from doctors of other employees who have short-term disabilities.
The above guidelines add up to a very simple mandate for employers: Treat your pregnant employees no differently than you would any other employees.
MANAGING THE LOSS OF EMPLOYEES DURING PREGNANCY AND MATERNITY LEAVE
Obviously, pregnant employees should not have to endure discrimination from their employers. Indeed, many researchers, executives, and business owners contend that employers that are understanding and treat their pregnant employees fairly can often count on a heightened level of loyalty from that employee upon her return from maternity leave. But businesses also have to recognize that employee pregnancy means the loss—sometimes temporary, sometimes permanent—of workers, some of whom may be quite valuable to the firm's operation.
Businesses, then, have to figure out how to balance the needs of a pregnant employee with the operational imperatives of running a business. In order to effectively manage this issue one must look carefully at the job being done by the pregnant woman and plan for how this job will be handled while she is still working and during her maternity leave.
Not surprisingly, prior planning is often cited as an essential element of effectively managing the impact of pregnancies on business operations. Business owners and managers should study in advance how the pregnant person's responsibilities will be handled in her absence. Many experts encourage those owners and managers to talk openly with the pregnant employee about possible work dispersal options. The pregnant employee is often the person best equipped to make knowledgeable decisions about allocation of responsibilities. Moreover, opening and maintaining good communication with the pregnant employee can provide owners and managers with the information (anticipated length of maternity leave, restrictions on travel, etc.) they need to make informed decisions about business operations.
In addition, companies have to make sure that other employees that are impacted by a staffer's absence due to pregnancy are adequately compensated for the extra work that they take on. Employees that are asked to "cover" for a pregnant colleague for an extended period of time without receiving any parallel adjustment in compensation or recognition will quickly recognize that their employer is in essence trying to get something for nothing. Employers who do this may manage to keep all facets of the business running fairly smoothly, but it can also erode employee loyalty to the business and create needless friction between the pregnant employee and her coworkers.
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Karla, Ritu. "Maternity Leave: Less Pay, More Time Off." The Hartford Courant. 14 October 2005.
Lindemann, Barbara. American Discrimination in Employment Law. January 2003.
Shellenbarger, Sue. "Pregnant Employees Worry About Effects of Workplace Stress." Wall Street Journal. 26 July 2000.
Sparrow, Stephanie. "Ways of Keeping Mum." Personnel Today. 17 January 2006.
U.S. Department of Justice. Equal Employment Opportunity Commission. "Pregnancy Discrimination Charges: EEOC & FEPAs Combined FY 1992—FY 2005." 27 January 2006.
U.S. Department of Labor. "Compliance Guide to the Family and Medical Leave Act." Available from http://www.dol.gov/esa/whd/fmla// Retrieved on 2 May 2006.