Pregnancy Discrimination in the Workplace: Frequently Asked Questions
It’s never enjoyable to be laid off from a job, but losing your job can be a nightmare when you’re pregnant. The last thing you need when starting a family – or growing one – is financial uncertainty or the stress and anxiety that arises when one is targeted because of their pregnancy. If you are facing discrimination because of your pregnancy or childbirth, contact a White Plains pregnancy discrimination lawyer today.
What is Pregnancy Discrimination?
Pregnancy discrimination is a form of gender discrimination in which a female job applicant or employee is treated in a discriminatory manner because of her pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Under the law, it is illegal to fire or refuses to hire a woman because she is pregnant.
In New York, the law prohibits employers from taking into account a woman’s pregnancy or childbirth in determining the terms or conditions of employment, including hiring, termination, compensation, benefits, job assignments, promotions, training, and other aspects of employment. In addition, pregnancy discrimination includes harassment based upon a worker’s pregnancy, childbirth, or a medical condition related to pregnancy or childbirth, which results in what is known as a “hostile work environment.”
What are Pregnancy-Based Reasonable Accommodations?
Employers must provide accommodations to all of its employees equally, meaning they cannot deny pregnancy-related reasonable accommodations while approving them for other medical conditions. If a pregnant employee provides notice of a pregnancy-related medical condition that creates a “disability” for the employee, her employer must engage in an interactive process to determine what types of reasonable accommodations may be needed to manage the pregnancy-related medical condition.
Under New York state law, unless the accommodation would cause “undue hardship” to an employer, pregnant workers are eligible for certain reasonable accommodations to address pregnancy-related conditions. Depending on the pregnant employee’s needs, these accommodations can include:
Intermittent rest or water breaks
A modified work schedule
Flexibility to attend medical appointments
Temporary leave during pregnancy
Temporary leave to recover following childbirth
Employers may not fire an employee because of pregnancy or childbirth. If any type of leave is taken, whether FMLA leave, temporary disability, or New York Paid Leave, to bond with a newborn, employers must hold the job (or a comparable one) open and cannot retaliate against an employee for taking leave.
While employers are required to grant leave for pregnancy-related conditions and childbirth, they are also required to give pregnant employees the choice to work as long as they are able to perform their jobs. For example, if an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer cannot require her to remain on leave until the baby’s birth. Nor may an employer impose policies or guidelines that prohibit an employee from returning to work for a certain period of time following childbirth.
Breastfeeding Rights in the Workplace
Under New York law, employers may not treat an employee differently because she is breastfeeding. Nursing mothers must be given guaranteed break times (which can be unpaid) to express breast milk at work for up to three years following childbirth. In addition, employers must provide a private location, making reasonable efforts to find an area in close proximity to the employee’s workspace, where breast milk can be expressed. In addition, discrimination by supervisors and co-workers based on exercising the right to express breast milk is unlawful.
I’m Pregnant and Received a Severance Agreement. Should I Sign It?
A severance agreement is a contract that an employer provides to an employee who has been fired, laid off, or terminated for any other reason. Usually, a severance agreement will include a cash payment or a continuation of base salary for a specified period of time, as well as continued health insurance benefits or payment of COBRA coverage following termination. Employers are not required to offer a severance payment, nor are employees required to sign a severance agreement. If you are provided a severance agreement while you are pregnant or recently gave birth, you should be wary and tread carefully.
Were You Fired Because You Are Pregnant?
Before considering legal action, try to figure out whether you were merely fired while pregnant, or actually because you were pregnant. There is a tangible difference, and the answer is determinative of whether or not you have a valid claim of pregnancy discrimination. There is no question that you cannot be fired simply based upon your pregnancy. However, if you happen to be pregnant, but are having performance issues that are unrelated to your pregnancy, or your job is being eliminated for business reasons such as a corporate downsizing, technological innovation, layoffs, or budgetary reasons, you are not being wrongfully terminated. A termination while pregnant or after childbirth should be viewed suspiciously, however, as there are times when employers do find what seems like plausible excuses to terminate a pregnant employee’s job. Often the termination is actually based on their discriminatory biases and stereotypical beliefs about motherhood and a mother’s role in the home and workplace, and this is unlawful.
Did You Announce Your Pregnancy?
If you are the first among your co-workers to become pregnant while working for the company, your termination could potentially raise questions – but without more this may not necessarily evidence pregnancy discrimination. For example, if other women working for your company have become pregnant, gone through pregnancy and birth, been granted leave, and have returned to work without issue, your pregnancy may not be the cause of your termination. On the other hand, if every time an employee becomes pregnant, she is terminated by the company, with or without cause, a pattern of discrimination may emerge that is impossible to deny.
To assess whether you were fired because of your pregnancy, review the proximity in time between your announcement and your termination. Did you announce your pregnancy and very quickly thereafter, you were terminated? Or are there other factors at play that are entirely unrelated to your pregnancy? One detail that can be illuminating is the treatment of other pregnant workers by your company. Does the company have a history of firing women when they announce that they are pregnant, or once the physical signs of pregnancy become apparent? Unfortunately, sometimes smaller employers lack significant historical data to make an accurate assessment of an employer’s pattern of conduct with respect to pregnant employees.
The timing of the disclosure of your pregnancy and any resulting behavior by co-workers and management may also be telling. If you have recently announced your pregnancy, consider the reactions from your boss and other managers and co-workers. Were they generally happy for you? Has your boss been supportive and flexible with time off requests for prenatal appointments or to deal with the physical effects of pregnancy? Or have there been rude or disparaging comments made about your pregnancy, such as comments or jokes by co-workers that they will be required to put in extra work because of your pregnancy, or a boss complaining about the time off that is provided to pregnant women? These comments may serve as indicators of a person’s motivations and biases.
Did your employer decide to terminate your job following your announcement, despite there being no change to your productivity or job performance? Even terminations that are not close in time to the announcement of the pregnancy can potentially be discriminatory. Sometimes businesses decide to squeeze out every bit of productivity from a pregnant employee before she goes out on leave, with a plan to fire her at a later time because management feels inconvenienced by the pregnancy. By waiting for the “right” time after the pregnancy announcement, employers may believe they have a seemingly legitimate excuse for unlawful termination. Pay attention to situations like suddenly receiving a negative performance review or being put on a performance improvement plan (PIP) after becoming pregnant or giving birth. These may be warning signs that pregnancy discrimination is afoot.
What Do You Do Next?
It often comes as a shock to be terminated while pregnant, and employers often count on this to pressure a terminated employee into signing a disadvantageous severance agreement under time constraints. Of course, you are not legally required to sign the agreement just because your employer presents it.
It is best to run the agreement by an experienced pregnancy discrimination lawyer to review its terms and provide legal advice about your options. Your attorney can help you evaluate whether your termination may have been triggered by your pregnancy.
Should you sign the severance agreement?
So, should you sign the severance agreement? That determination is up to you, but is a decision best made in consultation with your attorney. If you believe that you were terminated because of your pregnancy, your attorney may be able to negotiate a better severance payment, or, if appropriate, you can refuse severance and file a lawsuit against your employer based on pregnancy discrimination or retaliation. This may entitle you to damages, including back pay, front pay, and compensation for emotional distress. Regardless of the reason for the termination, your lawyer may be able to renegotiate the terms of your severance agreement to best benefit you while you worry about more important things — like your newborn baby!
Consult with a Pregnancy Discrimination Attorney Before Proceeding.
If you are pregnant and are being terminated, laid off, fired — whatever your employer wants to call it — it is advisable that you consult with an employment lawyer before signing a severance agreement. While there are certainly legitimate reasons for terminating employees, including pregnant ones, it is also possible that you may have grounds for a wrongful termination or discrimination lawsuit related to pregnancy discrimination. First and foremost, you should be aware that signing a severance agreement acts as a waiver of all rights to sue your employer.
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Claudia Pollak, Esq. is an experienced Westchester and NYC-based employment lawyer representing employees facing discrimination, retaliation or wrongful termination because of their race, disability, pregnancy, sexual orientation, gender, or other protected characteristic. She also advises on executive severance agreements and restrictive covenants. Call her at 914-LAW-9111 (914-529-9111) for a free consultation.
Employees in Westchester County and other parts of New York state are protected from discrimination in employment based on a number of personal characteristics.
Some of our most vulnerable populations are experiencing increasingly stressful employment situations. In fact, many workers in America (up to 1 in 5) feel they work in a hostile or abusive work environment.
While many businesses have openly acknowledged the problems of discrimination and inequity facing black workers in America as a result of the Black Lives Matter movement, racial discrimination still regularly occurs in the workplace.
Whether your position is being eliminated in corporate downsizing, or you are getting laid off or fired for another reason, at some point in your life you may find yourself reviewing a severance agreement.
The last thing you need when you’re starting a family – or growing one – is financial uncertainty or the stress and anxiety that comes from becoming the target of discriminatory treatment at work because of your pregnancy.
New York Labor Law §194, requires that employees of a particular establishment be paid a wage that is equivalent to the wages paid to employees of the opposite sex, or of a different race or sexual orientation, or who are members of any other class of employees.
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