Pregnancy discrimination claims are on the rise. The United States Equal Employment Opportunity Commission recently released statistics showing a 39% increase in these types of claims over the last decade.1 The New York State Division of Human Rights also has experienced a significant increase in charges of pregnancy discrimination.2 Thus, it is imperative for employers to understand what their legal obligations are to pregnant and recently-pregnant employees to avoid or defend themselves against such claims.
There are numerous laws that may govern an employer's obligations vis-à-vis a pregnant worker. Title VII of the Civil Rights Act of 1964 ("Title VII") expressly prohibits employers from discriminating against employees "because of, or on the basis of pregnancy, childbirth or related medical conditions."3 This prohibition extends to all aspects of the employment relationship including hiring, firing, compensation, and extension of benefits.4 The New York State Human Rights Law and The New York City Human Rights Law similarly prohibit employers from discriminating against their employees on the basis of pregnancy, childbirth and related medical conditions.5
The Americans with Disabilities Act ("ADA") prohibits discrimination against qualified individuals with disabilities who can perform the essential functions of their job with or without reasonable accommodation.6 The New York State and New York City Human Rights laws similarly prohibit discrimination against employees on the basis of disability.7 These three laws also require employers to reasonably accommodate employees with disabilities by, among other things, modifying work schedules, restructuring jobs, or extending unpaid leave.8 Employees who experience complications during pregnancy or in connection with childbirth may be deemed "disabled" for purposes of city, state or federal law and become entitled to protection and reasonable accommodation under these laws as well. Indeed, it is typical for pregnant employees to be deemed "disabled" for at least six to eight weeks at the time of childbirth and to qualify for disability benefits under the New York State Workers' Compensation Law during this time.9
Lastly, the Family and Medical Leave Act ("FMLA"), which applies to employers with fifty or more employees, mandates that employers provide 12 weeks of unpaid leave and continued medical coverage on the same terms and conditions applicable to active employees during the 12-week period to eligible employees. The FMLA provides job security to women who take leave in connection with the birth of a child because it requires that employers reinstate them to their same job or a substantially similar job upon the expiration of the 12 weeks, with some narrow exceptions.10 Not all employees at large employers are entitled to FMLA leave, however. Among other things, employees must have worked for at least 12 months and at least 1,250 hours to qualify for protection under the FMLA.11 Although New York does not have a state-law parallel to the FMLA, many states do. For example, Connecticut's family leave statute provides eligible employees (having worked 12 months and 1,000 hours) with up to 16 weeks of leave in any 24 month period.12 Similarly, New Jersey's Family Leave Act provides up to 12 weeks of leave in any 24 month period to eligible employees who have worked for at least 12 months and 1,000 hours.13 Employers must ensure that they are providing pregnant employees with the maximum leave benefit provided for under the state leave law or FMLA and proceed with caution when terminating an employee who has requested or taken leave to minimize the risk of a retaliation or interference with benefits claim under these laws.
Employer Risks And Potential Exposure
The perils facing employers who are not properly informed about their legal obligations to pregnant employees are great. Specifically, in addition to monetary damages, employers can face negative publicity, high turnover among their women employees, and low employee morale if they are charged with violating any of the laws protecting pregnant or recently pregnant workers. Recent cases highlight these risks. For example, there was widespread media coverage in August about a woman in Long Island who claimed that soon after she told her employer - the Brew House Restaurant - that she was pregnant, she was subjected to inappropriate questions about her pregnancy, denied work assignments and ultimately terminated because of her pregnancy. The restaurant denied the allegations, and although there had not (and has not) been any finding of liability, the restaurant nevertheless had to deal with the repercussions of negative press coverage about the claim.
In another case, Mullin v. Rochester Manpower Inc., an employer lost a motion for summary judgment against a former employee who claimed she was discriminatorily fired in violation of Title VII shortly after she told her supervisor that she was five weeks pregnant.14 The employee's manager allegedly questioned the employee's commitment to her job and did not clearly articulate all of the reasons for terminating the employee - facts which the court found raised issues for a jury. A court similarly denied summary judgment to the employer in Klausner v. Industrial Risk Insurers.15 In that case, the plaintiff brought claims under Title VII and the New York State and New York City Human Rights Laws asserting that she had been discriminatorily discharged because of her pregnancy while on short-term disability leave due to complications with her pregnancy. The employer denied the claims and asserted that it had discharged the employee because she had not provided sufficient medial documentation about her need for leave. The court expressed skepticism with the employer's reason in part because the employer had not given the employee additional time to provide supplemental medical documentation, and thus found that there were issues of fact that had to be submitted to a jury. Finally, while employees generally have a more difficult time proving retaliatory discharge under the FMLA than they might have proving discrimination under Title VII (or state or local human rights laws), employers are nevertheless increasingly facing FMLA retaliation and interference claims from pregnant and recently pregnant employees and incurring substantial attorney's fees defending against them.16
Further, jury awards in gender discrimination cases (which include pregnancy-related claims) can be in the millions of dollars, with an average compensatory damage award of $312,685.17 Needless to say, there are strong reasons for employers to minimize the risks of pregnancy-related claims.
Guidelines For Avoiding Claims
Fortunately, there are several things that employers can do to minimize their risks.
First, employers should have proper policies in place that are distributed to their employees and posted prominently at their worksites. These policies include an equal employment opportunity policy, non-discrimination policy, and an FMLA policy. Policies concerning absenteeism, lateness, sick leave, vacation and personal days, also need to be clear and specific, as applicable, concerning the number of days to which an employee is entitled, pay consequences of the absence, notice and documentation required, and coordination with disability and child-care leave entitlements and/or benefits.
Second, employers should train managers about applicable employment laws and company policies, as well as about their role in assisting the company comply with the law and enforcing the company's policies.
Third, employers need to appoint a person or persons to oversee their employment policies and practices, including administration of benefits and pregnancy-related leave requests. These individuals must keep up to date on the employment laws and receive training to ensure that they can properly advise managers and staff.
Fourth, employers should consult legal counsel before taking adverse action against employees who are pregnant or who are on pregnancy-related disability or FMLA leave.
Taking these steps not only minimizes the risks of claims, but also improves morale and can assist in retaining talented women. Being a "family-friendly" employer that properly informs pregnant employees of their rights and extends pregnancy and child-care leave benefits does not necessarily mean lower productivity or higher benefit costs. Indeed, many large companies proudly advertise their family-friendly policies and expound upon the multiple benefits they reap from such policies. For example, the Vice President of Diversity at Prudential Financial Inc. commented recently that the family-friendly policies at Prudential give the company "business-based flexibility."18 In addition to Prudential, companies such as Bristol Meyers Squibb Co., General Mills, and Colgate-Palmolive Co., recently made the list of the Top 100 companies to work for as rated by Working Mother magazine and were able to prominently publicize and be recognized for their family-friendly programs and policies.19 In sum, an ounce of prevention is worth a pound of cure when dealing with pregnant workers. 1 Pregnancy Discrimination Charges EEOC and FEPA's Combined: FY1992 - FY2002, at http://www.eeoc.gov/stats/pregnanc.html.
2 NYS Division of Human Rights, Public Information Dept. response to inquiry on Pregnancy Discrimination charges filed from 1992 - 2002.
3 42 U.S.C. §2000e(k).
5 N.Y. Exec. Law §296; N.Y.C. Administrative Code §8-107(1)(a); Klausner v. Industrial Risk Insurers, 98 CV 1267, 1999 U.S. Dist. LEXIS 10219 (S.D.N.Y. July 7, 1999).
6 42 U.S.C. §12112(b)(5)(B); Stone v. City of Mt. Vernon, 118 F.3d 92 (2d Cir. 1997).
7 N.Y. Exec. Law §296(1); N.Y.C. Administrative Code §8-107(1)(a).
8 42 U.S.C. §12111(9); N.Y. Exec. Law §296; N.Y.C. Administrative Code §8-107(15)(a).
9 N.Y. Workers' Comp. Law §201(9)(B). If an employer has a supplemental short-term disability policy that provides short-term disability benefits over and above what New York State Law provides, the employee who has just given birth would qualify for these benefits as well during the period her doctor certified her as being disabled.
10 29 C.F.R. §825.215.
11 29 U.S.C. § 2611(2)(A).
12 Conn. Gen. Stat. §§ 31-51kk - 31-51ll.
13 N.J. Stat. Ann. § 34:11B-4.
14 Mullin v. Rochester Manpower Inc., 204 F. Supp.2d 556 (W.D.N.Y. 2002).
15 Klausner v. Industrial Risk Insurers, 98 CV 1267, 1999 U.S. Dist. LEXIS 10219 (S.D.N.Y. July 7, 1999).
16 Bond v. Sterling Inc., 77 F. Supp.2d 300 (N.D.N.Y. 1999) (Court granted employer summary judgment on plaintiff's FMLA retaliation claim where plaintiff was unable to show that the employer's proffered reason for terminating was a pretext for retaliation after she took pregnancy-related leave).
17 Employment Practice Liability: Jury Award Trends and Statistics, at 27 (2001). These figures represent the range and mean of federal jury awards in sex discrimination cases from 1994 through 2000.
18 The Inside Story: How do you create a family-friendly workplace, Working Mother, Oct. 2003, at 100.
19 100 Best of 2003, Working Mother, Oct. 2003, at 67, also available at http://www.workingmother.com/100Bestindex.shtml.
Katharine H. Parker is a Partner in Proskauer Rose LLP's Labor and Employment Department. She can be reached at firstname.lastname@example.org. The author wishes to acknowledge the contributions of Evandro C. Gigante in the preparation of this article.