Pregnancy Discrimination FAQ

Pregnancy discrimination is making international headlines. Our friend and fellow Employers Counsel Network editor, John Phillips, posted an interesting article today on his blog, titled, “Questions About Pregnancy,” regarding pregnancy discrimination and Spain’s pregnant defense minister.

He poses some interesting questions about balancing an employer’s interests versus those of a pregnant woman in the workplace.

See my earlier post, “More Than Hollywood Noticing Baby Bump” regarding the alarming increase in pregnancy discrimination claims.

What exactly are your obligations to a pregnant employee?

Under the Pregnancy Discrimination Act (PDA), you’re prohibited from treating pregnant employees differently than other employees with temporary restrictions. For example, if a pregnant employee is restricted from lifting more than 20 pounds during her last trimester, you must treat her the same as a male employee who suffered a back injury and was temporarily unable to lift the same amount.

The PDA does not require you to make special accommodations like the Americans with Disabilities Act does. It only requires you to treat pregnant employees the same as you would treat nonpregnant employees with temporary restrictions.

What can you do to avoid violating the PDA?

Here are some basic guidelines:

• Don’t discuss an applicant’s pregnancy with her at the employment interview or base your hiring decisions on her pregnancy or absences that may be caused by pregnancy.

• When an employee informs you that she’s pregnant, congratulate her. Don’t start interrogating her about the leave she will need or make any other comments about how her pregnancy might affect her job.

• Provide optional alternative jobs if the pregnant employee’s current position could be harmful to her fetus. Be aware, however, that the decision to change duties is hers, not yours.

• If a pregnant employee is unable to perform her job or requests light duty, treat her like you would any other employee in a similar situation.

• If you take any performance-related disciplinary actions during an employee’s pregnancy or maternity leave, do so cautiously! Make sure to document your actions, providing legitimate non-discriminatory reasons for the action.

Of course, dealing with pregnant employees may implicate other employment laws, including the Americans with Disabilities Act, and the Family and Medical Leave Act. I will be presenting When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims in Las Vegas and Nashville, TN at the upcoming Advanced Employment Issues Symposium. Click here for more details about the Symposiums.