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Protecting Victims Of Pregnancy Discrimination
The Employee's Voice And Advocate

Pregnancy Discrimination Lawyers Serving Central Florida, Including Citrus, Marion & Alachua Counties

Q: Am I protected by federal law against pregnancy discrimination?

A: The Pregnancy Discrimination Act, which is federal law, protects employees from discrimination on the basis of pregnancy in the workplace. The Pregnancy Discrimination Act specifies that sex discrimination includes discrimination on the basis of pregnancy. This means that pregnancy discrimination is a form of sex discrimination.

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Q: Am I protected by Florida law against pregnancy discrimination?

A: In Delva v. Continental Group, 137 So.3d 371 (Fla. 2014), the Florida Supreme Court held that the prohibition against discrimination on the basis of sex in the Florida Civil Rights Act includes discrimination on the basis of pregnancy. Prior to Delva, many Florida state courts and federal courts in Florida held that the Florida Civil Rights Act does not protect employees from pregnancy discrimination. In response to Delva, the Florida Legislature amended the Florida Civil Rights Act and expressly made pregnancy discrimination an unlawful employment practice.

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Q: Am I protected against discrimination because of a pregnancy-related medical condition?

A: Under the Pregnancy Discrimination Act, employers are prohibited from discriminating against employees on the basis of pregnancy, child birth, or pregnancy-related medial conditions. The Pregnancy Discrimination Act mandates that employers treat employees affected by pregnancy, childbirth, or pregnancy-related medical conditions the same as non-pregnant employees who are similar in their ability or inability to work.

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Q: Can my employer ask me whether I intend to become pregnant or discriminate against me because I intend to become pregnant?

A: The Pregnancy Discrimination Act does not prohibit an employer from asking an employee whether she intends to become pregnant. However, the Pregnancy Discrimination Act makes it unlawful for an employer to discriminate against an employee because she intends to become pregnant. Thus, an employer cannot subject an employee to an adverse employment action, such as reduction in pay or hours, failure to promote, or discharge because she intends to become pregnant. When an employer asks an employee whether she intends to become pregnant and subsequently subjects the employee to an adverse employment action, the employer’s question is evidence that can be used to prove that she was discriminated against on the basis of pregnancy.

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Q: Can an employer ask me during a job interview whether I am pregnant or intend to become pregnant?

A: The Pregnancy Discrimination Act does not prohibit an employer from asking a job applicant whether she is pregnant. However, if the job applicant is pregnant and not hired, evidence that the employer asked the job applicant whether she is pregnant can be used to prove that she was not hired because of pregnancy. Asking a job applicant whether she is pregnant reflects that the employer harbored stereotypical beliefs about pregnancy, including the job applicant’s attendance, schedule, ability to work, or commitment to the job because of her pregnancy.

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Q: Is my employer allowed to make employment decisions on the basis of pregnancy-related stereotypes and assumptions?

A: Employers are forbidden from making employment decisions on the basis of pregnancy-related stereotypes and assumptions. When an employer makes an employment decision on the basis of a pregnancy-related stereotype or assumption, the employer has discriminated against the employee on the basis of pregnancy in violation of the Pregnancy Discrimination Act and Florida Civil Rights Act.

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Q: What is the legal significance of remarks reflecting pregnancy-related stereotypes or assumptions?

A: Because the Pregnancy Discrimination Act prohibits employment decisions on the basis of pregnancy-related stereotypes and assumptions, remarks reflecting pregnancy-related stereotypes or assumptions made by managers or supervisors are evidence of pregnancy discrimination. When managers or supervisors make remarks reflecting pregnancy-related stereotypes or assumptions, the employee claiming pregnancy discrimination can use the remarks to prove that pregnancy played an impermissible role in the challenged employment decision.

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Q: What are some examples of remarks reflecting pregnancy-related stereotypes or assumptions?

A: Pregnancy-related stereotypes and assumptions generally relate to the attendance, schedule, ability to work, or commitment to the job of women affected by pregnancy, childbirth, or pregnancy-related medical conditions. Examples of remarks reflecting stereotypes or assumptions about a pregnant employee include: refusing to hire a pregnant employee because she would miss “too much” work or will be “unreliable” because of her pregnancy; discharging a pregnant employee because of concerns about her desire or ability to continue working after giving birth; terminating a pregnant employee with the explanation that she would be “unable to fulfill” her job duties because of her pregnancy; refusing to promote a pregnant employee because her pregnancy does “not fit the company’s image” of dedication to work.

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Q: Am I protected against pregnancy discrimination after giving birth?

A: The protection afforded to employees against pregnancy discrimination is not limited to the time period during which they are pregnant. As explained by the court in Donaldson v. Am. Banco Corp., Inc., 945 F.Supp. 1456 (D. Colo. 1996), “it would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place.” Thus, courts have rejected arguments by employers that no pregnancy discrimination can be established when the challenged employment action occurred after childbirth.

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Q: Is a pregnant employee whose pregnancy causes her to miss work entitled to more favorable treatment?

A: The Pregnancy Discrimination Act does not require an employer to treat more favorably a pregnant employee whose pregnancy or pregnancy-related medical condition causes her to miss work, as compared to non-pregnant employees who miss work because of a different medical reason. Thus, employers are not required to give preferential treatment to pregnant employees who miss work because of pregnancy or a pregnancy-related medical condition. Rather, employers must treat pregnant-employees whose pregnancy or pregnancy-related medical condition causes them to miss work the same as non-pregnant employees who miss work because of a different medical reason.

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Q: Can I be fired for missing work because of pregnancy when non-pregnant employees are not fired when missing work for a different medical reason?

A: The Pregnancy Discrimination Act mandates that employers treat pregnant employees the same as non-pregnant employees. If an employer does not discipline or terminate non-pregnant employees for missing work for medical reasons, then the employer is prohibited from treating pregnant employees differently when they miss work because of pregnancy or a pregnancy-related medical condition. In other words, if the employer ignores the absences of non-pregnant employees who miss work for medical reasons, then the employer must ignore the absences of a pregnant employee whose pregnancy or pregnancy-related medical condition caused her to miss work. For example, if an employer does not discipline or terminate non-pregnant employees for missing two days of work for medical reasons, the employer is prohibited from terminating a pregnant employee for missing two days of work because of pregnancy or a pregnancy-related medical condition. If the employer terminates the pregnant employee but not the pregnant employees under such circumstances, the employer’s differences in treatment are evidence of pregnancy discrimination.

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Q: Can an employer violate its own policy when firing me for excessive absences when my pregnancy caused me to miss work?

A: If an employer fires a pregnant employee whose pregnancy or pregnancy-related medical condition caused her to miss work for excessive absences even though the pregnant employee missed no more than her sick time allowed under company policy, the employer’s violation of its own policy is evidence of pregnancy discrimination. Moreover, an employee alleging pregnancy discrimination is not required to identify other non-pregnant employees who were treated differently from her when the employer violates its own policy in firing her.

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Q: Am I entitled to an accommodation because of pregnancy or a pregnancy-related medical condition?

A: Under the Pregnancy Discrimination Act, employers must treat pregnant employees the same as non-pregnant employees who are similar in their ability or inability to work. This means that if an employer provides accommodations to non-pregnant employees for medical reasons then the employer must provide you with the same or similar accommodations because of pregnancy or a pregnancy-related medical condition. For example, if an employer modifies the job duties of non-pregnant employees for medical reasons, such as by providing them with light duty work or shifting some job duties to other employees for medical reasons, then employer must provide you with the same or similar modifications because of your pregnancy or pregnancy-related medical condition.

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Q: Am I entitled to a leave of absence from work because of pregnancy, child birth, or a pregnancy-related medical condition?

A: Under the Family Medical Leave Act, eligible employees have the right to take twelve weeks of leave, over any period of twelve months under the following applicable circumstances: (1) because of the birth of the employee’s child or to take care of the employee’s newborn child; or (2) because of a serious health condition that makes the employee unable to perform the functions of the employee’s position. However, there is a broad array of procedural requirements that an employee must satisfy in order to be eligible for leave under the Family Medial Leave Act. The procedural requirements include: (1) the employee was employed by the employer for at least twelve months from the date of the commencement of leave; (2) the employee worked at least 1,250 hours during the pervious twelve-month period; (3) the employer employed fifty or more employees; and (4) the employee worked at an office or facility where the employer employed at least 50 employees within seventy-five miles of the office or facility. Upon return from leave under the Family Medical Leave Act, the employee is to be restored to his or her former position or to an equivalent position.

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Q: If I am not eligible for FMLA leave, am I entitled to a leave of absence from work because of pregnancy, child birth, or a pregnancy-related medical condition?

A: If you are not eligible for leave under the Family Medical Leave Act, your eligibility for a leave of absence because of pregnancy, childbirth, or a pregnancy-related medical condition primarily depends on how the employer treats non-pregnant employees under the same or similar circumstances. If the employer allows non-pregnant employees, who are not eligible for leave under the Family Medical Leave Act, to take a leave of absence from work for medical reasons and to return to work upon expiration of the leave, then the employer must treat you the same as other non-pregnant employees. For example, when an employer provides an employee, who is not eligible for leave under the Family Medical Leave Act, with four weeks of medical leave and allows the employee to return to work upon expiration of the leave, the employer must provide you with the same or similar amount of leave for pregnancy, childbirth, or a pregnancy-related medical condition and allow you to return to work upon expiration of the leave.

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Q: Can my employer require me to take a leave of absence against my wishes because of my pregnancy?

A: So long as you are able to perform the essential functions of your position, an employer cannot require you to take a leave of absence from work because of your pregnancy. Moreover, an employer cannot require you to take a leave of absence from work because of your pregnancy even if the employer believes the leave of absence is in your best interest or the best interest of the unborn child. As the U.S. Supreme Court explained in UAW v. Johnson Controls, 499 U.S. 187 (1991), “[p]regnant women who are able to work must be permitted to work [under] the same conditions as other employees” and employers are “not permitted to force women who become pregnant to stop working regardless of their ability to continue.” The Johnson Controls Court further explained that “decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.”

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Q: Can my employer transfer me against my wishes to a position it considers safer because of my pregnancy?

A: So long as you are able to perform the essential functions of the position, an employer cannot transfer you to a position it considers safer because of your pregnancy. Moreover, as explained by the Johnson Controls Court, an employer’s tort liability for allowing a pregnant employee to continue working in a position it considers unsafe because of her pregnancy would be remote if it “fully informed” the pregnant employee of the risks inherent in performing the job and otherwise did not act negligently.

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Q: Are there any circumstances where my employer can make me take a leave of absence or transfer me to another position against my wishes because of my pregnancy?

A: In order to lawfully require an employee to take a leave of absence or transfer another employee to another position against her wishes because of pregnancy, employer must prove that non-pregnancy is a bona fide occupational qualification (BFOQ). The U.S. Supreme Court has described the BFOQ defense as a very narrow exception to the Pregnancy Discrimination Act’s prohibition against discrimination on the basis of pregnancy, childbirth, or pregnancy-related medical conditions. Under Supreme Court precedent and federal case law applying that precedent, the BFOQ defense only applies in exceptional circumstances. Consequently, courts have very rarely found that an employer established a pregnancy-based BFOQ defense.

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Q: What is the most common way employers discriminate against pregnant employees?

A: Pregnancy discrimination most frequently occurs under circumstances where employers do not treat women affected by pregnancy, childbirth, or pregnancy-related medical conditions the same as non-pregnant employees. Instead, employers treat pregnant-employees differently and less favorably from non-pregnant employees. For example, an employer does not terminate and provides light duty work to non-pregnant employees who cannot perform the essential functions of their position for medical reasons, but terminates and does not provide light duty work to a pregnant employee who cannot perform the essential functions of her position because of a pregnancy-related medical condition. Likewise, an employer discharges a pregnant employee because of a customer complaint, but does not discharge non-pregnant employees who were targets of the same or similar type of customer complaints. The differences in treatment are circumstantial evidence used to prove the employer’s discriminatory intent and are sufficient in most cases, standing alone, to prove pregnancy discrimination.

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Q: Other than treating me less favorably from non-pregnant employees, what are some other circumstances that may reflect pregnancy discrimination?

A: The evidence an individual claiming pregnancy discrimination can use to prove her case may take a variety of forms. No single type of evidence is required to prove pregnancy discrimination. The different types of evidence that can be used to prove pregnancy discrimination include: (1) the reason given by the employer for the challenged employment decision is a lie, a phony reason, or has no basis in fact; (2) the employer violated its own company policy when making the challenged employment decision; (3) the employer selectively enforced a company work rule or policy against the employee when making the challenged employment decision; (4) the employer targeted the employee for discharge after learning of her pregnancy, such as by papering her personnel file with disciplinary actions or negative performance evaluations; (5) the employer terminated the employee shortly after learning of her pregnancy; (6) the employer failed to ask the employee for her “side of the story” before making the challenged employment decision; (7) the employer gave shifting or inconsistent explanations for the challenged employment decision; and (8) the employer discriminated against other employees on the basis of pregnancy.

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Q: Am I protected against harassment because of my pregnancy?

A: Employees are protected against harassment on the basis of pregnancy which is sufficiently severe or pervasive to alter the employee’s conditions of employment and create a hostile work environment. Pregnancy harassment claims are analyzed just like claims of sexual harassment. Instead of being harassed because of sex as in a sexual harassment case, an employee is harassed because of pregnancy in a pregnancy harassment case. Generally, pregnancy harassment takes the form of derogatory or demeaning pregnancy-related remarks, insults, or jokes by co-employees, supervisors, or managers, including comments reflecting stereotypes or assumptions about pregnancy, childbirth, or pregnancy-related medical conditions.

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Q: Am I protected against retaliation for complaining about pregnancy discrimination?

A: Under the Pregnancy Discrimination Act and Florida Civil Rights Act, employees are protected from retaliation when they complain about pregnancy discrimination, whether against themselves or other employees, in the workplace. Employees are also protected from retaliation when they file a charge of discrimination alleging pregnancy discrimination with the U.S. Equal Employment Opportunity Commission.

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Q: Do You Have More Questions Or Believe You Have A Case?

A: If you have more questions or believe that you have a pregnancy discrimination case, please contact our office to speak with an employment lawyer. You will never have to pay to speak with an employment law attorney here. We can help you take action to protect and vindicate your employee rights. Located in Ocala, Florida and representing employees throughout Central Florida, we take employment discrimination and retaliation cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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