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Fighting For Equal Treatment Of Pregnant Employees
The Employee's Voice And Advocate

CENTRAL FLORIDA PREGNANCY DISCRIMINATION ATTORNEYS BASED IN OCALA, FLORIDA

Although pregnancy discrimination was made unlawful by federal law in 1978, women affected by pregnancy, childbirth, or pregnancy-related medial conditions continue to endure significant obstacles to equal treatment in the workplace. The on-going fight for equal treatment of pregnant employees is perhaps best illustrated by the decisions of state and federal courts in Florida, which continued to be handed down through 2012, holding that pregnancy discrimination is not unlawful under Florida law. In other words, these courts not only resisted providing pregnant employees with the right to equality of treatment at work, they ruled that pregnant employees do not have any rights under Florida law. In 2014, these archaic decisions were finally swept aside when the Florida Supreme Court fulfilled the promise of equality of treatment by holding that Florida law makes pregnancy discrimination illegal. Having fought against pregnancy discrimination for more than 15 years, our Ocala based pregnancy discrimination lawyers are committed to ensuring that pregnant employees are treated the same as non-pregnant employees and helping them pursue all legal remedies they are entitled to under the law.

Laws Prohibiting Pregnancy Discrimination

Under Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, employers are prohibited from discriminating against women on the basis of pregnancy, childbirth, or related medical conditions. The PDA’s amendment to Title VII clarified that discrimination based on pregnancy is a form of sex discrimination prohibited by Title VII. The protection against pregnancy discrimination extends to all employees and applicants for employment. The prohibition against pregnancy discrimination applies to all aspects of employment, including hiring, pay, job assignment, promotion, leave, employment benefits, discipline, and termination. The PDA and FCRA further mandate that employers must treat women affected by pregnancy, childbirth, or related medical conditions the same as non-pregnant employees, whether male or female, who are similar in their ability or inability to work.

Pregnancy-Related Medical Conditions

The PDA and FCRA forbid from discrimination on the basis of pregnancy, childbirth, or related medical conditions. Pregnancy-related medical conditions include morning sickness, near-miscarriage, doctor-ordered bed rest, childbirth, and recovery from childbirth. Employers are prohibited from discriminating against women with a pregnancy-related medial condition. For example, an employer cannot discharge a pregnant employee whose accumulated sick or vacation leave is sufficient to cover all of her absences from work because she missed work due to pregnancy-related medical difficulties. Employers are also required to treat women with a pregnancy-related medical condition the same as non-pregnant employees, whether male or female, who are similar in their ability or inability to work. This means that employers must make the same employment benefits, such as health insurance, disability insurance, light duty or modified duty, job transfer, sick leave, and leave with or with pay, available for pregnancy-related medical conditions as the employer makes available for other medical conditions.

Discrimination Based On The Capacity To Become Pregnant

Discrimination on the basis of pregnancy is a form of discrimination against women, and one of the stereotypes associated with sex discrimination is that women are less desirable to employ because they might become pregnant. Employers cannot discriminate against women on the basis of their capacity to become pregnant. For example, an employer cannot refuse to hire, fail to promote, or discharge a woman because of concerns that she might become pregnant. Likewise, employers cannot discriminate against women because they intend to become pregnant. For example, an employer cannot refuse to hire, fail to promote, or discharge a woman because of concerns that she intends to become pregnant.

An employer is also prohibited from discriminating or taking adverse employment action against women for having an abortion, not having an abortion, or considering an abortion. An employer is also forbidden from attempting to exert pressure or coercion against a pregnant employee with respect to a decision to have an abortion or not have an abortion. For example, an employer cannot tell an employee that she needs to have an abortion in order to be hired, obtain a promotion, or avoid termination. These principles were illustrated in Paz v. Wauconda Healthcare and Rehab Centre, 464 F.3d 639 (7th Cir. 2006), where U.S. Seventh Circuit Court of Appeals found that a supervisors “repeated suggestions that [the pregnant employee] should have an abortion” was circumstantial evidence that she was discharged on the basis of pregnancy.

Pregnant Employees Must Be Treated The Same As Non-Pregnant Employees

Under the PDA and FCRA, employers must treat women affected by pregnancy, childbirth, or related medical conditions the same as non-pregnant employees, whether male or female, who are similar in their ability or inability to work. In construing this statutory requirement, the U.S. Supreme Court in UAW v. Johnson Controls, 499 U.S. 187 (1991) emphasized that unless a pregnant employee differs from other employees in her ability or inability to work, she must be treated the same as non-pregnant employees, whether male or female, with respect to all aspects of employment. This statutory mandate provides two broad forms of protection for employees affected by pregnancy, childbirth, or related medical conditions.

Similar In Ability To Work

First, employers must treat pregnant employees who are able to work the same as non-pregnant employees who are similar in their ability to work. In other words, as explained by the Supreme Court in Johnson Controls, women as capable of doing their jobs as non-pregnant employees cannot be forced to choose between having a child and having a job. Rather, pregnant employees who are able to work must be allowed to work under the same conditions as other non-pregnant employees.

Similarly Limited In Ability To Work

Second, employers must treat pregnant employees who are limited in their ability to work because of pregnancy or pregnancy-related medical conditions the same as non-pregnant employees who are similarly limited in their ability to work. This means that an employer must treat an employee who is temporarily unable to do the job because of pregnancy or pregnancy-related medical conditions in the same manner as the employer treats other non-pregnant employees who are temporarily unable to do their job because of sickness, injury, or disability. Stated another way in language often used by courts, an employee who is unable to do the job because of pregnancy or pregnancy-related medical conditions is temporarily disabled, and employers must treat pregnant employees who are temporarily disabled the same as non-pregnant employees who are temporarily disabled.

Treating Pregnant Employees The Same As Non-Pregnant Employees: A Case Study

Application of the PDA’s requirement that employers must treat women affected by pregnancy, childbirth, or related medical conditions the same as non-pregnant employees who are similar in their ability or inability to work most frequently arises when a pregnant employee is temporarily unable to perform an essential function of her position because of physical limitations resulting from her pregnancy or pregnancy-related medical conditions. In other words, the pregnant employee is temporarily disabled because of pregnancy or pregnancy-related medical conditions. For example, a pregnant employee’s doctor determines that she cannot lift more than 15 pounds after the first 24 weeks of her pregnancy. If lifting more than 15 pounds is an essential function of her position, employers sometimes will discharge the pregnant employee on grounds that she is unable to perform the essential functions of the position held.

When a pregnant employee is terminated under such circumstances, she can utilize the PDA’s mandate that employers treat pregnant employees who are limited in their ability to work because of their pregnancy or pregnancy-related medical conditions the same as non-pregnant employees who are similarly limited in their ability to work in attempting to prove that her termination was based on pregnancy. In utilizing the PDA’s mandate of similar treatment, the pregnant employee is seeking to demonstrate that the employer treats pregnancy or pregnancy-related conditions differently from other medical conditions. Under the PDA and FCRA, employers cannot treat pregnancy or pregnancy-related medical conditions less favorably than other medical conditions.

Same In Inability To Work

In attempting to prove pregnancy discrimination, the pregnant employee would seek to establish that the employer does not terminate other non-pregnant employees who have the same limitation in their inability to work. For example, the pregnant employee would attempt to demonstrate that the employer did not terminate non-pregnant employees who were temporarily unable to lift more than 15 pounds because of sickness, injury, or disability. Instead of terminating non-pregnant employees who were temporarily unable to lift more than 15 pounds because of a sickness, injury, or disability, the employer accommodated such non-pregnant employees by:

  • * Allowing other employees to perform the lifting of objects more than 15 pounds for non-pregnant employees;
  • * Modifying the functions or duties of the position held by non-pregnant employees;
  • * Transferring non-pregnant employees to a light duty position without a weight lifting requirement; or
  • * Allowing non-pregnant employees to take leave with or without pay.

If the employer did not terminate non-pregnant employees under the same circumstances, the inherent question which arises is why, when the employer did not discharge non-pregnant employees who had the same limitation in their inability to work, did it terminate the pregnant employee? The employer’s more favorable treatment of non-pregnant employees who had the same limitation in their ability to work may provide proof that the termination decision was based on pregnancy.

Similar In Inability To Work

In attempting to prove pregnancy discrimination, the pregnant employee would seek to demonstrate that the employer does not terminate other non-pregnant employees who are similar in their inability to work. For example, the pregnant employee would attempt to demonstrate that the employer did not terminate non-pregnant employees who were temporarily unable to perform the essential functions of their position because of sickness, injury, or disability. For example, instead of terminating non-pregnant employees who were temporarily unable to perform the essential functions of their position because of a sickness, injury, or disability, the employer accommodated such non-pregnant employees by:

  • * Allowing other employees to perform an essential function of the position for non-pregnant employees;
  • * Modifying the functions or duties of the position held by non-pregnant employees;
  • * Transferring non-pregnant employees to a light duty position; or
  • * Allowing non-pregnant employees to take leave with or without pay.

If the employer made any such accommodation for non-pregnant employees while refusing to accommodate the pregnant employee, the inherent question which arises is why, when the employer accommodated non-pregnant employees who are similarly limited in their inability to work, could it not accommodate the pregnant employee? The employer’s less favorable treatment of the pregnant employee under the same or similar circumstances may provide evidence that the termination decision was based on pregnancy.

Forced Leave Because Of Pregnancy

Under the PDA and FCRA, an employer cannot require an employee to take leave because she is pregnant so long as she is able to perform the essential functions of the position held. Under the PDA, as explained by the U.S. Supreme Court in UAW v. Johnson Controls, 499 U.S. 187 (1991), the “decision to work while [ ] being pregnant . . . is reserved for each individual women to make for herself” and “pregnant women who are able to work must be permitted to work under the same conditions as other employees.” Thus, an employer’s policy or practice that requires a pregnant employee to stop working regardless of her ability to continue working constitutes pregnancy discrimination. Moreover, an employer cannot justify a forced leave on grounds that it is acting in the pregnant employee’s best interest because of dangers to her health or the fetus. For example, an employer cannot remove a pregnant employee from the work schedule, even though she is able to perform the essential functions of the position held, because the company does not want her to imperil her health or her to lose the unborn child.

In order to require an employee to take leave because she is pregnant, an employer must prove that non-pregnancy is a bona fide occupational qualification (BFOQ). In asserting the BFOQ defense, an employer is attempting to justify a policy or practice that discriminates on the basis of pregnancy and would otherwise constitute a violation of the PDA and FCRA. To establish the BFOQ defense, the employer must demonstrate that pregnancy actually interferes with the employee’s ability to do the job. In Johnson Controls, the U.S. Supreme Court characterized the BFOQ defense as a “narrow exception” to the prohibition against pregnancy discrimination which applies only in “special situations.” In that case, the Supreme Court further explained that the BFOQ defense cannot be justified based on risks to the pregnant employee, dangers to the fetus, customer preferences, or concerns about an employer’s tort liability.

Voluntary Leave Because Of Pregnancy

Employers must allow pregnant employees with physical limitations resulting from pregnancy, childbirth or related medical conditions to take leave on the same terms and conditions as non-pregnant employees who are similarly limited in their inability to work. For example, if an employer allows a non-pregnant employee who is limited in his or her ability to work to take sick leave, then the employer must allow pregnant employees who are similarly limited in their inability to work to take sick leave. Moreover, the employer cannot impose conditions on the leave for pregnant employees unless the same conditions are imposed on the leave for non-pregnant employees. Although the PDA and FCRA do not require employers to provide any specific benefits to pregnant employees, they do require employers to give pregnant employees the same benefits provided to non-pregnant employees.

The PDA and FCRA do not require employers to give employees a leave of absence for pregnancy, childbirth, or related medical conditions. However, as our section on the Family and Medical Leave Act (FMLA) explains, the FMLA entitles eligible employees up to 12 weeks of leave during any 12-month period because of the birth of a child and to care for the newborn child. The benefits of the FMLA are available to employees who have been employed for at least 12 months and have worked for at least 1,250 hours during the 12 months before the leave is requested.

Discrimination On The Basis Of Pregnancy Stereotypes

Under the PDA and FCRA, employers are prohibited from making employment decisions based on stereotypes about pregnancy. For example, an employer is forbidden from refusing to hire or terminating a pregnant employee based on stereotypes about a pregnant employee’s job commitment, physical ability to do the work, work attendance, or need for leave. Set forth below are remarks reflecting pregnancy stereotypes made by supervisors or managers in actual pregnancy discrimination cases filed in state and federal courts. The employee claiming pregnancy discrimination used the remarks in attempting to prove that pregnancy played a role in the challenged employment decision.

  • * Remarking that the pregnant employee was “not coming back after this baby.”
  • * Declaring that the pregnant employee “should not have taken the job if she was going to get pregnant.”
  • * Stating to the pregnant employee that “if you were my wife, I would not want you working after having children.”
  • * Notifying the employee, after she returned to work following childbirth, that she was being given a position “for a new mom to handle.”
  • * Telling the pregnant employee that she “no longer fit the company’s idea of a twenty-four-hour-a-day manager.”
  • * Commenting that the pregnant employee was “too big to be working” and her “belly would be in the way” when she was working.
  • * Informing the employee, after notifying her that she was terminated, “hopefully this will give you some time to spend with your children.”
  • * Telling the pregnant employee they did not want to “add stress to the baby” and the company “would be liable if something happened to the baby.”

Most Frequent Type Of Pregnancy Discrimination

Under the PDA and FCRA, an employer may be found liable for pregnancy discrimination under a theory of disparate treatment discrimination. In the pregnancy discrimination context, disparate treatment exists when the employer treats a pregnant employee differently or less favorably from non-pregnant employees. For example, the employer terminates a pregnant employee for being late, but the employee does not terminate non-pregnant employees who are late. Likewise, the employer terminates a pregnant employee because of absenteeism, but the employer does not terminate non-pregnant employees with the same or a more egregious record of absenteeism. Similarly, the employer terminates a pregnant employee for disrespectful conduct, but the employer does not terminate non-pregnant employees who committed acts of comparable or greater seriousness. As these examples are intended to illustrate the disparate treatment discrimination theory, whether legal grounds exist for filing a pregnancy discrimination case would depend on the facts and circumstances in each particular case.

Evidence Showing You Were Subject To Pregnancy Discrimination

As discussed more fully in our section pertaining to discrimination, because an employer will rarely admit to a discriminatory motive when subjecting an employee to an adverse employment action, employment discrimination cases almost always must be proven by circumstantial evidence. In our section pertaining to discrimination, we identify some of the types of circumstantial evidence that can be used to prove that an individual’s race, color, national origin, sex, pregnancy, religion, age, or disability may have played a role in the challenged employment decision.

The circumstantial evidence identified in our section pertaining to discrimination applies with equal force in the context of pregnancy discrimination claims. However, some forms of circumstantial evidence arise more frequently or are uniquely applicable in the context of pregnancy discrimination. In the pregnancy discrimination context, the types of circumstantial evidence that also can be used to prove that an individual’s pregnancy, childbirth, or pregnancy-related medical condition may have played an impermissible role in the challenged employment decision include:

  • * In a termination case, the employer replaces the employee alleging pregnancy discrimination with a person who is not pregnant. In a failure to hire or promote case, the employer selects a person who is not pregnant.
  • * Comments by supervisors or managers reflecting pregnancy stereotypes.
  • * Making suggestions to or exerting pressure against the pregnant employee with respect to a decision to have or not have an abortion.
  • * Subjecting the employee to the challenged employment decision shortly after she announced an intention to become pregnant.
  • * A short passage of time from when the employee notifies the employer that she is pregnant or has a pregnancy-related medical condition and the adverse employment action. For example, the pregnant employee is fired 4 weeks after notifying the employer that she is pregnant.
  • * Treating the pregnant employee differently or less favorably from non-pregnant employees, whether male or female, with respect to attendance, leave, job modification, work schedule adjustments, or light duty work.
  • * Sudden negative treatment or hostility towards the pregnant employee by a supervisor or manager after learning of her pregnancy or pregnancy-related medical condition, such as insulting her, ignoring her, failing to give her work-related assistance, giving her a greater work load, giving her a disadvantageous work schedule, scrutinizing her job performance, reducing her hours, giving her a poor performance evaluation, and subjecting her to disciplinary action.
  • * Derogatory pregnancy-related remarks, insults, or jokes by co-employees, supervisors, or managers.
  • * The employer’s failure to stop derogatory pregnancy-related remarks, insults, or jokes despite a supervisor’s or manager’s knowledge of such comments.
  • * Evidence that the employer has discriminated against other pregnant employees. For example, evidence that the employer has discriminated against other pregnant employees in hiring, pay, promotion, or termination can be used as circumstantial evidence for inferring discrimination against the pregnant employee.

This list is not exclusive and the types of evidence reflecting that an individual suffered pregnancy discrimination may take a variety of forms. However, if any of these things have happened to you or occurred in the workplace, you may have suffered pregnancy discrimination depending on the facts and circumstances in your particular case.

Discriminatory Remarks Reflecting Pregnancy Discrimination

Although not required to prove pregnancy discrimination, derogatory pregnancy-related remarks, insults, or jokes by supervisors or managers are the most powerful evidence of pregnancy discrimination. The derogatory pregnancy-related remarks, insults, or jokes can be about the employee claiming pregnancy discrimination, other pregnant employees in the workplace, or pregnant employees in general. For purposes of illustration, set forth below are examples of derogatory pregnancy-related remarks, insults, and jokes made by supervisors or managers in actual pregnancy discrimination cases filed in state and federal courts. The employee claiming pregnancy discrimination used the remarks in attempting to prove that the challenged employment decision was based on pregnancy, childbirth, or related medical conditions.

  • * Remarks reflecting a bias, hostility, or negative attitude towards the pregnant employee because of her pregnancy, childbirth, or related medical conditions, such as stating: “Oh, my God, she’s pregnant again”; employee’s “attitude has changed since you have become pregnant”; employee’s pregnancy “compromised the company”; employee’s pregnancy was “not good for her job”; manager “threw his hands up in the air and said, Oh great, she is pregnant”; employee’s future employment was “at risk” because of her pregnancy; employee “could not work here while she was pregnant”; “at this point we are calling it quits, your pregnancy is stressing us out”; and “if you have another baby, I’ll invite you to stay home.”
  • * Derogatory pregnancy-related remarks about the pregnant employee, such as: stating the pregnant employee is “huge,” “waddles,” “ruined her body,” “faking” a pregnancy-related medical condition, “sick all of the time,” and “taking advantage of her pregnancy”; telling the employee that “her pregnancy was a sign that she was lazy” and she “should have an abortion.”
  • * Remarks reflecting a bias, hostility, or negative attitude towards pregnant employees, such as stating: “I don’t like pregnant women working for me”; “with all of these pregnant women around, I guess we should stop hiring women”; “a pregnant woman who was showing should not wait tables”; company should “never hire another woman of childbearing age”; and “an employer could easily get away with discharging a pregnant employee by stating that the position was eliminated.”
  • * Remarks reflecting pregnancy stereotypes.

Pregnancy Harassment

As discussed more extensively in our section regarding hostile work environment harassment, the PDA and FCRA also protect employees against harassment based on pregnancy, childbirth, or related medical conditions. Harassment on the basis of pregnancy, childbirth, or related medical conditions is a form of sex discrimination. Generally, pregnancy harassment takes the form of derogatory pregnancy-related remarks, insults, or jokes against the victim. Harassment on the basis of pregnancy, childbirth, or related medical conditions which is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create a hostile working environment violates the PDA and FCRA.

Protection Against Retaliation

As discussed more fully in our section pertaining to retaliation, employees are protected against retaliation when they complain about discrimination or harassment on the basis of pregnancy, childbirth, or related medical conditions. Under the PDA and FCRA, employers are forbidden from subjecting an employee to an adverse employment action in retaliation for making a complaint about discrimination or harassment on the basis of pregnancy, childbirth, or related medical conditions. Prohibited retaliatory adverse employment actions include reduction in pay or hours, demotion, denial of promotion, suspension, and termination.

Employment Law Blog

We offer more information about pregnancy discrimination and harassment in our employment law blog.

Contact Us Today For A Free Initial Consultation

If you are experiencing or have experienced pregnancy discrimination in the workplace, please contact us for a free initial consultation with our Central Florida pregnancy discrimination attorneys. You will receive personalized and individual attention from our employment law attorneys. We have extensive experience litigating pregnancy discrimination cases in state and federal court. Our employee rights law firm pregnancy discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your pregnancy discrimination case and fight for your employee rights.

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