The Pregnancy Discrimination Act of 1978

How the Law Protects Pregnant Women at Work

Working pregnant woman

Source: The Balance Career

BY DAWN ROSENBERG MCKAY 

Updated June 11, 2020

The Pregnancy Discrimination Act prohibits employers from making hiring and other job-related decisions that discriminate against women who are pregnant.

Finding out you are pregnant is a very joyous thing for most women—news you will likely look forward to sharing with all your friends and family—but it might be somewhat stressful to tell your coworkers about it. Once they know, your boss will too, and while your colleagues may be wonderfully receptive of this news, not all in the workplace may be. Pregnancy discrimination is a real thing.

The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces federal employment discrimination laws, reports that in fiscal year 2019, it received 2,753 complaints of pregnancy discrimination.2 Many women are fired or passed over for a promotion after they announce their pregnancy. Before sharing your good news in the workplace, know your rights under the law and what to do if a potential or current employer doesn’t abide by them.

How the Pregnancy Discrimination Act Protects Women

The Pregnancy Discrimination Act requires employers to treat pregnant women the same way they do all other workers or job applicants. It is an amendment to Title VII of the Civil Rights Act of 1964 and is covered under sex discrimination. Employers may not make decisions about hiring applicants or firing or promoting workers based on pregnancy, childbirth, or related medical conditions. All companies that employ 15 or more people are subject to this law.3 

Here is how the law protects pregnant job seekers and employees:

  • Employers cannot refuse to hire applicants because of their pregnancy or pregnancy-related conditions. An employer is not required, however, to hire an unqualified candidate or one who is less qualified than another.
  • Employers can’t require pregnant workers to submit to special procedures that determine their ability to perform job duties unless the employer holds all other employees and job applicants to the same requirement.
  • If a pregnancy-related medical condition keeps a worker from performing job duties, the employer must not treat that individual any differently than other temporarily disabled employees in making accommodations.
  • Employers may not prohibit pregnant employees from working and may not refuse to allow them to return to work after giving birth.
  • Employer-provided health insurance plans must not treat pregnancy-related conditions any differently than they do other medical issues.
  • Employers can’t require pregnant workers to pay larger health insurance deductibles than non-pregnant employees.4

What Should Victims of Pregnancy Discrimination Do?

If your employer or prospective employer has discriminated against you, file a claim with the EEOC. It is essential to be able to state what led to your conclusion. Have as much proof as possible to back up your claim including names of witnesses. Otherwise, it is only your word against your employer’s. 

Employees must file a claim within 180 days of the event. This time limit is extended to 300 days if there is a state or local law that also covers pregnancy discrimination. Job applicants must file a claim within 45 days.5

Step-by-Step Guide to Filing Charges:

  1. Go to the EEOC Public Portal to submit an inquiry. Answer the five general questions listed there. Your answers will determine if the EEOC can help you. Alternatively, you can submit an inquiry at one of EEOC’s 53 field offices located throughout the county or by phone at 1-800-669-4000.
  2. If you are using the EEOC Public Portal and are told the agency can help, go ahead and submit your inquiry. Remember that submitting an inquiry is only the first step and is not the same as submitting a charge of discrimination. It allows you to set up an intake interview with an EEOC staff member at one of 53 field offices located around the United States or by phone. Enter your contact information when requested.
  3. After filing your inquiry and scheduling an intake interview, the EEOC will ask supplemental questions to help begin the process of filing charges. This will occur before your interview.
  4. After your intake interview, decide whether to file a charge. Only after filing one, which can be in person or through the online portal, but not over the phone, will the EEOC notify your employer.

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Racial Discrimination is Pervasive in America’s Workplaces

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If you don’t think racism permeates American society, just ask an employment attorney.

Source: EHS Today

June 2020

By David Sparkman

It may be difficult to believe for people who haven’t experienced it, but active racism permeates all too many American workplaces. We’re not referring to “microaggressions” or subtle, unthinking bias reflected in hiring and promotion—we’re talking about routine abuse involving racial epithets and displays of symbols that threaten violence.

In every case that has reached America’s court system, another thing is usually made depressingly clear: The employer was informed of this unacceptable behavior and either chose to do nothing to end it, and in some cases actually led and participated in the abuse.

If you doubt this may be true, consider the experience over the years of Richard B. Cohen, an attorney with the law firm of FisherBroyles, who represents employers. He informed us recently: “I’ve written numerous articles and blog posts over the last 15 years about racial animus still rearing its ugly head in the workplace—and involved in virtually every such case where the victim is an African-American there is the presence of the N-word—or worse, a noose. Or both!”

And if you also are tempted to believe that this behavior is waning and that casual racism is little more than a fading relic of the past, you need to understand that this is a problem that persists and continues to manifest itself in almost every part of the country and in widely varying workplaces.

On June 2, the Equal Employment Opportunity Commission (EEOC) filed suit in federal court charging the CCC Group Inc. construction company for numerous instances of this kind of behavior that took place at a worksite in the state of New York. In its announcement, EEOC pointed out that “one white supervisor attempted to snare an employee with a noose” while another one “told an African-American employee that for Halloween, ‘You don’t even have to dress up. I will dress in white and put a noose around your neck and we’ll walk down the street together.’”

Jeffrey Burstein, regional attorney for the EEOC’s New York District Office, noted that this was just one of the most recent of numerous examples of abhorrent racial discrimination and harassment that African-American employees have experienced over the years. “The use of a noose is especially vicious,” he said. “Such misconduct violates federal law and common decency.”

This terrible behavior directed at African-American employees hasn’t slowed down, according to Cohen. “The workplace is a microcosm of society; in other words, what happens in the workplace is simply a reflection of the dynamics of society’s tensions and conflicts, as can painfully be seen these days on the streets of hundreds of America’s cities and towns.” 

Johnny C. Taylor, Jr., president and CEO of the Society for Human Resource Management (SHRM), points out, “For many people, the workplace is often the first, and sometimes only, place they encounter people unlike themselves. That experience—what happens in the workplace—shapes our thinking about others, and we take that out into the community and home with us.”

Taylor adds, “Rooting out and exposing bias in our workplaces, especially unconscious bias, can have a transformative effect on the larger world we move through.”

Incidents Pile Up

Consider these incidents of workplace racism that have been reported over the last three years:

● A noose was found in an Ohio foundry, and the EEOC says one of the company’s top officials routinely subjected employees to derogatory racial comments.

● A life insurance company agreed to pay $20.5 million to employees who alleged race, national origin and sex discrimination, and retaliation. African-Americans were referred to as “lazy,” had stress balls thrown at them, and were subjected to racially demeaning cartoons, while a high-level manager called African-American female employees the company’s “resident street walkers.”

● At an Illinois fence installation company, a black employee was repeatedly subjected to racial slurs and comments and other offensive conduct, including the display of a noose. Although the company was aware that racial harassment was occurring, it took no action to stop it., EEOC reported.

● A Georgia grocery store owner allegedly subjected three African-American employees to daily use of the N-word and called them “monkey” and other racial epithets. EEOC said the owner also prominently displayed racially offensive posters in a non-public work area.

● At a Minnesota mattress manufacturer, it was found by EEOC that employees were subjected to racial harassment in the form of displays of KKK hoods, nooses and verbal expressions of racial slurs and jokes.

● A Minnesota construction company settled with the EEOC after being accused of subjecting two African-American employees to racial harassment by a white supervisor, which included making racially derogatory comments and use of the N-word, and making a noose out of electrical wires and threatening to hang them.

● At a Brooklyn-based construction company, black laborers were routinely referred to by the N-word, “gorilla” and similar epithets. An employee who complained was fired—another common experience in these cases.

Not surprisingly, most of these incidents are also accompanied by complaints alleging other kinds of discrimination, particularly when it came to work assignments, promotions and disciplinary actions.

The EEOC and employment lawyers like FisherBroyles’ Cohen are not the only ones losing patience with this sort of behavior by employers and their continuing unwillingness to stamp it out. Federal courts in the past had upheld the idea that the single use of the N-word in a workplace could not constitute legal discrimination unless it was part of a pattern of other discriminatory behavior, but in recent years some courts have begun to hold that it can be.

“The latest events show that racism—overt or implicit—is unfortunately embedded in the very fabric of our society, and therefore, in our workplaces,” Cohen doesn’t hesitate to inform us. “Until racism is eliminated from our society, it will, of course, pop up in our workplaces.”

He makes it clear that employers would be well-advised to take all steps necessary to stamp out acts or expressions of racism by going beyond simply making it clear that this is behavior that will not be tolerated. “I know that many companies have employee handbooks with anti-harassment and discrimination provisions—which all employers should have—but employers must do more.”

Human resources experts say that employers need to insist on including conducting professional training sessions for all employees, much the same as employers are expected to do when it comes to sexual harassment training, which is now required by law in several states.

“Make sure that senior managers are acutely aware of your anti-harassment policies and procedures and provide good role models for the workplace—top-down behavior is perhaps the most important preventive measure which you can take,” Cohen stresses. “Employees look to the executives as role models to see what is or is not acceptable behavior.”

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Here’s Why Retaliation Claims Are Easier To Prove In Court Than Discrimination Claims: The FedEx Case

Source: Forbes Magazine

By Eric Bachman

Decorative Scales of Justice in the Courtroom
GETTY

Most laws prohibiting discrimination based on race, sex, religion, etc. also make it unlawful to retaliate against someone who complains about or helps to support another person’s claim of discrimination.

While these complementary protections serve a common purpose of helping to stamp out discrimination, an important distinction exists in how courts analyze retaliation versus discrimination claims. That is, different definitions of what constitutes an “adverse employment action” apply depending on whether the lawsuit alleges retaliation or discrimination.

A federal appellate court, the U.S. Court of Appeals for the Sixth Circuit, analyzed this issue over the summer in a case involving an employee who claimed that her employer retaliated against her after she filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

Factual background

Sheryl Hubbell worked for FedEx SmartPost, Inc. (FedEx) for about eight years until Fed Ex fired her in 2014. While employed, Hubbell filed at least two EEOC charges alleging gender discrimination and retaliation for complaining about it.

Hubbell later sued FedEx in court for terminating her employment in retaliation for filing those EEOC charges.

Hubbell won her trial in district court, and a jury awarded $85,600 in front and back pay damages, $30,000 in non-economic damages, and $300,000 in punitive damages. FedEx appealed the decision, arguing Hubbell’s presented insufficient evidence to support her claim of retaliation.

Legal Analysis

Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against an employee who has filed a charge with the EEOC. As part of their initial burden of making out a retaliation claim (called the prima facie case), a plaintiff must show that the employer’s conduct was “materially adverse,” which in this case means that “it might well have dissuaded a reasonable working from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

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Problem, Danger, Risk and Liability words on a speedometer 3d rendering GETTY

FedEx argued that Hubbell did not satisfy the definition of “adverse employment action” under Title VII, which the company cited as conduct that “affect[s] the terms and conditions of employment.” Notably, however, FedEx cited the definition of adverse employment action required of plaintiffs alleging discrimination, not retaliation, under Title VII.

A plaintiff suing under Title VII’s anti-retaliation provision must demonstrate that the adverse employment action “might well dissuade a reasonable worker from making or supporting a charge of discrimination.” The definition of adverse employment action under a Title VII retaliation claim is less demanding (and thus easier to meet for employees) than a claim of discrimination.

The trial court had incorrectly held that the only materially adverse action in support of Hubbell’s retaliation claim had to do with her not being able to clock in and out at the same time as her fellow employees. The Sixth Circuit rejected this analysis and found that, under the correct “might well dissuade” standard for retaliation claims, evidence remained of other adverse employment actions taken in retaliation for filing the EEOC charge.

This included evidence showing FedEx subjected Hubbell to increased supervision, specifically that her bathroom breaks were timed and tracked. Hubbell’s supervisor also issued Hubbell written discipline, which she claimed was unjustified and violated company policy.

Accordingly, the appellate court affirmed Hubbell’s jury trial verdict on retaliation.

Key Takeaways

  • The definition of a “materially adverse action” differs between claims of retaliation and claims of discrimination.
  • Discrimination claim definition of “materially adverse action” = “substantially affects the terms and conditions of employment”
  • Retaliation claim definition of “materially adverse action” = an action that “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination” (which can include things like being ostracized, subject to increased scrutiny, etc.)
  • The showing required for a Title VII retaliation claim is thus less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim.

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Employers con harassment victims by means of a “see no evil, hear no evil” policy.

By Bryan A. Chapman, Esquire

Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace.  As a result, some employers have adopted a “see no evil, hear no evil” strategy.

Management may be fully aware that sexual harassment (or some other type of workplace harassment) is occurring, but deliberately pretend that is is not occurring in order to avoid liability. Management may discourage a victim of sexual harassment from complaining. The victim’s complaint of harassment may be ignored or discarded by management. If the victim continues to complaint, management may seek to discredit the victim by papering their personnel file with allegations of poor job performance and misconduct, which may lead to termination.  Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.’” 830 F.2d at 558 (quoting Katz) (emphasis added).  Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)

“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003)  “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

Therefore, victims of workplace sexual harassment (or any other kind of workplace harassment) should document each incident of harassment in real time.  Documentation can be evidence of sexual harassment.  Victims of workplace sexual harassment should seek corroboration from witnesses and other victims of sexual harassment; there is strength in numbers. A victim of sexual harassment should review their employer’s sexual harassment policy and follow the procedure. Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC). A victim should put their complaint in writing and keep a copy. Sending a copy of the harassment complaint to the employer, by email, can create an indelible record.

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An Employer Has A Duty To Investigate And Remedy

By Bryan A. Chapman, Esquire

Employers have a duty to investigate complaints of discrimination, harassment, and retaliation.  “When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.” EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 

In conclusion, “[a]n employer who fails to investigate and remedy reported sexually harassing [and other discriminatory] behavior risks being held vicariously liable for the conduct of the harassing employee.”  Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

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Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

By Bryan A. Chapman, Esquire

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct. 

If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should anticipate retaliation and not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced civil rights attorney as soon as possible.

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Hostile Work Environment And Diminished Job Performance

By Bryan A. Chapman, Esquire

A hostile work environment is a workplace that is hostile, abusive, and intimidating.  Federal laws prohibit workplace harassment that is based on an employee’s race, sex, religion, national origin, age, or disability. 

In Amirmokri v. Baltimore Gas & Electric Co., 60 F3d 1126 (4th. Cir. 1995), based on evidence that Amirmokri was called names including “the ayatollah,” “the local terrorist,” and “camel jockey,” the Fourth Circuit Court of Appeals allowed the case to go to trial on the issue of hostile environment harassment.  The Court focused on evidence that Amirmokri’s supervisor had intentionally embarrassed him by assigning him impossible tasks and telling co-workers that he was incompetent, which may have negatively affected both his performance and its evaluation.

Working in a hostile work environment can result in diminished job performance.  In Weiss v. United States, 595 F.Supp. 1050 (1984), a Virginia federal court stated, “…an employer cannot use an employee’s diminished work performance as a legitimate basis for removal where the diminution is the direct result of the employer’s discriminatory behavior.” Henson v. City of Dundee, 682 F.2d 897, 910 (5th Cir.1982); DeGrace v. Rumsfeld, 614 F.2d 796, 804 (1st Cir.1980).

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Race-Based Claims Filed Under 42 USC 1981 Offer Advantages.

By Bryan A. Chapman, Esquire

Section 1981

Originally included as part of the Civil Rights Act of 1866, Section 1981(a) states in relevant part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other

Race and ethnicity based discrimination claims, as well as, retaliation claims, brought under 42 USC Section 1981 have advantages over similar claims brought under Title VII.

Under Section 1981:

  • Plaintiffs are not required to submit their claims for review by the Equal Employment Opportunity Commission (EEOC).
  • Employer are exposed to unlimited damages.
  • The statute of limitations can be as long as four years.
  • Both employers and individual employees can be named as defendants.
  • Employers with fewer than fifteen employees can be held liable for damages.

Under Title VII:

  • Plaintiffs must submit their claims for review by the Equal Employment Opportunity Commission (EEOC) and EEOC must issue a “Right to Sue” letter.
  • Employers are exposed to a maximum of $300,000 in compensatory and/or punitive damages.
  • The statute of limitation for filing a complaint with EEOC is generally 180 days.
  • Only employers can be named as defendants.
  • Employers with fewer than fifteen employees cannot be held liable for damages.

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