Pregnant workers in jobs that involve discrete projects or assignments may find themselves being passed over for opportunities because of their pregnancy. While employers must consider how to best staff projects and run their operations, failing to consider pregnant workers for desirable assignments could constitute impermissible discrimination. Passing over workers for promotions or other advancements on the basis of their pregnancy is another example of impermissible discrimination.
Federal and state laws make it illegal to take “adverse employment actions” against workers for discriminatory reasons based on protected characteristics, including pregnancy. The United States Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act, prohibits employers from discriminating against pregnant employees in any aspect of employment, including pay, job assignments, promotions, training, and fringe benefits (such as leave and health insurance). The New Jersey Law Against Discrimination (NJLAD) similarly bans pregnancy discrimination in the workplace.
Under these laws, employers in New Jersey must treat women who are pregnant or suffering pregnancy-related conditions (e.g., loss of pregnancy) in the same manner as other employees who are similar in their ability (or inability) to do their jobs. If an employer transfers, reassigns, demotes, or fails to offer opportunities to a worker on the basis of her pregnancy, it may be in violation of these laws.
Pregnant women might find they are offered fewer shifts, assignments that are less desirable, or opportunities that offer lower pay or benefits. In some cases, an employer may tell a pregnant worker the transfer is for her benefit or due to a perceived inability to perform her job duties. An employer cannot exercise “benign discrimination” by unilaterally assigning a pregnant worker to less demanding or safer job duties on the basis of her pregnancy if it constitutes a damaging adverse employment action (reduces pay, benefits, advancement opportunities, etc.).
Like other protected health conditions, pregnancy-related disabilities are subject to the Americans with Disabilities Act (ADA). This federal law requires most employers to engage in a good-faith interactive process to develop accommodations for employees who have conditions that affect their ability to do their jobs, including pregnancy and pregnancy-related medical conditions. Provided that a worker can perform the essential functions of her job with or without accommodation, the law requires that an employer provide reasonable accommodations during the course of her pregnancy and as a result of any physical limitations due to childbirth. Many conditions caused by pregnancy are within the scope of the ADA, including nerve pain, nausea and discomfort, and gestational diabetes. If an employee is able to perform the essential functions of her job with or without accommodation, her employer must provide her with reasonable accommodations during her pregnancy and as a result of any physical limitations due to childbirth in the same manner as they provide accommodations for any other impairment protected under the ADA.
Pregnant workers may also find themselves subject to intrusive, offensive, or demeaning comments and behavior in the workplace based on their condition. These can be jokes or disparaging about their appearance or condition, comments about their physical limitations, sexist or misogynistic discussions about the impact of their pregnancy on their career, unwanted touching, and more.
Under the NJLAD, employers must take steps to actively prevent workplace harassment, investigate reports of harassment, and promptly address inappropriate conduct. In cases of active harassment, failure to prevent harassment of an employee by her coworkers, or retaliation against a worker who reports harassment, an employer may be liable for damages.
Because each workplace is different, your situation must be evaluated on a case by case basis by an experienced legal professional to determine if it involves impermissible discrimination. If you believe you have experienced pregnancy discrimination or if you need help requesting accommodation from your employer, contact the Mark Law Firm.
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