How to manage the risk of pregnancy discrimination claims

By Higginbotham on December 31 , 2014

Thinkstock_Pregnant Office Worker

Expecting a child is one of life’s greatest experiences. However, it sometimes turns into a terrible experience when working expectant mothers and their employers aren’t on the same page. This scenario happens more frequently than you might imagine – in fact, pregnancy discrimination lawsuits are on the rise.

While discrimination against expecting mothers has been a longstanding issue, there’s been a trend in favor of pregnant workers in recent years. In 2008, Congress amended the Americans with Disabilities Act (ADA) to include pregnancy-related lifting restrictions as a disability. At least nine states now require employers to accommodate pregnant women, and several other states are considering similar laws. That’s in addition to the Pregnancy Discrimination Act of 1978, which says pregnant workers should be treated equally to those who are “similar in their ability or inability to work.”

A case currently being heard in the U.S. Supreme Court highlights the often dicey legal landscape surrounding issues with pregnant employees. In this case, a United Parcel Service employee sued the company for refusing to accommodate her with light duty work during her pregnancy. Two lower federal courts ruled against her, and she was forced to take unpaid leave without benefits. The issue is now in the U.S. Supreme Court, divided down party lines: the conservative justices claim the employee was seeking the kind of “most favored nation” status used in trade agreements, while the liberal justices agree with UPS that the employee’s pregnancy didn’t meet any of the company’s three criteria for workplace accommodation – an on-the-job injury, a disability recognized by the Americans with Disabilities Act (ADA), or the loss of federal certification to drive.

Great expectations lead to great risks

Despite the laws, there are still plenty of danger zones. Those laws aren’t always obvious or easily understood. You could still make a legal slip-up, or an employee could misunderstand the reasons behind your decisions. And those slip-ups and misunderstandings can easily turn into costly lawsuits.

Below are five common sense tips for avoiding lawsuits:

  • Know the laws. Anti-discrimination laws can be complicated, and you need to know which ones apply to your business. The Pregnancy Discrimination Act (PDA) and the Family Medical Leave Act (FMLA) are the two primary federal laws that apply to pregnant employees. But the PDA only applies if you have 15 or more employees, and you need at least 50 employees working in a 75-mile radius before the FMLA applies. And don’t forget about state and local laws. To be safe, consult with a good management-side employment attorney.
  • Put it in writing. To protect yourself against many employment actions, make sure you have a written policy on how pregnant employees will be treated. Clearly spell out things such as what type of benefits you’ll offer, if you’ll provide time off (paid or unpaid), and if you’ll offer light duty accommodations.
  • Communicate. Most pregnant employees still want to perform their jobs well, but they might be anxious about the security of their position. Sit down and talk to them about any concerns. If you offer maternity leave, talk to your employees about their plans. Be careful not to patronize; the most well-intentioned discriminatory treatment can be illegal.
  • Get Employment Practices Liability insurance (EPLi). EPLi can help defend your business and pay for damages (up to policy limits) resulting from wrongful termination claims, wage and hour violations, discrimination, sexual harassment, invasion of employee privacy and other costly landmines.

When you need help protecting your business from the legal minefield of discrimination suits, contact the experts at Higginbotham Insurance.


Tags: Employee Benefits