Understanding Pregnancy Discrimination and Your Rights as an Expecting Mother

Women shouldn’t
have to fear for their jobs when starting a family.  But, we hear about pregnancy discrimination in the workplace all the time.  Companies frequently do not abide by the Pregnancy Discrimination Act of 1978 or the U.S. Department of Labor’s Family Medical Leave Act.  Women are too often subject to unlawful actions made by employers because of pregnancy.
There are many different forms of pregnancy discrimination.  The majority include: reassignment to a department out of your career path or a lower paying position, refusal of medical health care benefits that are available to other employees, or cutting your hours and pay during pregnancy.
Here are some things you should know about the laws protecting women, and the action you should take if you believe you have been discriminated against.
U.S. Department of Labor’s Family Medical Leave Act
Under this act, employers with 50 or more employees must give up to 12 weeks of unpaid leave to employees that have worked for the company for at least 12 months and have clocked a minimum of 1,250 hours of service.  The FMLA regulates leave of absences that are necessary for one of the following reasons:

  • Childbirth and infant care of the employee’s newborn
  • Adoption or foster care placement with the employee
  • A serious health condition of an immediate family member that requires care
  • A serious health condition of the employee

 
Pregnancy Discrimination Act of 1978
The Pregnancy Discrimination Act of 1978 provides guidelines that employees and employers must follow during pregnancy to ensure that there are no discriminatory actions.

  • An employer cannot refuse to hire you because of your pregnancy as long as you can complete the functions of the job
  • If you are temporarily incapable of completing the tasks of your job because of your pregnancy, your employer must modify tasks and assignments (as done with other temporarily disabled employees).
  • You must be permitted to work as long as you can complete the functions of your job.
  • If you are provided with health insurance by your employer, the insurance must cover pregnancy-related expenses as it would for other medical conditions
  • When crediting seniority, vacation time, pay increases or other benefits, you must be treated the same as other temporarily disabled employees.

If you feel you have been discriminated against, take these steps:

  • Document any discriminatory conversations or occurrences.  Detail the time and place, as well as participants and witnesses.
  • Continue to perform your tasks and assignments, but start documenting how well you are performing.
  • Compile a record of previous performance reviews to keep as evidence.
  • Consider contacting your human resources department to file a complaint, and document your complaint within your own files.
  • Contact an attorney to discuss your options

To prove you have been discriminated against, you must fit this criteria:

  • Be a member of a protected class (as a woman, you are protected)
  • Meet the expectations of your job and your performance was up to par with your employer’s demands (this can be proven with your performance reviews, raises, promotions and your own documentation of such material)
  • Be fired, demoted, passed over for a promotion, not hired for a position, or suffered any other form of adverse action.
  • Be treated differently or less favorably than other employees with similar circumstances who were not a member of a protected class.

In court, your employer must provide a legitimate and non-discriminatory reason for the adverse action.   You must show that the employer’s reason is a pre-text (a false reason used to conceal the discriminatory action).  If you are able to prove their rationale is pre-textual, you have a chance of winning in front of a judge or jury.
Contact an attorney to discuss your circumstances and further explore your legal options.

Censoring your Social Media Page for Employment

Companies are using social media websites as an information gateway in hiring and monitoring employee behavior.  Sites like Facebook and Twitter are influential in the hiring process for employers, and can also result in termination if they see information that is not “appropriate employee behavior.”  Employers monitor social networking sites for provocative or inappropriate photos, drinking and drug use, bad-mouthing coworkers and much more.  They even measure your communication and creativity skills from monitoring your social networking sites.
While we all use our social networking sites to display information regarding our private life for friends and family, employers fear that proprietary information will be revealed over the web and they will be negatively represented in the online world.  If you are looking for a job or currently employed, follow this list of Do’s and Don’ts to clean up your page and remain in the safety zone of social media.

  1. DO delete or hide anything on your profile that employers may view negatively.  Remove pictures of spring break, vulgar comments or posts, rude language, and any commentary you may have posted about previous employers.  Remember there is no sense of “free speech” that is regulated in social media.  We’ve all heard the recent stories of New York teachers being fired for their online commentary of unruly classrooms and scandalous private lives.  It can happen to anyone, so keep your private thoughts and comments about your job to yourself.
  2. DON’T use social networking sites to vent about your job.  While you may need to talk about an overpowering boss or an arrogant coworker, never do it online.  While you may think your page is private, a coworker that you forgot you “friended” could take the page directly to your employer.  What you say online is permanent and is valid evidence that can be used against you in court and certainly by your employer or prospective employer.
  3. DO promote yourself socially and professionally online.  Update your pages to show your creativity and work ethic.  Write about accomplishments that you have made inside and outside of work.  Include your interests and passions and your goals.
  4. DON’T post anything that could be incompatible with your work persona.  For example, if you claim a disability or injury that alters your job responsibilities, refrain from posting pictures of you partaking in physical exercise.  If you are claiming worker’s compensation, investigators will often look at your social media sites to ensure that they are consistent with your claims.  An employer cannot discriminate against you because of disabilities, but you can be terminated if they unveil inconsistencies within your social media pages.

Job Applications: What are your rights and how to handle a discriminatory question.

Preparing for a new job and the application process is often nerve-wracking and stressful.  Do you ever wonder what the employer will ask you, or what qualifications you should emphasize,  to show that you are capable of performing the tasks of the job?  Preparing to answer questions such as “What can you do for our team?” or “What’s your greatest weakness?” is crucial.  But imagine your potential employer asking you “How old are you?” or, “Are you planning on having kids soon?” The interview process has changed quickly from innocent to illegal.  Before going to your next job interview, brush up on your rights as an applicant.
There are many things an employer cannot ask you on your application.  These are certain questions that violate your civil rights, such as:

  • Age/Date of birth. The Age Discrimination in Employment Act protects applicants from disclosing their age during the hiring process to prevent age discrimination.  If the applicant is less than 18 years of age, asking for the date of birth is permissible because of children’s labor laws.  After being hired, the company may ask for birth certificates or licenses to verify date of birth for pension purposes, but they may not ask for these before hiring you.
  • Race, Religion, National Origin. Title VII of the Civil Rights Act requires that covered employers consider people of all nationalities and color.  Each application should state that the company is an Equal Opportunity Employer, and at no point should you answer a question like “Where were you born”, “What is your ancestry”, or “What religious beliefs do you follow?”  There are I-9 forms that can be used to determine the status of citizenship of an applicant.  These questions do not belong on an application.
  • Physical traits, disabilities. Unless height and weight are directly related to job performance, these questions should not be on the application. The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions. The employer may ask if you are capable of fulfilling the requirements of the job, but they may not ask you if you have disabilities or health problems.

There are many other restrictions on the application and interview process, which should be explored by everyone looking for employment.  While most employers do not have discriminatory intentions and are attempting to find the right “fit for the job,” you may find yourself in a situation where you are asked a question that is unlawful.

What should you do when this problem arises?  First, consider the intent of the question and how it was phrased.  It is important that you understand the employer’s reason for asking the question and their method of assessment, rather than assuming they have discriminatory intentions.
There are many ways to creatively answer questions without disclosing unlawful information.  For example, if you are asked “How old are you?” the best answer is to refer the question back to the job you are applying for.  “I am of legal working age” is a fit answer.  If you are asked “What religion are you?” it is okay to answer with “My religious practices will not hinder my potential to successfully perform the tasks of this position.”  Keep in mind that your application becomes a permanent part of your file.  If you choose to be untruthful on your application, that only provides the employer a potentially valid reason to terminate you down the road.
There are times, however, that witty answers may not be enough for the prying interviewer.  If this is the case, you may follow these steps:

  1. Inform the employer that the question is illegal.  While most people wouldn’t dare correct an interviewer, it can be tactfully stated in a non-accusing way.
  2. Answer the question.  Now that you have informed them of the question being illegal, the employer would be in violation of your civil rights if the information is used against you.
  3. If you are offended, you can file a claim with the Equal Employment Opportunity Office.

Be aware that taking this stance for your civil rights is courageous and may cost you the opportunity for employment.  However, if an employer is left in the dark ages and has no qualms about violating your rights, it might be best to seek employment elsewhere.

Sweeney v. United States Postal Service (Mail Carriers)

This action was instituted by a group of Smithtown Postal workers who oppose actions by the USPS and its agencies which illegally targeted older employees in an effort to force them into retirement. In doing this, the USPS utilized various techniques including creating a hostile work environment, overly disciplining older employees, and further harassing and insulting older workers. These policies violate the Age Discrimination in Employment Act (“ADEA”).
Downloads:

  1. USPS Smithtown Age Discrimination Complaint

Johnson v. Nassau County Social Services

This action was instituted to address the County of Nassau’s policy of not paying employees with less than ten years of tenure for their overtime hours which were banked over the course of their employment. These hours were banked for overtime worked, vacation days or sick days which were not used. Essentially, these workers were required to work overtime without compensation at all.
Downloads:

  1. Nassau County Social Services Overtime Complaint
  2. Court Order Conditionally Certifying Overtime Class

Gambino v. Harvard Protection (Security Guards)

This action was instituted to address Harvard Protection’s failure to pay security guards proper overtime when they worked in excess of 40 hours per work week. Rather, guards received a single paycheck denoting the first forty hours as straight time and were compensated at two thirds their regular rate for the second forty hours, essentially compensating them with straight time for all hours worked.
Downloads:

  1. Court Approved Notice of Lawsuit and Consent to Sue to all Harvard Security Guards and Fire Safety Directors employed from February 8, 2007 to the present.
  2. Gambino Amended Complaint
  3. Court Order Granting Conditional Certification of Harvard Protection Security Guard and-or Fire Safety Director Collective Class

Turner Industries to face lawsuit for discrimination

Sara Kain of Valli Kane and Vagnini
Sara Kain of Valli Kane and Vagnini

BATON ROUGE, La (NBC33) – Civil rights leaders announced today that Baton Rouge-based Turner Industries is being sued for discrimination by several of its employees.
Turner Industries released a statement denying any discriminatory actions, but one employee tells a much different story.
“All the years of frustration and pain that I went through,” Yvonne Turner, former employee at Turner Industries, said a press conference held in Baton Rouge. “I’m tired and it’s time for me to speak up.”
For more on this story, watch NBC33 News at 10 p.m.
Original Article: https://www.nbc33tv.com/news/crimetracker/turner-industries-to-face-lawsuit-for-discrimination
By Brix Fowler – Reporter NBC

Tuesday, February 1, 2011