Are You Unintentionally Discriminating against Pregnant Employees?

by Sarah O’Keefe

Despite clear laws designed to protect the rights of pregnant working women, discrimination against pregnant employees remains pervasive. Federal mandates like the Pregnancy Discrimination Act, Family and Medical Leave Act, and Americans with Disabilities Act, along with the state-level Arizona Civil Rights Act, serve to insulate pregnant women from unfair treatment. However, not all employers practice what they preach, as is evident from examples below. 

Pregnancy Discrimination Is on the Rise

Recent data and court records establish pregnancy discrimination claims are on the rise. From prominent Fortune 500 companies to brick-and-mortar outfits, employers are systematically marginalizing pregnant workers, and some are unaware of their infractions. Whether or not pregnancy-related discrimination is intentional, the legal fallout can be severe. 

Simply having anti-discrimination policies in place will not prevent the loss of potentially substantial monies in a court case. Conversely, some of the most prestigious corporations in the country that boast inclusive and high-integrity cultures can be the biggest offenders of subtle and overt pregnancy discrimination. For example, a pharmaceutical giant is facing a class-action lawsuit for denying opportunities to women, targeting pregnant employees and women returning from maternity leave. In one claimant’s account, she details her experience from being promoted and praised for her achievements and leadership to being demoted and laid off once she announced her pregnancy. Another was told her career “was not going anywhere” once she disclosed her pregnancy. She was passed up for advancement following the birth of her child.

Corporate America is not the only culprit. A notable retail leader is facing charges after a claimant asserts her employer failed to make reasonable accommodations, and put her pregnancy and safety at risk. 

Arizona Is Not Exempt

Arizona is not exempt from the pregnancy discrimination epidemic. In fact, Arizona currently leads the nation in pregnancy-discrimination claims per capita, according to data collected from the Equal Employment Opportunity Commission. What accounts for this? Some believe employers misunderstand their level of power in a right-to-work state. In other words, employers seem less aware that federal laws are just as applicable in Arizona as they are everywhere else, and are more inclined to play by their own rules.

However, pleading ignorance won’t work. In 2012, a deli franchise was found to have discriminated and was required to pay punitive damages and back wages, and was subjected to injunctive relief. 

Additionally, a local daycare company was sued by two women alleging their hours were drastically reduced because of pregnancies. The employer placed one employee on call and failed to provide her with work hours, attributing the lack of work to the economic slowdown. Then, the company hired six new employees. 

Regardless of the outcome of any court case, lawsuits consume time and money and mean that businesses will be less productive due to the burdens and stressors of litigation. That’s why it’s important businesses be proactive and try to protect their organization. 

Management Needs to Protect the Business

With pregnancy discrimination claims increasing exponentially nationwide, it is of paramount importance that business owners protect their organizations with proper safeguards in the form of education, training and action. They should consider the following steps, as well as seeking legal counsel, to ensure their company and staff are well-equipped to recognize this form of potential discrimination and comply with all applicable federal, state and local anti-discrimination laws:

  • Implement programs and re-evaluate leave and time-off policies in recognition of maternity and paternity leave.
  • Educate Human Resources personnel on the FMLA and how to identify situations when it might be appropriate to engage with employees regarding time off. 
  • Provide policies and procedures in employee handbooks that recognize family needs and train employees to be sensitive in communications.
  • Develop and institute ongoing educational and training classes to make sure all members of the organization understand anti-discrimination policies, and subtle behaviors that can be viewed as discriminatory.
  • Ensure management-level employees and owners are trained in best practices for investigating, reporting and resolving discrimination claims in a timely manner.
  • Foster an open and inclusive culture that allows all workforce members to feel equally valued.
  • Create and abide by corrective processes designed to address noncompliance.

Preventing pregnancy-related discrimination in the workplace should not be a trial-by-fire exercise. A single misstep could prove costly both legally and financially, and undoubtedly damage a company’s reputation and culture in the process. It’s always advisable to seek legal counsel for clarity and direction when navigating this sensitive yet widespread issue.   

Sarah O’Keefe joined Burch & Cracchiolo in 2013 after completing an appellate clerkship for The Honorable Patricia K. Norris of Division One of the Arizona Court of Appeals. O’Keefe practices in labor and employment law and commercial litigation.

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