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Women in the workplace have made greater strides in the past hundred years than in centuries of working alongside men. But in the year 2020, as we near the centennial anniversary of the historic achievement allowing women to vote, the workplace remains plagued with discrimination.
Workplace discrimination takes many forms, from biases based upon gender, race, skin color, national origin, and physical disability, amongst others. This article focuses on pregnancy discrimination, which remains a common barrier to the progression of female professional development, even today.
UNDERSTANDING THE GOVERNING LAWS
Under New York State law, women cannot be unfairly treated because of their pregnancy status. New York State Human Rights Law § 296.1 was enacted to ensure that pregnant women enjoy the same protections under state law as they do under federal law. What many fail to understand is that pregnancy discrimination is a form of sex discrimination. Thus, treating women differently as a result of pregnancy-related conditions amounts to a violation of New York State Human Rights Laws.
Furthermore, women are protected from disability discrimination under the federal Americans with Disabilities Act, Title I. Discrimination on the basis of pregnancy, childbirth, or related medical conditions equates to unlawful sex discrimination. Not only does the law require that a pregnant woman enjoy the same rights and privileges as non-pregnant adults, but reasonable accommodations are to be made to ensure safe working conditions exist for all. While a pregnant woman is generally expected to perform the major functions of her job, the law allows for changes to be made in the same manner they would be changed for any other temporarily disabled employee. This includes accommodations in the form of alternative projects, light duty, disability absences, or leave without pay.
Additionally, women are protected by the Pregnancy Discrimination Act (PDA), which is an amendment to Title VII of the Civil Rights Act of 1964. This federal statute prohibits discrimination against women in the workplace and requires employers to treat women in the same manner as other employees who are similar in their ability or inability to work. The PDA provides another layer of federal protection that forbids discrimination when it comes to any aspect of employment, including pay, promotions, layoffs, training, and very importantly, firing.
Maternity leave is afforded by the Family and Medical Leave Act (FMLA), enforced by the U.S. Department of Labor (DOL). A new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid, or paid if the employee has earned or accrued it) that may be used for caring for a new child. This law requires that the employee have worked for the employer for a period of at least one year prior to taking the leave.
STEPS TO TAKE IF YOU ARE THE VICTIM OF HARASSMENT
If you feel that you are the target of harassment, you should contact an attorney as early as possible, prior to any type of termination or adverse employment action (if possible). An attorney with experience in the area of workplace discrimination and pregnancy rights can guide you through the legal process and assist you with preparing for litigation.
Before taking any of the following steps, consult an attorney to learn about how any of these actions could affect your personal and professional life:
First, you should review your company’s handbook and examine the sections prohibiting discrimination. This will help you and your attorney better understand the internal rules that govern workplace conduct. Insufficient rules, or insufficient notice of the rules could pose a problem for the employer.
Second, you should report the misconduct. This creates a written record of the abusive behavior. Placing your employer on notice is the first step to creating the potential for legal liability. The report can be as simple as an email, and can later be escalated into a formal complaint with the company’s human resources representative. The “paper-trail” will be paramount to mounting a successful offensive in court. A step above the paper-trail would be video or sound recording.
However, this should carefully be analyzed by your attorney to determine that no other laws are violated as a consequence.
Third, keep a journal. While you may think you will remember all of the day-to-day activities as they are happening, court proceedings often take a long time, ranging from several months to many years. The notes kept during this period can later be used to “refresh your recollection”. These are the magic words entrenched in evidence law hornbooks that refer to using prior notes to help witnesses remember key events or details.
Fourth, gather evidence. This can include copies of any records of work performance, evaluations, memos, or letters documenting your work quality. This can also include records regarding bonuses, promotions, and awards for good work. There have been numerous women with outstanding track records at work, only to find that they are dismissed when their work suffers as a result of pregnancy. The only way to prove a change is to gather proof regarding pre-pregnancy and post-pregnancy performance and evaluations. Any instances of harassment or discrimination should similarly be documented (on a personal computing device, not workplace property that can be confiscated without notice).
Fifth, consider filing a complaint with the Equal Employment Opportunity Commission (EEOC). Be aware of the short statute of limitations for this bureau, which is typically 180 days from the act of discrimination. Failing to file within the required time period could result in a bar to the claim reaching its merits before the Commission.
Finally, do not go it alone. Discuss your potential case with a qualified attorney who can advise you before the process begins.
Contact SHALOM LAW, PLLC to Discuss Your Case
Discrimination of any kind can be dreadful. But pregnancy discrimination arguably causes even more stress on the pregnant victim because she is dealing with so many new changes – mentally, emotionally, and physically.
If you feel that you are being harassed because of your pregnancy status, contact Jonathan Shalom at (718) 971-9474 to learn how the law protects you. Strategizing about your court case takes careful preparation and attention to detail. Securing legal representation is the first step to understanding how the law operates and what steps need to be taken to secure justice.
If you want to learn more about this area of Labor and Employment Law, contact SHALOM LAW, PLLC for a free consultation.
This memorandum relates to general information only and does not constitute legal advice. Facts and circumstances vary. We make no undertaking to advise recipients of any legal changes or developments.
