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Pregnancy Discrimination

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Natasha Bankay

on 6 October 2014

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Transcript of Pregnancy Discrimination

Pregnancy
Discrimination

Natasha Bankay
Kristyn Lang
Sunie Lewis
Danielle Sucich
Erika Torres

Topics Covered
Pregnancy Discrimination
Temporary Disability
Maternity & Parental Leave
Workplace Laws & Situations
Human Resources
The Pregnancy Discrimination Act
The Pregnancy Discrimination Act (PDA) is part of Title VII of the Civil Rights Act of 1964.

Title VII of the Civil Rights Act of 1964 prohibits employments decisions based on race, religion, color, national origin, and sex.

These employment decisions include areas such as selection, promotion, demotion, discharge, performance appraisal, training, pay, and employee benefits.

When Title VII was passes, Congress did not address weather or not pregnancy and pregnancy-related disabilities and benefits were included under the sex discrimination category.

This conclusion was greatly up to the interpretation of the Courts and led to much confusion.

Although there were many influential cases regarding pregnancy discrimination before the PDA, the most influential was General Electric vs. Gilbert.

General Electric vs. Gilbert
General Electric had a disability plan for non occupational sicknesses that did not cover pregnancy and pregnancy-related illnesses.

In addition, women were place on mandatory maternity leave where they had to give up pay and benefits.

The courts did not rule this illegal because it did not fall into the traditional category of sex discrimination.

The outcome of this case directly resulted in the passing of the PDA because it challenged Congress to more specifically define sex discrimination.

The PDA was signed into law by President Jimmy Carter on October 31, 1978.

The act was intended to Clarify Title VII of the Civil Rights Act and to fight workplace discrimination again women and their ability to reproduce before, after, and during pregnancy.

Requires companies to treat pregnancy and pregnancy-related illness equal to all other medical conditions.

Requires that equal benefits be provided to men and women. This also means no special treatment to women.
Flaws in the PDA
Since it required men and women to receive equal benefit plans, a company could essentially get rid of its benefits plans all together and still be within the law.

Also, only companies with 15 full time employees or more are covered within its jurisdiction.

Ambiguous wording still leads to much confusion in court cases and decisions today.

Temporary Disability
If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee.

Employers may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees as it does so for other temporarily disabled employees.

When employers do not make these accommodations, they are in clear violation of the Pregnancy Discrimination Act and the Americans With Disabilities Act (ADA).
Americans with Disabilities Act (ADA)
Protection under the ADA for pregnancy arises for impairments related to the pregnancy, not the pregnancy itself.

Pregnancy is not on its own an impairment under the ADA; it can never be a disability.

However, many conditions such as gestational diabetes and preeclampsia , can be considered disabilities under the ADA if they substantially limit major life activities such as sitting, standing, or walking.

An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).

Short-Term Disability
Short-term disability is a type of coverage that pays your salary, or at least a portion of it, for a certain number of weeks because of medically related needs.

Maternity leave is one of the most common causes of a short-term disability.

Larger companies usually provide this benefit, and many states are now mandating that this coverage be part of their benefits.

The Pregnancy Discrimination Act
What is Pregnancy Discrimination?
How to Prove Pregnancy Discrimination
In Which Industries is Pregnancy Discrimination Most Prevalent?
A form of illegal sex discrimination

Occurs when an employer treats a current or prospective employee differently based on her pregnancy, childbirth, or related conditions

Can occur at any point of employment

Includes refusal to hire, to make assignments, promotions, or demotions based on pregnancy, or to fire

Show that you were treated differently than other employees & that the difference in treatment was based on your pregnancy

Direct Evidence:
employer admitted to acting discriminatory; an employer admitting your pregnancy played a role in the decision made

Circumstantial Evidence:
proof that the employer deviated from its usual practices or policies, acted in a way that doesn’t make business sense, or changed its behavior

2013 Pregnancy Discrimination Claims by Industry. Source: EEOC

Not So "Fun Facts"
In Which Areas is Pregnancy Discrimination Most Prevalent?
2013 Pregnancy Discrimination Claims by Industry. Source: EEOC

Pregnancy discrimination hits virtually every industry & every geographic area of the country.

In 1997, approximately 3,900 pregnancy discrimination charges were filed with the EEOC. By 2013, that number jumped to 5,342.

The number of pregnancy-related discrimination charges increased by 35% in the past decade.

1 in 5 discrimination charges by women is associated with pregnancy.

Since 2001, the EEOC has handled 52,000 pregnancy discrimination cases which amounted to about $150.5 million in damage.

For women who are forced out of the workforce because of their pregnancies, the stress associated with the job loss increases the risk of having a premature baby and/or a baby with low birth weight.

SOURCES
Department of Labor. Wage and Hour Division Family Medical Leave Act (2013, August). Retrieved on September 29th, 2014 from http://
www.dol.gov/whd/fmla/

Department of Labor. Wage and Hour Division Fact Sheet 73 (2013, August). Retrieved on September 26th, 2014 from http://
www.dol.gov/whd/regs/compliance/whdfs73.htm.

Greenlaw, P.S, & Kohl, J.P. (1999). The pregnancy discrimination act: A twenty year retrospect. Labor Law Journal, 50, 71-76.

Habig, J.E. (2008). Defining the protected class: Who qualifies for protection under the pregnancy discrimination act. Yale
Law Journal, 117, 1215-1224.

Hall, K., Spurlock, C. (2013, February 21). Paid parental leave: U.S. vs. the world. (Inforgraphic). The Huffington Post. Huff Post Parents.
Retrieved from http://www.huffingtonpost.com/2013/02/04/maternity-leave-paid-parental-leave-n_2617284.html utm_hp_ref=email_share.

Kramer, M. (2014). EEOC Releases Guidelines Regarding Pregnancy Discrimination. Retrieved September 24, 2014 from
http://www.law.com/sites/michaelkraemer/2014/07/18/eeoc-releases-guidelines-regarding-pregnancy-discrimination.

March of Dimes. (2012, January). Stress and Pregnancy. Retrieved on 22 September 2014, from http://www.marchofdimes.com/
pregnancy/lifechanges_indepth.html/.

Pregnancy Discrimination Lawsuits: What You Have to Prove | Nolo.com. (n.d.). Retrieved September 22, 2014, from http://
www.nolo.com/legal-encyclopedia/pregnancy-discrimination-lawsuits-what-you-have-prove.html/.

Pregnancy Discrimination. (n.d). Retrieved September 24, 2014 from http://www.eeoc.gov/laws/types/pregnancy.cfm.

Schulte, B. (2014, August 5). New statistics: Pregnancy discrimination claims hit low-wage workers hardest. The Washington
Post. Retrieved September 22, 2014, from http://www.washingtonpost.com/blogs/she-the-people/wp/2014/08/05/new-statistics-pregnancy-discrimination-claims-hit-low-wage-workers-hardest/.

Short-term disability insurance and your maternity leave. (n.d). Retrieved September 24, 2014 from http://
sunlifeknowsbenefits.com/learn/main/employee/why-buy-insurance/protecting-your-paycheck/short-term-disability-insurance-and-your-maternity-leave.cfm.

Taylor, M. (2014, July 15). Federal government releases new guidelines on pregnancy discrimination. Aljazeera America. Retrieved
October 3, 2014, from http://america.aljazeera.com/articles/2014/7/15/eeoc-pregnancy-discrimination.html/.

U.S Equal Employment Opportunity Commission. Laws, Regulations & Guidance, Pregnancy Discrimination (n.d). Retrieved
on September 26th, 2014 from http://www.eeoc.gov/laws/types/pregnancy.cfm.

U.S Department of Labor, Wage and Hour Division, Nursing Mothers (n.d). Retrieved on September 26th, 2014 from http://
www.dol.gov/whd/nursingmothers/

Zillman, C. (2014, July 15). Yes, pregnancy discrimination at work is still a huge problem. Retrieved September 22, 2014,
from http://fortune.com/2014/07/15/pregnancy-discrimination/.
Employer's Responsibilities
As of July 14, 2014:

"employers must offer their pregnant employees reasonable accommodation if they’re temporarily unable to do their jobs"

Breaks & Location
Employers must provide a reasonable break time to express milk as frequently as needed.

The location must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed.

A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

Compensation
Employers are not required under the Fair Labor Standard Act (FLSA) to compensate nursing mothers for breaks taken for the purpose of expressing milk.

However, employees may use compensated breaks (if available) to express milk.

Employees must be completely relieved from duty or else the time must be compensated as work time applies.

Eligible Employees
Employees who are not exempt from section 7, which includes the FLSA’s overtime pay requirements, are entitled to breaks to express milk.

Employers are not required under the FLSA to provide breaks to nursing mothers who are FLSA exempt, but they may be obligated to provide such breaks under State laws.

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if would impose an undue hardship.
Paid Parental Leave: U.S. vs. The World
After the Baby...
The Family Medical Leave Act
The FMLA entitles eligible employees of covered employers to take
unpaid, job-protected leave
for specified family and medical reasons
with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave
. Eligible employees are entitled to:

Twelve workweeks of leave in a 12-month period for:

the birth of a child and to care for the newborn child within one year of birth

Break Time for Nursing Mothers
The Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.

Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.
Source: International Laobour Organization
THE HUFFINGTON POST
Pregnancy & the Workplace
"The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment."

The Pregnancy Discrimination Act
An employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.

An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work.

If an employer requires its employees to submit a doctor's statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

H.R. Policies to Consider
1. Management should provide handouts to employees about pregnancy discrimination including guidelines on the steps to take if they believe they’re being discriminated against.

2. Management should provide employees with online training on pregnancy discrimination prevention and its policies.

3. It is important for management to understand that while they can not discriminate against pregnant employees, they can also not give them special treatment. Pregnant employees should be treated equally to all other employees.

4. Companies should program yearly refresher trainings on pregnancy discrimination. Management should receive a specialized and more tailored training.

5. Management must be aware that it is also unlawful to discriminate based on past pregnancy and/or a woman’s potential to become pregnant.
Examples of Pregnancy Discrimination in the Workplace
Example #1
A conversation was overheard between IBM executives discussing their preference not to hire young women because they’ll get pregnant over and over again.
Example #2
A woman bus driver was forced to take
unpaid leave because her supervisor was
worried she would get morning sickness
and pose a danger to the passengers.
Example #3
A woman bus driver was fired for
insubordination due to the fact that she
carried around a water bottle (which
her doctor recommended) to prevent
pregnancy-related bladder infections.
Example #4
An activity director at a nursing
home was fired when she requested a
reasonable accommodation for some
physical aspects of her job to prevent
having another miscarriage.
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