Pregnancy Discrimination At Work

Title VII of the Civil Rights Act of 1964 (Title VII) as amended by The Pregnancy Discrimination Act  of 1978 (PDA), prohibits discrimination based on the following: 

• Current Pregnancy, 
• Past Pregnancy, 
• Potential or Intended Pregnancy, 
• Medical Conditions Related to Pregnancy or Childbirth
• Employment discrimination based on pregnancy involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

• If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

• Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under The Americans with Disabilities Act (ADA).  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).  The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability. 

• Under the PDA 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. However, 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.

• Further, under the Family and Medical Leave Act (FMLA) of 1993, 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 care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.  

• Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. 

• Nursing mothers may also have the right to express milk in the workplace under a provision of the Fair Labor Standards Act (FLSA) enforced by the U.S. Department of Labor's Wage and Hour Division.

• Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as expenses for other medical conditions.  The PDA specifies, however, that insurance coverage for expenses arising from abortion is not required, except where the life of the mother is endangered or medical complications arise from an abortion. 

  • Pregnancy related expenses should be reimbursed in the same manner as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charge basis. The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions.  No additional or larger deductible can be imposed.

  • Under Title VII, benefits can be denied for medical costs arising from an existing pregnancy if a health insurance plan excludes benefit payments for pre-existing conditions. Other laws, however, may apply to the coverage of pre-existing conditions.

  • Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

  • If an employer provides any benefits to workers on medical leave, the employer must provide the same benefits for those on medical leave for pregnancy related conditions.

  • Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

Louisiana Law, LA Rev Stat 23:332 prohibits intentional employment discrimination. 

• Title 23 Labor and Workers Compensation - RS 23:332 Intentional Discrimination in Employment 
• LA Rev Stat § 23:342 prohibits unlawful practice by employers for pregnancy, childbirth, or related medical condition, and including benefits and leaves of absence; transfer of position.

Retaliation claims for other types of discrimination complaints are not covered under the Louisiana Employment Discrimination Law. Under La. Rev. Stat. § 23:967 General Whistleblower Protection Law an employee may not be discharged (or discriminated against) in retaliation for performing, in good faith, the following activities:

• Disclosing (or threatening to disclose) a workplace act or practice that violates state law;
• Providing information or testimony in a public investigation, hearing, or inquiry into any violation of the law;
• Refusing to participate in (or objecting to) an illegal employment act;
• To be protected under this statute, the employee must first inform the employer of the violation. An employee is not protected if he goes directly to a governmental agency without first advising the employer. Also, an employee must be certain that the illegal conduct actually happened; a reasonable, good faith belief will not protect an employee if no violation actually occurred. 

The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, there are exceptions to the general rule; the Louisiana whistleblower protection statute. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: health care employees, insurer employees, labor investigations & proceedings, and workers' compensation.

In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

Laws like Title VII of the Civil Rights Act of 1964 (Title VII), The Pregnancy Discrimination Act (PDA), and The Americans with Disabilities Act (ADA), require you to file a charge of discrimination with the Equal Opportunity Employment Commission (EEOC) before you can file a discrimination lawsuit against your employer. An individual alleging a violation of Title VII, PDA, and/or ADA must file a charge with the EEOC before you can file a discrimination claim in federal court. 

1. To File a Claim with the Equal Opportunity Employment Commission (EEOC):

   • Within 180 days of the alleged unlawful compensation practice (2 years under the EPA)

   • 15 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).

2. To File with the Louisiana Commission on Human Rights (LCHR):

   • Within 180 days of the alleged unlawful compensation practice
   • 25 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last) for pregnancy-related claims. (20 or more for other claims like ADA or Title VII).

3. To File in a State Court under Louisiana State Law:

   • You may file a claim under state law without having first gone to either the LCHR or EEOC.

   • Generally, to preserve your claim under state law based on your state discrimination claims, you must file within 1-year or 360 days of the date you believe you were discriminated against. 

   • If you file your discrimination claim with the LCHR or EEOC within 300 days of the discriminatory treatment, then you have an additional 6-month extension from the 1-year period to file your claim in Louisiana state court (meaning you have 18 total months).

   • A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute such as Title VII, GINA, ADEA, and ADA or because the employer is based in another state.

4. To File a Discrimination Claim in Federal Court:

   • To preserve your claim under federal law, you must cross-file with the EEOC or LCHR within 300 days of the date you believe you were discriminated against.

   • A federal employment discrimination case cannot be filed in court without first going to the EEOC or LCHR, as discussed above, and having the EEOC or LCHR dismiss your claim.

   • This process is called “exhaustion” of your administrative remedy. The EEOC or LCHR must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim.

   • A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice.