Tuesday, May 22, 2007

Pregnancy discrimination claims on the rise

It certainly seems like we are in the midst of another baby boom. Everywhere you look there are either pregnant women or women pushing strollers or lugging infant car seats. So perhaps it is not surprising that given the fact that women are much more career oriented now than 20 years ago, pregnancy discrimination claims are on the rise. With $4 gasoline on the horizon and the cost of living getting more expensive every day, few families are afforded the luxury of living on one income.

Eve Tahmincioglu from msnbc.com succinctly summarizes the law against pregnancy discrimination in the workplace: "Pregnancy discrimination is indeed illegal.... You cannot refuse to hire a woman because she is pregnant. You cannot fire her because she is pregnant. You cannot demote her or dock her pay because she is pregnant. Even if you ask a woman about her child-rearing plans, and don’t do the same of your male job applicants or employees, that’s a no-no." And yet, despite the fact that every company knows it cannot discriminate because of pregnancy, according to David Grinberg, an EEOC spokesperson: “The increase in pregnancy discrimination charge filings and lawsuits is cause for concern.... [P]regnancy discrimination lawsuits by EEOC have increased about threefold from six or fewer per year in the early to late 1990s, to 16 or more per year since 2001." Pregnancy discrimination charges charges filed with the EEOC, state and local agencies jumped nearly 19 percent to a record 4,901 last year.

The Pregnancy Discrimination Act is not the only law employers must worry about when dealing with pregnant employees. The Family and Medical Leave Act mandates 12 weeks of unpaid leave for employees for childbirth and related care, and makes it illegal to terminate an employee during that leave or in retaliation for taking the leave. The FMLA, though, only applies to employers with 50 or more employees and to employees to worked at least 1,250 hours in the preceding 12 months.

Many Ohio small businesses are therefore under the mistaken impression that maternity leave is not required of them. Ohio law, however, begs to differ. Separate and distinct from the FMLA's 50 employee/1,250 hour prerequisites, section 4112-5-05(G) of the Ohio Administrative Code provides that a female employee must be granted a leave of absence for a reasonable period of time on account of childbearing. This requirement applies regardless of whether an employer has a maternity or leave of absence policy. According to the Ohio courts that have examined this provision, a "reasonable period of time" may exceed 12 weeks depending on the circumstances.

This area of the law is a minefield for the unwary employer. The federal PDA intersects with the FMLA, which then intersects with Ohio law, all creating a trap that can prove very costly for an employer that terminates a woman while pregnant or shortly after childbirth. These issues will continue to plague employers as more women return to work after childbirth. The safest course of action is to grant all women 12 weeks of maternity leave, regardless of their tenure and the size of your business, and not to terminate an employee following childbirth without consulting your attorney first.