Builders and Contractors Exchange
Weekly Bulletin: 02 Aug 2004
Avoiding Pregnancy Bias Lawsuits Under The Pregnancy Discrimination Act
By: Lisa Thatch
As record numbers of women have entered the U.S. workforce, the number of lawsuits alleging pregnancy discrimination has grown as well. Pregnancy bias lawsuits have increased 39% over the last decade. The Pregnancy Discrimination Act of 1978 ("PDA") protects women from discrimination based on pregnancy with respect to issues such as hiring, promotion, leave, firing, benefits and more. There are, however, several steps employers can take to protect themselves against PDA liability.
Under the PDA, an employer must treat women who are temporarily disabled because of pregnancy the same as it treats others with a temporary disability. It is a law of equal, not preferential, treatment. Employers should therefore NOT have separate personnel and benefits policies for pregnant employees or applicants for employment. Any such policies would suggest that there is something different about maternity as a disability. By avoiding separate policies, an employer can avoid the implication that it had any intention of treating women differently on the basis of pregnancy.
As far as implementation of company policies to pregnant women, there are a few affirmative steps employers can take to avoid pregnancy bias lawsuits. First, employers should train supervisors and managers to be aware of pregnancy discrimination. Knowledge of what the laws protect can help avoid mistakes that can lead to liability.
Second, proper documentation of all personnel actions is key to avoiding liability for pregnancy discrimination. An employer must be able to establish non-discriminatory reasons for any personnel actions taken.
Third, consistency in the treatment of all personnel is crucial. Many women who feel they have been subjected to pregnancy discrimination describe the personnel actions in terms of "fairness." However, fairness is an abstract, and individual concept. By ensuring that all employees are treated consistently, a single employee will have a difficult time establishing that her treatment was due to her pregnancy.
Finally, it is wise for employers to consult an employment attorney to discuss their human resources policies and procedures, or lack thereof, to determine if they are sufficient to protect against pregnancy bias lawsuits. Liability for pregnancy discrimination, just like any type of discrimination claim, can be avoided with clear, uniform policies that are well communicated, and enforced, to employees and managers.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.