Avoiding Workplace Pregnancy Discrimination
State and federal anti-discrimination laws afford broad rights and remedies to pregnant workers and applicants. It is important to know your obligations and restrictions.
First things first: it's about the worker.
This blog entry is designed to provide guidance to employers on avoiding unintentional discrimination of pregnant (or potentially pregnant) applicants and workers. But let's be clear about something first - the below laws exist for good reason: women have historically been unfairly treated in the hiring process and during employment for pregnancy-related issues. Never make a woman choose between having a job and having a child. It's unfair and illegal. As an employer, it's an honor to create jobs and protect your workforce. Always treat your workers with respect and dignity. While compliance may impose slight burdens on an employer, it is your privilege to honor their legal rights and your legal obligations.
Rule #1: Don't ask. It's their right.
The Pregnancy Discrimination Act and Washington WACs forbid employers from asking both workers and applicants about a pregnancy or intent to become pregnant in the future. Unless there is a bona fide business necessity for inquiring about a pregnancy, employers are strictly prohibited from asking about a pregnancy.
Rule #2: Fetal protection policies are not legal.
Employers care about their employees. For this reason, some enacted policies stating that female workers who may become or who are pregnant are not allowed to perform certain tasks, such as construction jobs, heavy lifting, or handling hazardous materials. Perhaps rightly so, the employer cared about the unborn fetus and about being sued in case of birth defect or lost pregnancy.
Notwithstanding good intent, the United States Supreme Court has deemed these illegal because they single out women and treat them differently than other workers. As long as an employer generally discloses the risks associated with a job and is not otherwise negligent, the employer is not typically liable for injuries to the fetus. Bottom line: It's up to the pregnant worker to make medical decisions related to the health of her fetus; you don't have a right to do it for them.
Rule #3: Don't make negative assumptions.
Under WAC 162-30-020(3) and the Pregnancy Discrimination Act, it is illegal to base employment decisions on negative assumptions about pregnant women, such as that they are incapable of performing typical job functions, need to be coddled, or should be given lighter duty or less hours without their requesting the same. This is an employment decision based on a negative assumption that is against the law. Unless the employee asks for an accommodation (see below), you should assume they are capable of performing all duties required by the job. You should treat them as such.
Similarly, it is illegal to harass a pregnant woman on the job. Just because she is going to have a child does not mean she should be subjected to negative commentary or remarks. Good rule of thumb in any walk of life: don't touch their stomach and please do not say that she looks like she's going to pop . It's illegal. It's also plain rude.
Rule #4: Pregnant workers are automatically entitled to certain accommodations and you can't question whether they're necessary.
If a pregnant employee works for an employer with 15 employees or more, she has the right to: more frequent, longer, or flexible bathroom breaks; modifying a no food or drink policy; providing seating or allowing more sitting or frequency; and limiting lifting to 17 pounds or less. All she has to do is ask and you must grant them and you cannot ask for a written certification from a healthcare professional.
Rule #5: For greater accommodations, employers can ask for medical recommendation for the requested accommodation.
Pregnant employees may have rights to other workplace accommodation(s), as long as there is no significant difficulty or expense to the employer, such as: Job restructuring, including modifying a work schedule, job reassignment, changing a workstation, or providing equipment; Providing a temporary transfer to a less strenuous or hazardous position; Scheduling flexibility for prenatal visits; and Providing any further accommodations the employee may need. If the employee asks for permission not to lift less than 17 pounds, employers may also ask for written certification.
Rule #6: She's entitled to leave.
Pregnant employees likely are able to qualify for benefits under the Washington Family Leave Act (FLA). FLA is more generous to women who must take time off during their pregnancies due to temporary conditions or disabilities than the federal Family Medical Leave Act. For example, under federal law, if a woman takes time off during pregnancy, both FMLA time and pregnancy disability time run concurrently, which limits the FMLA leave available following childbirth. On the other hand, state FLA leave does not begin to run until pregnancy disability time is exhausted. Therefore, if a woman must take off 12 weeks during pregnancy due to complications, she is still entitled to the full 12 weeks of FLA time following childbirth. Moreover, if a woman does not need to take any time off preceding the birth, FMLA allows only 12 weeks total following the birth. Under Washington law, however, after childbirth she is entitled to 6 weeks of disability time plus an additional 12 weeks of FLA leave. Therefore, simply because an employer provides time off under FMLA, a Washington employee will likely be entitled to additional time under state law and it is illegal to deny an employee these additional leave benefits.