Articles Posted in Pregnancy discrimination

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Yesterday, New York City’s City Council passed a law that would prohibit employers from discriminating against pregnant employees just because they need a reasonable accommodation to continue working during their pregnancy. This is an important advance for pregnant employees because, apart from the accommodations that they routinely provide to non-pregnant employees, employers do not have to provide reasonable accommodations to pregnant employees under New York state law or federal law. Under New York City’s new law, an employer would, for example, have to relieve a pregnant employee of certain tasks that required heavy lifting unless doing so would pose an undue hardship for the employer.

While it may seem contrary to common sense, both federal and Maine law do not require employers to provide pregnant employees with reasonable accommodations. As a result, many pregnant women jeopardize their health because their employers won’t provide them with reasonable accommodations. For instance, in New York City, a pregnant retail worker reportedly passed out and needed emergency medical care because her employer refused to permit her to carry a water bottle with her during the work day.

Earlier this year, a bill was introduced in the Maine legislature that was similar to the law passed in New York City but the bill was not passed. There is also a similar bill in Congress called the Pregnant Workers Fairness Act that has not yet gained traction either.

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Last week, Governor LePage vetoed a bill that we previously reported on which would have protected employees who need to breastfeed or express breast milk at work from discrimination. This week, the Maine House failed to override Governor LePage’s veto. The editorial board of the Bangor Daily News expressed its disagreement with Governor LePage on this issue. The Bangor Daily News editorial made the point that the bill which Governor LePage vetoed would have improved the legal process for protecting employees who breastfeed because it would’ve permitted the Maine Human Rights Commission to resolve complaints without the need for a lawsuit.

“If we truly value full equality for working mothers in the workplace, we need effective measures to protect their rights,” said Rep. Anne Graham, D-North Yarmouth, the bill’s sponsor and a pediatric nurse practitioner. “This bill is also needed for the children of working mothers, who also deserve the long-term health benefits that the nutritional and infection-fighting properties of breast milk provide.”

In response to Governor LePage’s rationale for his veto, that Maine law already protects breastfeeding mothers from discrimination, Graham said that the only recourse for a mother whose employer refuses to let her express breast milk at work “is to bring a complaint to the state Department of Labor, if she is still employed, or, if she has lost her job, to ask the local district attorney to bring a suit. In either case, the most severe sanction against the employer is a $500 fine that goes to the state, not the mother. Nothing in current law requires an employer to rehire a worker who was fired for nursing.”

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Thumbnail image for Breastfeeding.jpgYesterday, a bill that would provide further protections for mothers who need to nurse or express breast milk in the workplace passed the Maine House. Maine law currently requires employers to provide accommodations to employees who need to nurse or express breast milk but the penalties for failing to obey this law are very slight. Under the current law, employers face at most a $500 fine and there is nothing in the law that requires an employer to rehire an employee who was fired for expressing breast milk at work.

The bill currently under debate would amend the Maine Human Rights Act so that it would require employers to accommodate nursing mothers in the workplace. If an employer failed to accommodate a nursing mother, it could be held liable for damages it caused to the nursing mother and potentially punitive damages.

“Maine has a rich history of leading the nation on important civil rights protections, but nursing mothers have fallen through the cracks,” said Rep. Anne Graham, D-North Yarmouth, the bill’s sponsor. “Working mothers deserve full equality in the workplace.”

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The Maine legislature is currently considering a bill that would require employers to provide reasonable accommodations to pregnant women so that they can continue to perform their jobs despite medical restrictions due to pregnancy. Under current law, employers cannot discriminate against pregnant women because they are pregnant. But if, for instance, a pregnant woman’s doctor gives her a lifting restriction while she is pregnant, an employer does not have to accommodate that restriction unless it provides accommodations to non-pregnant employees under similar circumstances. This new law would require Maine employers to accommodate pregnant workers in the same way they have to accommodate workers with disabilities.

California already requires employers to provide reasonable accommodations to pregnant women. State legislatures in Maryland and Iowa are also currently considering bills similar to the one in Maine that would require employers to reasonably accommodate pregnant women. Maine’s bill, LD 830, is currently assigned to the Judiciary Committees in the House and Senate.

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One of the most common and difficult issues employees face is when they have family care giving responsibilities that require them to miss some work and their employers refuse to allow them to take sufficient time off to attend to those responsibilities. Most of us are familiar with these types of situations, like: a child or spouse in the hospital; the birth of a new son or daughter; the death of a parent or spouse. Unfortunately, there is not one law which governs every situation but, rather, a patchwork of different federal and state laws that provide employees with certain rights.

hospital.jpgThe federal Family and Medical Leave Act (FMLA) and Maine’s Family Medical Leave Requirements (MFMLR) both require covered employers to provide eligible employees with time off from work if, for instance, they have to care for a spouse or child with a “serious health condition.” The key is knowing whether your employer is “covered” and whether you are an “eligible” employee. If more than 50 employees work in the same workplace as you, the FMLA likely covers your employer. If more than 15 employees work in the same workplace as you (or you work for the State or a town that has more than a total of 25 employees), the MFMLR likely covers your employer. If you have worked for a MFMLR covered employer for at least 12 consecutive months, you are likely eligible for leave under the MFMLR. If you have worked for an FMLA covered employer for 12 months, even if they were not consecutive months, and 1250 hours in the 12 months immediately prior to your request for leave, you are likely eligible for FMLA leave. For more information about these laws, you can consult the Maine and U.S. Department of Labor websites.

Maine also has a law which requires employers who offer paid sick leave to allow their employees to use that paid sick leave when they have to care for an immediate family member who is ill. Under this law, even if the immediate family member’s illness is not a “serious health condition” (which is a legal term with a complicated definition) the employer has to let the employee use her paid sick leave.

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The Pregnant Workers Fairness Act (PWFA), which has been introduced in both the U.S. House and Senate, would give pregnant women the right to reasonable accommodations similar to employees with disabilities. Currently, under Maine and federal law, employers may not discriminate against pregnant employees. However, if an employer would ordinarily refuse to provide a certain type of reasonable accommodation to an employee, like regular restroom breaks, it would not have to provide a pregnant employee with that accommodation. The PWFA would change that and require employers to provide pregnant employees with reasonable accommodations.

“Pregnant workers face discrimination in the workplace every day, which is an inexcusable detriment to women and working families in Pennsylvania and across the country,” said Senator Bob Casey, Jr. (D-PA). “My bill will finally extend fairness to pregnant women so that they can continue to contribute to a productive economy while progressing through pregnancy in good health.”

The National Women’s Law Center (NWLC) supports the PWFA. To illustrate the need for the PWFA, the NWLC points to a case where Wal-Mart refused to allow a pregnant employee to carry a water bottle at work even though her doctor ordered her to do so. It also points to a case where Old Navy fired an employee who asked management to not require her to lift heavy objects and climb ladders during the final month-and-a-half of her pregnancy. The PWFA is necessary to prevent this type of mistreatment of pregnant workers.

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A New Jersey woman, Dr. Mary Beamer, is pursuing a lawsuit against her former employer, Herman Chiropractic Center. In her lawsuit, she claims Herman Chiropractic fired her because she was pregnant. According to a news report about the case, Dr. Beamer claims that she suffered from hyperemesis gravidarum, which is a severe form of morning sickness that can cause dehydration, and she needed to take 11 days medical leave from work because of it. Dr. Beamer claims that when she was ready to return to work after her 11-day leave, the owner of the company told her not to bother because he didn’t want her to return.

In this case, Herman Chiropractic knew that the federal Family and Medical Leave Act (FMLA), which entitles eligible employees to medical leave for pregnancy related health issues, did not cover it. The FMLA didn’t cover Herman Chiropractic because it did not have 50 or more employees. Thus, that law did not require it to provide Dr. Beamer with leave for her pregnancy related condition. However, the federal Pregnancy Discrimination Act (PDA) also protects pregnant employees. Under the PDA, an employer cannot fire an employee because she is pregnant. Dr. Beamer claims in her lawsuit that Herman Chiropractic did exactly that.

If you are pregnant and your employer has refused to let you take leave from work due to pregnancy related health issues because it claims you aren’t covered by the FMLA, you should contact an experienced employment lawyer to learn more about your rights. It is not uncommon for an employer to mistakenly tell an employee she is ineligible for FMLA leave even when she is eligible. Additionally, Maine has its own version of the FMLA, which applies to employers with fewer than 50 employees, and some employers misapply that law as well. Even if the federal FMLA or Maine’s version of the FMLA don’t cover you, you might have a claim under the PDA like Dr. Beamer.

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On May 16, 2011, the Maine Human Rights Commission (MHRC) unanimously found that Total Property Services, Inc. unlawfully discriminated against Heather Hider because she was pregnant. Ms. Hider worked for Total Property Services as a cleaner from January 2009 to September 2009. According to the MHRC investigative report, Ms. Hider provided the MHRC with a recording of the phone message that her boss, Steve Booth, left her to tell her that she was fired. In the message, Mr. Booth told Ms. Hider he decided that he needed to replace her because she was pregnant and due to give birth soon.

In response to Ms. Hider’s complaint to the MHRC, Total Property Services claimed that Mr. Booth no longer worked for it at the time he fired Ms. Hider. However, Mr. Booth continued to oversee Ms. Hider after his alleged separation from the company. Total Property Services also admitted that it told no one about Mr. Booth’s alleged separation from the company. It didn’t tell its employees or its customers. As such, the MHRC found that Mr. Booth continued to have the authority to fire Ms. Hider.

The Maine Employee Rights Group represents Ms. Hider.