In three of my columns last year (July/August, October and November) I wrote about employment discrimination. But there is one form of employment discrimination which I had not fully explored in those articles which is of particular relevance to women: pregnancy discrimination. Since it’s Women’s History Month, I am devoting this article to issues involving this discreet form of employment discrimination.

THE ACT

The Pregnancy Discrimination Act (“PDA”) did amend Title VII, the federal law which prohibits employment discrimination on the basis of race, gender, national origin and religion so that the statute’s definition of discrimination “because of sex” included the phrase “on the basis of pregnancy, childbirth or related medical conditions.”

THE BALL STARTS IN THE EMPLOYEE’S COURT

Since the PDA is included as part of Title VII, the same legal analysis is applicable to it as is applicable to other forms of employment discrimination. In other words, an employee must first set forth a prima facie case which may be rebutted by their employer. If the employer can rebut the employee’s prima facie showing, the employee is then given the opportunity to demonstrate that the employer’s justification for the conduct claimed to be discriminatory is actually a pretext for discrimination. This “shifting burden” analysis was covered in my earlier articles.

HEALTH INSURANCE CAN’T SINGLE OUT PREGNANCY

Since pregnancy implicates women’s health issues, application of health insurance coverage is a concern as well.

For this reason, the PDA also includes the mandate that “women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

The Supreme Court has held that an “otherwise inclusive [health benefits] plan that single[s] out pregnancy related benefits on its face” is violative of the PDA. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983).

IN VITRO FERTILIZATION

The PDA’s health insurance proviso has created some interesting legal issues which are not applicable to the other portions of Title VII.

For instance, recently, an infertile female employee brought a PDA suit against her employer because her health insurance plan rejected her claim for in vitro fertilization procedures she had undergone.

The Second Circuit rejected her suit because the health plan’s denial of coverage impacted both males and females. Infertility is not a gender-specific medical issue.

The court held that the PDA did not apply because it was intended only to prohibit gender specific discrimination. Saks v. Franklin Covey Co., 316 F. 3d 337 (2nd Cir. 2003).

PREGNANCY LEAVE

Pregnancy issues also implicate an employer’s leave policy, the Family Medical Leave Act (FMLA) and potentially, the Americans with Disabilities Act.

While medical leave entitlement is employer-specific, FMLA leave will be awarded to an employee who has worked at least 1,250 hours in the preceding calendar year for an employer who has 50 or more employees.

A women in need of pregnancy leave would be qualified for FMLA leave if the previously mentioned requirements are also satisfied.

FMLA leave entitles a qualified employee to 12 unpaid leave weeks. During this leave period, however, the employer is required to maintain all of the covered employee’s benefits, including health insurance coverage.

Before any female employee contemplating having a family accepts employment, she should familiarize herself with that employer’s leave policies so that her entitlements are unambiguously clear. Of course, if she is covered by a union agreement, pregnancy leave is often included within it as a negotiated benefit; a further benefit of union membership.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.