Pregnancy Discrimination

Now that you’re pregnant and the initial excitement of your baby news has died down a little, you might have thought about what this will mean for your job. What rights do you have as a pregnant employee? What maternity pay and maternity leave will you be entitled to?

Maybe you’ve been treated in a certain way during your pregnancy or while on maternity leave and you’re not sure whether this is acceptable – or even against the law – and you’re not sure where to turn.

Perhaps you’re thinking about returning to work and have concerns about your continued breastfeeding journey with your baby and how you’ll manage once you go back to work.

These are all common thoughts that many women have during this time and important considerations that need to be made. They can potentially add significant stress to an already highly emotional rollercoaster.

If this is you, or if you want to learn more, then read on.

What are the rights of a pregnant woman?

Firstly, it’s important to realize that various legislation is in place to protect pregnant workers and pregnant employees from unfair treatment, dismissal and victimization during pregnancy and maternity leave and upon returning to work following maternity leave.

Legislation will differ slightly, depending on the country in which you live; however, it remains unlawful to discriminate because of pregnancy and pregnancy related medical conditions or absence.

Pregnant women have the right to:

Health and safety protection for themselves and their babies
Be protected from unfair treatment and dismissal because of pregnancy
Reasonable time off for antenatal care or appointments
Maternity pay or maternity allowance
Maternity leave.

Employers have a duty of care to ensure pregnant workers do not experience maternity discrimination in the workplace. If they fail to protect their pregnant employees, they leave themselves open to pregnancy discrimination claims being filed against them.

Employment legislation covers all employees, casual or agency workers, freelancers or contractors, irrespective of their length of service, unless otherwise stated in their employment contract.

Pregnancy discrimination figures

Research from the UK examined the nature and prevalence of pregnancy discrimination in the workplace and issues relating to pregnancy, maternity leave and returning to work.

The main findings showed:

1 in 9 mothers reported they were either dismissed, made redundant or treated so badly that they felt they had to leave their jobs
1 in 5 mothers reported harassment from their employer or colleagues or negative comments related to their pregnancy or their flexible working
1 in 10 mothers reported that their employers discouraged them from taking time off to attend antenatal appointments.

The Australian Human Rights Commission indicates that 18% of complaints made between 1999-2000 concerned alleged discrimination on the basis of pregnancy.

Why is it important?

Unfortunately pregnancy discrimination remains commonplace in the female labor force.

The statistics above are important; if scaled up to the general population, as many as 50, 000-100,000 mothers a year would be affected.

The report found that 54,000 women a year are forced out of their jobs because of pregnancy discrimination.

Legislation that protects pregnant women

United States

In US law, the Pregnancy Discrimination Act and the Pregnant Workers Fairness Act prohibit discrimination on the basis of ‘pregnancy, childbirth or related medical conditions’.

Pregnancy is seen as a ‘temporary disability’; therefore, pregnant workers should be treated in the same way as other workers with a disability, according to the Disabilities Act. This means that if an employee is unable to fulfil workplace duties due to being pregnant, the employer must make reasonable accommodations – for example, light duties, minimal lifting or alternative assignments.

The Pregnancy Discrimination Act also states that employers are obliged to provide pregnant women with the same level of insurance, disability leave, pay and support as any other employee with a disability. Legislation such as this declares it unlawful employment practice to discriminate or deny opportunities, pregnancy related benefits or work-based privileges, based on pregnancy or maternity.

Australia

Under the Sex Discrimination Act, female employees are protected against workplace pregnancy discrimination and unfavorable treatment because they are pregnant or might become pregnant.

A pregnant employee should be able to work in the same way and under the same conditions as any other employees, unless there is a valid safety or health concern.

The Sex Discrimination Act also helps to support women who return from pregnancy or maternity leave to be able to return to their previous job roles. If that job no longer exists, they should be offered a role similar in pay and duties as they held before.

Great Britain

In the UK, under the Equality Act (2010) pregnant workers are protected against unfair treatment, victimization and dismissal, due to pregnancy, breastfeeding or because they have recently given birth. Pregnancy and maternity are included in the nine protected characteristics stated within the Act.

Section 18 of the Act states:

‘A person discriminates against a woman if, in the protected period in relation to a pregnancy of hers, the person treats her unfavourably because of the pregnancy, or because of illness suffered by her as a result of it’.

This includes being treated unfavorably when seeking or on taking compulsory maternity leave.

Pregnant women have the right to health and safety protection for both the mother and her baby. They are also entitled to reasonable time off for antenatal care and appointments.

All pregnant employees are legally entitled to up to 52 weeks maternity leave and maternity pay and then the right to return to work afterwards.

What are the types of discrimination?

In Britain the Equality Act protects people against discrimination related to nine protected characteristics:

Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation.

The Equality Act doesn’t just protect against employment discrimination in the workplace but also within healthcare, education, businesses, transport and public services.

There are 4 main types of discrimination:

Direct discrimination. This involves treating one person unfairly based on one (or more) of the protected characteristics – for example, an employer not offering a job to an individual based purely on the person’s age
Indirect discrimination. This might occur when a rule or policy that is put in place has a worse impact on someone within a certain protected characteristic – for example, public meetings held in a space with no wheelchair access
Harassment. This is when people treat you in a way that violates your dignity, is demeaning in manner or in a way that creates a hostile environment – for example, using crude language when referring to a female employee
Victimisation. This means being treated unfairly if you are taking action under the Equality Act or supporting someone else in doing so. For example, you cannot be discriminated against for reporting someone for sexual harassment of a colleague.

What is pregnancy discrimination?

What do we mean when we talk about pregnancy discrimination? As we’ve already learned, pregnancy and maternity are protected within the Act, in the same way as any other of the protected characteristics.

To be subjected to pregnancy discrimination, a pregnant employee or applicant must suffer a disadvantage as a result of unfair treatment, due to pregnancy or a pregnancy related condition, breastfeeding or because of recently having given birth.

Examples of pregnancy discrimination

There isn’t one encompassing definition that describes exactly what pregnancy discrimination might look like, but here are some examples:

A refusal to recruit or the refusal of a job offer, due to a person being pregnant, or having the likelihood of becoming pregnant
Reduction in health insurance, health benefits or pay
Pressure to resign
Failure to remove risks, or assess health and safety considerations
Denial of promotion, or demotion
Termination of contract, or refusal to extend contract
Training refusal.

It’s important to remember that pregnancy discrimination charges can be brought against employers in relation to job applicants or employees being treated differently or unfavorably in any aspect of employment practices or employment decisions including:

Hiring
Firing
Pay
Fringe benefits (such as leave or health insurance)
Job assignments
Promotions
Redundancies
Training
Any other terms or conditions of employment.

How to prove pregnancy discrimination

Pregnancy discrimination can be difficult to prove, as most employers are smart enough not to leave a written trail of their actions.

In order to prove pregnancy discrimination, however, you do not need to have written proof.

You simply need to show that the employee’s pregnancy was the ‘motivating reason’ for the unfavorable treatment. This evidence might be circumstantial – for example:

Timings of events were ‘suspicious’; unfair treatment began shortly after disclosing the pregnancy
Reasons given for the unfavorable treatment were ‘unfounded’; the person was not selected for promotion because job performance was inadequate but, in fact, performance results were better than those of others selected for promotion
The person was treated worse than non pregnant employees, or male employees
Pregnancy or pregnancy related leave was considered ‘inconvenient’ for long term goals or upcoming projects within the business or company.

What is the protective period in pregnancy?

The protective period begins when you become pregnant and lasts until the end of your maternity leave, your return to work, or if you leave your job, whichever is the earliest date.

If unfavorable treatment occurs outside of the protected period, you might still be able to claim discrimination in the workplace under sex discrimination provisions.

Can I be fired for being pregnant?

The Pregnancy Discrimination Act and employment laws mean you cannot be fired solely for being pregnant. You are protected from unfavorable treatment, discrimination, victimization and harassment.

As a pregnant woman, you are entitled to a safe working environment for yourself and for your unborn baby. You should have protected time off for prenatal care and appointments, and maternity leave and pay. Following leave, you also have the right to return to work in the same job or, if that role no longer exits, you should be provided a job that is similar, with regard to assignments and pay.

Can I take time off for prenatal appointments?

When you’re pregnant, you are entitled to ‘reasonable’ time off to attend prenatal appointments; this should also include travel time. It can also include time for health and fitness or relaxation sessions to support your emotional and physical well being.

Although each pregnancy and each mother’s needs will be different, on average, a pregnant worker will be required to attend about 7-10 antenatal appointments throughout her pregnancy. However, if there are specific health concerns or complications, this number is likely to increase.

Although you do not need to disclose the details of your personal medical history, your employer may ask you to provide evidence of your appointments– for example, an appointment card.

Stress During Pregnancy | How Does Stress Affect Pregnancy?

What is a pregnancy related condition?

Employment laws protect expecting mothers – not just from unfair treatment due to pregnancy discrimination but also from unfair treatment due to medical conditions related to pregnancy.

A pregnancy related medical condition might include, but is not limited to:

Tiredness
Headaches/migraines
Back or pelvic pain
Nausea and vomiting
Bleeding
Blood pressure problems.

If you’ve been affected by nausea and vomiting in your pregnancy so far, you may be interested in our article When Does Morning Sickness Start… And End?

You might be asked to provide evidence of a doctor’s note or ‘fit note’ (Statement of Fitness for Work) if you require absence due to pregnancy related illness.

Time off due to childbirth or a related medical condition should not be counted or documented as regular sick leave. It should be documented as pregnancy related illness. This means any absence for these reasons should not be counted towards any absence review, or trigger any disciplinary points.

Once your maternity leave starts, you employer must pay for maternity leave, rather than sick pay.

If you are away from work due to a pregnancy related condition within 4 weeks of your expected due date, maternity leave might be triggered automatically, unless you or your employer choose to delay it.

Related reading: 5 Signs To Stop Working During Pregnancy.

What are my obligations as a pregnant worker?

Expectant mothers need to inform their employers of their pregnancy by the 15th week before their baby is born. If the average length of pregnancy is 40 weeks, 15 weeks prior to that is 25 weeks of pregnancy.

Naturally, you can tell your employer before this point and, depending on your job, it might be advisable, particularly if the nature of your work involves performing physically demanding jobs.

You might find, the sooner you let your employer know, the easier it’ll be to take time off for the necessary appointments.

Your employer will probably want to know about your pregnancy as early as possible, in order to address workplace risks and begin to take steps towards finding maternity cover. However, you are not legally obliged to inform your employer as soon as you are pregnant; this leaves you free to disclose it when you feel you are ready.

Bear in mind, though, you cannot claim pregnancy discrimination if those in your workplace are unaware of your pregnancy.

What next?

If you are unhappy about the way in which you’ve been treated at work during your pregnancy or while on maternity leave, in the first instance, try to resolve it amicably. Talking to your employer or HR department; it might be helpful to put down your concerns in writing so that they can be addressed constructively.

If this is unsuccessful in resolving the dispute, you can file a complaint by following your employer’s grievance procedure.

Before you plan your return to work, check out our article Returning To Work And Breastfeeding – 8 Tips To Help.