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1. CONGRATULATIONS: You’re Expecting! Now What?

• POP QUIZ •

(You’ve probably taken plenty of pregnancy tests already, but we bet some of these answers will surprise you!)

1. True or false: A woman may be legally fired for carrying a water bottle to stay hydrated when pregnant.

True. A court ruled that an employer may not be required by federal law to accommodate the needs of a healthy pregnant woman (i.e., one without any disabling or complicating condition). This is a true story!

2. You announce your pregnancy to your boss, who says, “As soon as you start showing, you’ll have to go on disability because we can’t have you looking like that in front of our customers.” Is this illegal?

Yes. You cannot be forced out on leave if you are able to do your job. Opinions of customers are not a valid excuse for discrimination.

3. You are offered a job, but before accepting, you ask about the company’s maternity leave policy because you are planning a pregnancy. The company abruptly withdraws the job offer. Is this illegal?

Probably. Proving this form of discrimination requires evidence of intent and is never a sure thing, but this is pretty suggestive of unlawful bias based on pregnancy.

It’s official. You peed on a stick and saw the sign. You are about to enter the next phase of your life. But now what?

Finding out you are pregnant should be an occasion for celebration, but it can also lead to anxiety or, even worse, unfair treatment on the job. You may start asking yourself questions: How and when should I tell my boss about my pregnancy? What if I need to take time off for prenatal appointments or morning sickness? What should I do if I think I’m not being treated fairly at work because of my pregnancy or impending parenthood? What are my legal rights as a pregnant woman, and which laws cover me?

This chapter aims to answer these questions and others you may encounter during your pregnancy. We start with a discussion of how to break the news of your pregnancy at work, including how to handle interview questions about pregnancy. Then we review the Pregnancy Discrimination Act and how it does (and sometimes doesn’t) protect you at work. In addition to describing the law, we offer tips on how to handle situations not technically covered by the law. We move on to discuss how the law may help you get a job modification to accommodate your pregnancy. Finally we tackle the topics of illness and prenatal care and whether you are entitled to any time off for your health needs while pregnant. Ready? Let’s get started.

Interviewing While Pregnant

What if you are trying to nail down a new job while pregnant? How do you handle that? First of all, you are not required to disclose your pregnancy to a potential employer, even if your bulging belly gives it away. You may decide to address the issue head-on and confront any assumptions your interviewer may have about your ability or intentions. But that’s up to you. Generally speaking, potential employers should not ask you about your pregnancy or family plans during the interview process. Such questions could indicate discrimination. Although not all questions are illegal, they may be if directed at only some people (i.e., women) and not others. For example, an interviewer can’t ask only women if they have children, and not ask the same question of men. Also, if you live in a state with more protective laws, certain questions may be expressly prohibited. (Check the state-by-state guide on page 201 for more information.)

If you are suspicious of an interview question, first make a mental note, so that you can jot it down after the interview for your records. (Some helpful advice: it’s always a good idea to take notes with dates of anything that smells fishy.) Then, instead of calling out your interviewer, try to address his or her underlying concerns while indicating that you don’t think the question is appropriate.

Here’s a hypothetical example:

Christina is interviewing for a job as the buyer for women’s apparel at a large nationwide clothing store. She has excellent credentials and nearly seven years of experience in the business. Her current position, as an assistant to a fashion designer, has required her to work late nights and travel extensively. She recently got married and is looking for a position that will allow her more control over her schedule in anticipation of starting a family.

Interviewer: So, I see that you’re working for Bob Duran. That’s a plum job! Why would you want to leave?

Christina: Working with Bob has been a tremendous opportunity for me, but I’m looking for a different kind of experience at this point.

Interviewer: And why is this job the answer?

Christina: I am eager to take on new responsibilities and apply my proven skill set to this position as a buyer, where I can have more creative control than as an assistant. I learned a ton from Bob, but it’s time to break out on my own.

Interviewer: He does cast a large shadow . . . So are you willing to put in Bob Duran–type hours in this job? We really need someone who will put in 110 percent. Our last buyer was great, but she had a baby and wanted to work part-time, and that just wasn’t going to work.

Christina: Well, I am certainly willing to work hard and get the job done.

Interviewer: But you also recently got married, right? Do you plan on having a baby soon?

Christina: I am really just enjoying being a newlywed at this point. My career is a major priority for me, and I am fully prepared to do an excellent job in this position no matter what my home life looks like. I have a solid work ethic and am excited to contribute to the team.

You’ve done your best interview jujitsu to deflect interview questions about your pregnancy or family plans, but you still don’t get the job. What now?

First, you should know what the law prohibits. An employer cannot refuse to hire you because you are pregnant and may not consider your pregnancy or possible pregnancy when deciding whether to hire you. The law entitles you to be judged on your capacity to do the job. For example, an employer can’t base his or her decision not to hire you on the assumption that, as a pregnant woman, you might have difficulty doing your job at some point or because he or she thinks customers would not want to deal with a pregnant woman. Similarly, an employer may not refuse to hire you based on the assumption that because you have (or will soon have) small children, you’ll be a distracted and unreliable employee. However, the law allows an employer to refuse to hire you if you cannot perform the major functions necessary to the job. If you disclose your pregnancy and indicate that you will need an extended leave during a time when the employer needs all hands on deck or indicate that you will not be able to work the required hours for the job, an employer might legally consider that information in refusing to hire you.

Think back to your interview and any other comments or interactions you encountered during your application process. If you have a strong sense that an employer improperly considered your pregnancy in the decision not to hire you, you may want to reach out to a lawyer for specific advice regarding your situation. It can be hard to prove that discrimination was at the heart of a decision not to hire you, but a lawyer can help you determine your best options.

What if you are offered a job, and the employer doesn’t know about your pregnancy? Again, you are under no obligation to disclose your pregnancy. In fact, if you do tell your new employer and the employer withdraws the offer, that alone could be illegal, and you can seek help from a lawyer. However, you may want to discuss your situation openly before accepting the job if you are concerned about how your pregnancy might interact with the job responsibilities. Also, keep in mind that you could risk the goodwill of your new boss if you keep this information to yourself and then announce, shortly after starting the job, that you are pregnant and will need time off. Assuming you don’t want to start your new job off on the wrong foot, honesty might be the best policy.

CAN WE TALK? BREAKING THE NEWS OF YOUR PREGNANCY AT WORK

Many women we talk to say how afraid they are of telling their boss about their pregnancy. This fear is real and often based on true stories of women who lost their jobs after announcing their pregnancy. Here are two of them:

I received a FedEx envelope at my door one morning; the owner of the gallery had been informed (from a colleague) that I had recently learned I was pregnant with my second child, [and] he felt that was an opportune time to “dismiss” me from my position as I would not be, as the letter of dismissal stated, “able to fulfill [my] obligations as Gallery Director.”

I got fired from my job at a private ambulance exactly one week after telling my boss I was pregnant. I was almost five months along. He immediately started looking for a reason to fire me. And he finally created one. You know what he did? He took the power stretcher off my truck and replaced it with a manual one (the kind you have to heave up to get it up/down/in/out the ambulance). I saw the power stretcher in the garage, unused and working perfectly, so I put it back on my truck, and used it to transport three patients. He then fired me for switching equipment without his permission . . . The icing on the cake? He fired me one week before I was eligible for unemployment.

These stories are horrible and, unfortunately, not uncommon. Although there is no guarantee that your employer will welcome your pregnancy news, we want to offer some general thoughts and tips as you approach this important conversation.

When to Tell

After you’ve shared your happy news with your family and close friends, you may wonder when you should tell your colleagues and your boss that you are expecting. Unless you need to request time off for pregnancy-related illness, there are no real legal deadlines for notifying your employer until late in your pregnancy, when you might need to request leave thirty days in advance of taking off for childbirth (see chapter 2 for more information). Still, at some point before that it will be apparent to those around you that your body is changing. Ultimately, the decision of when to tell others about your pregnancy is yours. That being said, there are a few things you should consider when making your decision.

As you have probably heard, the most uncertain period of your pregnancy is the first trimester, when miscarriages are more common. You may not want to give notice of your pregnancy at work too early, only to confront the pain of sharing the news of a miscarriage with your employer too. Keeping the secret to yourself for a while can also give you time to do some initial digging about your employer’s leave policies and some research about state and federal laws that might apply to you.

On the other hand, you may find it hard to stay quiet when you are exhausted, are feeling nauseated, and could really benefit from the support of your colleagues. Telling select colleagues early may allow you to talk openly with those you trust and find out how your employer has handled others’ pregnancies and leaves of absence before yours. Telling your boss can help you avoid health risks for you and your baby if you work in a job with safety hazards and will give your boss more time to digest the news, adjust to any restrictions that your pregnancy poses, and prepare for your leave. Sharing your news early also may generate goodwill from your boss (a valuable commodity!), who will certainly appreciate the extra time to plan around your maternity leave.

If your employer has a human resources department, you might consider telling them about your pregnancy first, before telling your supervisor. They may know more about the company’s policies than your boss does. However, be aware that the HR department’s first priority is your employer, not you. The department is not there to protect your interests.

It all boils down to how you feel about your work environment. If you feel comfortable and confident that your employer will take your news well, then by all means feel free to share as soon as you want. Beware, however, that a previously supportive supervisor can turn nasty once you’ve announced your pregnancy. We hear stories like this all the time through our hotline. If you already suspect that your news may not be well received, don’t feel pressure to disclose your pregnancy before you are ready. Take your time!

What to Say

When you do decide to tell your boss about your pregnancy, keep in mind that your happy news may be a source of stress for him or her. Despite the fact that the majority of working women return to work after giving birth, and most very successfully, some employers still fear that pregnancy and motherhood will mean losing a dedicated employee. To ease any worry your boss may have, reassure him or her that you are committed to your job and that you plan to return to work after the baby arrives. Offer your help in planning for your absence—for example, in planning who will cover your work while you are gone and how/if you will stay in touch while you are on leave. Be prepared for a conversation about maternity leave, and do your homework so that you know what the law guarantees and what you want to request from your employer (see chapter 2 for more information on the law, and take a look at the chapter 2 resources page for templates and tips to guide you in your negotiation). This will help you to negotiate the best possible outcome for you and your family.

So far, we’ve been assuming that you want to return to work after your baby arrives. But what if you don’t want to? It can be hard to anticipate how you will feel post-baby. The idea of caring for a dependent little person while also going to work every day may seem daunting in those early weeks. But you might also crave some independence and the benefits that work provides (not the least of which is money!). Give yourself time to make this decision so that you don’t close any doors on yourself unnecessarily.

DID HE REALLY JUST SAY THAT? CONFRONTING DISCRIMINATION AT WORK

Susan worked diligently for a small magazine for over a year, traveling and spending extensive time away from her fiancé. As her wedding date neared, her boss started asking whether her fiancé earned a good living and about her plans for starting a family. He even threatened, “You better not get pregnant on your honeymoon because we need you here.” Her coworkers also repeatedly told her she should not get pregnant on her honeymoon. Despite her excellent performance reviews, Susan was fired just a few weeks before she left on her honeymoon.

Even though discrimination based on pregnancy has been illegal for thirty-five years, bias against pregnant women is still common today. Some of this bias is tied to assumptions about child-care responsibilities and a pregnant woman’s future dedication to work (see chapter 4 for more). But some is just bias based on pregnancy itself. This kind of discrimination can have serious consequences, forcing a woman out of her job or into a lower-paying position with fewer benefits and opportunities. We want to help you know how to identify illegal discrimination and learn what you can do to protect yourself should it happen to you.

Keep in mind that even if your employer does something illegal under the law, litigation may not be the most effective strategy for you. For example, it may be too hard to prove that your suspicions are right if you don’t have enough evidence to show discrimination. Or you may not want to jeopardize your career in a particular field by filing a claim against your current employer. Or maybe you just don’t want to deal with the time and expense of litigation. Knowing your rights up front may help you to avoid the worst-case scenario of litigation and keep you healthy and earning a paycheck. We hope the information we offer here can help empower you to stand up for yourself or seek help as soon as you sense a problem. Prevention is often the best medicine.

The Pregnancy Discrimination Act in a Nutshell

WHAT?

The Pregnancy Discrimination Act (PDA) is a federal law that prohibits unfair treatment of women because of their pregnancy. It requires employers to treat women affected by pregnancy, childbirth, or related medical conditions the same as other job applicants or employees who are similarly limited in their ability to work (such as someone who has an injured back, for example).

WHO?

If you work for a private employer with fifteen or more employees, you are protected by the PDA. You are also covered if you work for state or local government. The law protects you as a job applicant from unlawful discrimination in hiring decisions as well. If you work for a private employer with fewer than fifteen employees, check our guide at the end of this book to see whether your state has a sex discrimination law that applies to smaller workplaces.

WHEN?

The PDA kicks in when you become pregnant, but it may also protect you when you are not yet pregnant or have already given birth. For example, if your boss is hostile or unaccommodating because she or he thinks you are pregnant or thinks you may become pregnant, that could be illegal. The PDA might also protect you after you come back from maternity leave, depending on the circumstances.

HOW?

The law prohibits your employer from discriminating against you in any aspect of employment, which includes hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits such as leave and health insurance, and any other term or condition of employment. Harassment based on pregnancy is also unlawful. Your employer also cannot force you to take a leave from work if you are still willing and able to do your job. Your employer must treat you the same as other employees who temporarily can’t do their jobs—for example, if someone with a broken hand is given modified work or someone recovering from heart surgery is given unpaid leave, you as a pregnant woman or brand-new mom are entitled to the same treatment.

WHY?

Discrimination based on sex was outlawed across the United States in 1964, but women were still routinely fired or expected to quit when they became pregnant. In 1978, Congress amended the Civil Rights Act of 1964 to clarify the law and guarantee equal opportunity for pregnant women and new mothers. The PDA is a minimum requirement, however, which means employers can offer more generous leave options to pregnant women than they offer other employees. State laws may also offer more protections than the PDA, so be sure to check out the state-by-state guide for more information.

What’s Right and What’s Wrong?

What is pregnancy discrimination?

1. An employer may not discriminate against you in hiring, firing, or any other terms, conditions, or privileges of your employment because of pregnancy, childbirth, or related medical conditions. What does that mean? Basically, an employer can’t take negative action against you at work, or in the decision to hire you, because of your pregnancy, because of your upcoming or recent childbirth, or because of any pregnancy- or childbirth-related medical conditions. Here’s a hypothetical example of illegal discrimination:

Jackie worked as a hostess at a popular and pricey cocktail lounge. When she told her boss that she was expecting a baby, he thanked her for her service and told her she was longer needed. In his words, “We can’t have you lumbering about with a tray full of cocktails. Our customers expect a more refined experience.”

2. Also, as we discussed earlier in this chapter, pregnant women and those affected by childbirth or related medical conditions must be treated the same as other workers who are similarly unable to work. Here’s another hypothetical example:

Alisha worked as a dental hygienist. When she got pregnant, her boss told her the office didn’t have a maternity leave policy, and she would have to return to work as soon as she used up all her sick and vacation time. Alisha found out that a former employee had been allowed to take unpaid leave for a month after surgery for breast cancer. Alisha should be allowed to take a similar unpaid leave after giving birth.

ADVERSE ACTIONS

In order to have a legal claim, you need to experience an “adverse action” or negative consequence as a result of discrimination. What does that mean? Let’s say that your boss says some inappropriate things about your pregnancy, but her or his comments have no real impact on your job. They’re not severe enough to amount to harassment, and you are able to continue working, take your maternity leave, and return to your job without incident. In this case, even though you feel offended and may have experienced some discrimination, there’s been no adverse action, so you are unlikely to have a claim for relief. What is an adverse action? Here are some examples.

After announcing your pregnancy at work, the following happens:

— Your boss cuts your hours, even though you never asked for reduced hours.

— You suddenly start receiving poor performance reviews.

— Your boss targets you for unsuitable or dangerous work.

— Your boss tells you to train others to do your job and transfers you into a lower-paying position.

Does that mean my employer can't fire me while I'm pregnant?

No. The law does not automatically protect you while you are pregnant. Your employer can still fire you or treat you badly for other reasons, just not because of your pregnancy. So if your work performance or attendance suffers during pregnancy, you are not protected from any discipline at work just because you are pregnant. Your boss can discipline you for those things, as long as she or he applies the same standards to you as to nonpregnant employees. In the United States, we generally have an “at will” employment system, meaning your employer can fire you at any time for any reason (because he or she doesn’t like your haircut, because you were late once, because your boss has decided he or she just doesn’t like you, etc.). There are a few exceptions—namely, your employer can’t fire you for discriminatory reasons, like if he or she found out that you were a Muslim or that you were pregnant.

Ever since I announced my pregnancy, my employer has been making my life miserable. My boss docks me a day’s pay for every time I come in late because of morning sickness and for each time I have a prenatal appointment with my doctor. He has repeatedly made nasty remarks about my pregnancy. Is this illegal? I’m seriously thinking of quitting because I just can’t take it anymore.

Harassment based on sex that is severe enough to create a hostile work environment is illegal. If your employer is harassing you because of your pregnancy, that is harassment based on sex and, if serious enough, may be unlawful. If the situation is so bad as to be unbearable, you may be experiencing something called “constructive discharge.” That means if you quit, you may have a claim against your employer because you were forced to do so, even if your boss never formally fired you.

I recently suffered my fourth miscarriage in a year, and my employer advised me to stop trying to get pregnant for a while, since it was obviously not working out. She told me I was missing too much time from work to recover and did not consider me for a promotion because of all of my absences. Is this illegal?

Possibly. The PDA protects you from discrimination based on pregnancy and related medical conditions, which includes miscarriage and abortion. Your employer’s first statement alone may not be enough to prove discrimination, but when viewed together with her decision to deny you a promotion, it is probably enough to suggest unlawful behavior. If you have a pregnancy-related disability, including a high-risk pregnancy, you also may be protected by the Americans with Disabilities Act or a similar local law (see the section below—Workplace Accommodations for Complicated or Difficult Pregnancies—for more information).

I recently found out that I was carrying a fetus with severe genetic mutations. My partner and I decided to terminate the pregnancy, but my health care plan is refusing to reimburse me for the medical costs. Is this illegal?

No. Although it is true that any employer-provided health insurance must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions, the PDA does not require expenses arising from abortion to be covered, except where the life of the mother is in danger.

I told my immediate supervisor I was pregnant, but I haven’t discussed it with our boss yet. When I told my supervisor, she said I better be sure not to make her life hard by taking time off for sickness or doctor’s appointments. Is this pregnancy discrimination?

It could be pregnancy discrimination even though it was only your supervisor who threatened you. A lawyer could help you figure out the answer in a specific case. But it’s important to cover all your bases by telling a higher-up boss or your human resources department about your pregnancy—and by telling them about any discrimination you feel you are experiencing. It’s also worth noting that women can be biased just as much as men; when it comes to discrimination, it is irrelevant whether a boss, supervisor, or human resource manager is male or female.

It’s common knowledge at the hotel where I work that pregnant employees will be asked to go home to “rest” when they start showing and will probably not be hired back after they give birth. Do I really have any rights if this is my employer’s policy?

Yes. The fact that your employer routinely forces pregnant women out of their jobs does not make it any more legal. You may want to enlist the support of an attorney or call a legal hotline or community group to get some advice before you try to discuss the issue with your employer.

Does the PDA guarantee maternity leave?

No. The PDA does not guarantee you any time off related to childbirth and does not protect your job while you are giving birth or recovering from delivery. (Read chapter 2 to see whether you might be entitled to job-protected time off under the Family and Medical Leave Act, and keep an eye out for interpretations of the Americans with Disabilities Act that might include recovery from childbirth as a disabling condition entitled to accommodation.) The PDA requires only that pregnant women be treated the same as other employees. This means that if your employer grants leave for employees with temporary disabilities, it must grant you some leave too for recovery from childbirth. But if your employer does not grant any temporary leave or sick leave of any kind for anyone, it does not have to provide leave for you related to your pregnancy. (If you work for an employer without any leave policy, you may still be entitled to some maternity or pregnancy disability leave under state law. Check out our state-by-state guide for more specifics about your state’s laws.)

On the other hand, the law does allow employers to do more for pregnant women if they want. The requirement of equal treatment prevents employers from treating pregnant women worse than other employees, but it doesn’t prohibit them from treating them better. For example, an employer can offer pregnancy disability leave to women, calling it maternity leave, and not offer the same to men. However, if an employer offers leave for purposes of bonding with a new child (not for recovery from the physical demands of childbirth), it must offer that to all parents, not just birth mothers.

How can I tell what type of leave my employer provides?

Look at your employee handbook. Check to see how birth mothers, temporarily disabled individuals, new parents, and those dealing with a family emergency are treated. If there is no employee handbook, or you are confused, you can ask around and find out who has previously been given leave and why.

Can my employer force me onto disability leave?

As long as you can do your job, you cannot be forced out. You must be allowed to work as long as you are able to do the work. The flip side of this is that if you cannot do the work required of your job, and your employer does not help out anyone else with similar limitations, you may be let go or forced onto unpaid leave. If you are forced out or are absent as the result of a pregnancy-related condition, but you then recover and are able to work again, your employer cannot require you to remain on leave until your baby is born. You must be allowed back to work.

What if I am forced onto disability and because of that don’t have enough hours to be eligible for the FMLA?

Aside from a potential PDA violation (as discussed previously), you may be dealing with a violation of the Family and Medical Leave Act. We talk more about the FMLA in chapter 2, including how many hours you must work to be eligible for time off. For now, you should know that if your employer is covered by the FMLA, your boss must not interfere with your rights under the law. Forcing you out on disability in order to prevent you from working the hours you need to qualify for FMLA leave could potentially amount to illegal interference with your rights. If this has happened to you, consult with a lawyer or workers’ rights advocate about your options.

UNEMPLOYMENT INSURANCE

If you do decide to quit your job, keep in mind that whether or not you can receive unemployment benefits will depend on how you leave. This is important because unemployment benefits can provide critical income to your family while you are out of work. To be eligible for unemployment benefits, you must have lost your job through no fault of your own, and be ready, willing, and able to work. The standards vary from state to state, but generally, you will not be eligible for benefits if you lose your job because of a personal choice. Quitting is generally seen as your choice and therefore your “fault.” Constructive discharge, or being effectively forced out of your job, is generally not considered your fault and should not disqualify you from unemployment insurance benefits. The law also may allow for certain exceptions where you can quit with what’s called “good cause.” For example, if you quit because of a medical reason related to your pregnancy, you may be able to collect benefits, even though you quit. If your job is high-stress and you have a high-risk pregnancy that is made riskier by the stress of your job, and your doctor advises you to stop working, you may be eligible for unemployment benefits, even if you are the one to call it quits. Similarly, if your employer refuses to allow you time off to attend prenatal medical appointments, you might have good cause to quit. Since the rules for unemployment insurance differ depending on the state where you live, check with a local expert before you take the plunge.

TIME-OUT FOR OUTRAGE!

Fact: a woman will not be able to work for a bit of time while she is in labor and recovering from childbirth. Fact: many women in the United States cannot take even minimal time off to welcome a baby without the risk of losing their jobs. Depending on which state they call home, women who work for smaller companies (those with under fifty employees) often have no right to time off to give birth. This is particularly true for women in low-wage jobs that lack basic benefits such as paid sick time, which could be used for childbirth. Contrast this with the United Kingdom, where all female employees are guaranteed up to fifty-two weeks of maternity leave by law and new mothers have to take at least two weeks of time off after giving birth! It’s enough to raise your blood pressure, right?

Does the Law Cover Me?

Does the law protect me if I’m not pregnant yet or anymore?

It should. Some “savvy” employers think that they can just delay firing a pregnant woman until after she returns from maternity leave, and they will be cleared of all wrongdoing. Not so fast, sneaky sexists! If you can show that you were treated unfairly because of your pregnancy, childbirth, or some related medical condition, the law should protect you even if you were not actually pregnant at the time of the mistreatment. This is an area of the law where courts are still ironing out the details. For example, some courts have found that the PDA protects from discrimination women who are on maternity leave and those who have just returned to work from maternity leave. (The FMLA, which we discuss in chapter 2, may also apply in this situation.) Here’s an example:

A woman who worked as a paralegal at a law firm for over fifteen years, who received glowing reviews all along, was terminated eleven days after she returned from maternity leave. One of the firm partners noted that she “had been out quite a bit the last nine months.” Another paralegal at the firm was also fired shortly after returning from maternity leave, after another of the firm’s partners suggested that her pregnancy created “the perfect opportunity to get rid of her.”

Other courts have held that the PDA prohibits discrimination against women on the basis of their ability to become pregnant and that the law prohibits an employer from firing a woman for undergoing IVF treatments. Here’s a real story from a recent case:

Elira worked as a server at a restaurant in a touristy area of New York City. The female servers and bartenders were encouraged to flirt with patrons. Elira had a friendly relationship with her supervisors and shared with them her hopes of becoming a mother. However, the day after she announced that she was moving from the evaluation and diagnostic phase of IVF to the treatment stage, she was fired.11

Not only are prepregnancy conditions covered, but discrimination against a woman because of her postpartum depression is also prohibited by the PDA (and the ADA, as discussed previously; see the section below—Workplace Accommodations for Complicated or Difficult Pregnancies—for more information). Definitely don’t rule out the possibility that the law may cover you just because you are not pregnant at the time you perceive discrimination. If you find yourself in this situation, you should seek legal advice. Also, be sure to write down the details of what your employer says to you, or what you overhear, while it’s still fresh in your mind. And if a colleague tells you about comments he or she overheard, write that down too. The key will be tying what your employer did to your pregnancy or childbirth.

Does the law protect me if I am an independent contractor/ freelancer/self-employed?

No. Unfortunately, the definition of “employee” under the PDA does not include independent contractors (whom the law treats the same as freelancers and those who are self-employed). That being said, plenty of employers improperly call their employees independent contractors to avoid complying with the laws that protect employees. So don’t assume you are not protected by the PDA just because the place where you work denies you an employee benefit plan, pays you by the hour, or treats you like an independent contractor for tax purposes. You could still be an employee, especially if you do not have a great deal of control over how and when you do your work. If you have any doubt about your status and the legal protections you may be missing out on, it’s a good idea to consult an attorney. And even if you are an independent contractor, you still may be able to seek justice under the common law (e.g., by claiming breach of contract) or your local law.

Does the law protect me if I am an undocumented immigrant?

Yes. The PDA does not let your employer off the hook just because you are an undocumented immigrant. However, being undocumented may affect what a court can require your employer to do if you are seeking to get your job back or to be paid for the time after which you were fired. You should seek the support of a lawyer and/or a workers’ rights community organization if you are worried about the consequences of your immigration status.

After being passed over for a few key assignments, I told my supervisor that I felt like she was treating me unfairly because I am pregnant, and then, two days later, she took away my flexible work schedule. Is this illegal?

It could well be. The Pregnancy Discrimination Act prohibits retaliation for exercising your rights, or complaining about potential violations of those rights, under the law. Retaliation usually happens close in time to the protected activity, and includes adverse actions (punishments) by an employer that could have dissuaded a reasonable worker from making or supporting a charge of discrimination. According to the Supreme Court, this could include taking away a flexible work schedule from a mother with young children.

What Can I Do?

I’m six months pregnant, and no one will hire me. I think it’s because my pregnancy is showing, but what can I do about it?

As we said earlier, it is illegal to not hire someone because she is pregnant. However, proving this might be difficult. If your interviewer did not acknowledge your pregnancy, then he or she can simply say that the company didn’t hire you because there was a more qualified applicant or that he or she got along with the other applicant better in the interview. In a tough economy, there will probably be no shortage of applicants, so proving a discriminatory intent can be difficult. However, talk to a lawyer; there might be something that can be done.

News of my pregnancy did not go over well with my employer, and I’m nervous that they might try to force me out of my job. What should I do?

The first thing to do if you suspect some kind of pregnancy bias is keep careful records of your conversations with your boss or other supervisors at work. Hopefully, the situation never comes to this, but if you do find yourself trying to prove discrimination down the road, this evidence will be helpful to support your case. When possible, correspond by email, and confirm conversations that way, so that you can be sure to have as much in writing as you can. Be sure to keep your files private, and do not store them on your work computer. Try talking to your boss and letting her or him know that despite your pregnancy, you want to stay on the job and will be able to work just as you did before. If your boss starts threatening you with termination, you could even let her or him know that it is illegal to fire someone because of pregnancy, but tread carefully. If you are ultimately fired or demoted, or you experience some other negative decision by your employer, you will want to seek some legal advice to assess the strength of your claims and your options for taking action.

My employer fired me a week after I announced my pregnancy but said it was because of tardiness. I have been late a few times in the last year, but my boss never mentioned it being a problem before! I think she just doesn’t want a pregnant woman in the store, but I don’t know if I can prove what’s in her head. Is there anything I can do?

Yes, you should talk to a lawyer about your specific situation, but you might have a pregnancy discrimination claim. As in much of life, the timing here is key. If you were fired shortly after announcing your pregnancy, that could be evidence of a discriminatory motive. What should you do? If filing a lawsuit seems like too much for you to handle, don’t throw in the towel! Sometimes a lawyer or other advocate can send a simple letter telling your employer that its actions were illegal, which could convince your boss to change her mind and rehire you.

I think my employer may have illegally fired me a few years ago, but I wasn’t ready at the time to fight them because I was dealing with the stress of a high-risk pregnancy and then a new baby. Is it too late to file a claim?

The PDA requires that before you file a claim in court, you first try to resolve your dispute before the Equal Employment Opportunity Commission (EEOC) or a state agency that enforces the law. The EEOC is a federal government agency that enforces discrimination laws. The time limit for filing a charge with the EEOC is 180 days (around six months), although it may be longer if you live in a state that also enforces an antidiscrimination law similar to the PDA.

If the discrimination you suspect didn’t result in the loss of your job but did impact your pay, you may be able to take advantage of a longer deadline for filing your claim. In 2009, Congress passed a law to address the case of Lilly Ledbetter, who worked for Goodyear Tire for almost twenty years before discovering that she had been paid less than her male counterparts that whole time. She sued Goodyear, but the Supreme Court ruled against her, saying that she had missed the 180-day deadline for filing her claim. The court said that the first time she was paid less because of gender discrimination marked the start of her time clock, and since that was years before she filed her claim, she was out of luck. Congress passed the Lilly Ledbetter Fair Pay Act to fix this problem; now, with every new paycheck you get that is tainted by discrimination, your clock for filing a claim resets.

Even if you are too late to file a claim, you can still make your voice heard. You can contact a women’s rights organization or community group that cares about pregnancy discrimination and share your story so that they may use it in their fight for better laws (you can always contact our organization at babygate@abetterbalance.org). You also may want to contact your state attorney general’s office and report any discrimination you suspect. Sometimes, employers can be repeat offenders, and the attorney general’s office may want to investigate a problem employer, even after the time limit for filing a claim has passed. Pursuing justice outside of the legal system might not help you get your job or pay back, but it can have a big impact on laws and policies that will protect you and other women in the future.

STAYING HEALTHY AND EMPLOYED: WORKPLACE ACCOMMODATIONS FOR PREGNANCY

Alexandra worked for two years as the office manager in a small doctor’s office. Her relationship with the doctor was generally strained, but in the months after she announced her pregnancy, it got progressively worse. The doctor did not allow Alexandra to take a lunch break or use any paid time off for her prenatal appointments, so when she had to visit the doctor, she had to take a full day off work without pay. Halfway into her pregnancy, the doctor told Alexandra that he was demoting her and cutting her pay and instructed her to train another employee to take over her responsibilities. Shortly thereafter, he fired her. Alexandra’s boss told her that he should have fired her on the spot once she informed him she was pregnant and that any reference he might give her would depend on how she handled her termination.

I was pregnant and had horrible morning sickness (my doctor was going to hospitalize me—it was that bad) and was running to throw up every twenty minutes. [My bosses] seemed like they would be accommodating, having a separate place for women to pump, but they told me [that] they would only give me one extra fifteen-minute break (that I couldn’t split [it] up into fifteen one-minute breaks to get sick; I could only take one a day) AND I had to email someone and get permission before I could use it . . . I was fired when one day I was driving to work and threw up in the car and was late to work because I had to change and clean up . . . I called to let them know, and they told me to come in covered in puke if I had to, but if I was late, [not to] bother coming in.

Unfortunately, we hear lots of stories like these—pregnant women who experience unfair treatment at work after announcing their pregnancies. Although we hope you are fortunate enough to have a boss who is understanding and eager to help, we realize this may not be the case. Even those who have good relationships with their employers sometimes see those relationships sour once the news is out.

Workplace Accommodations for Complicated or Difficult Pregnancies

We hope that you are blessed with an easy pregnancy and that you glow right through your due date! But you may find yourself, like many women, facing unexpected complications related to your pregnancy. These could range from severe morning sickness to a diagnosis of preeclampsia or some other condition. If this does happen, keep in mind that you may have additional rights under federal, state, and local disability laws designed to help people with limitations stay on the job. If you have a disability under the law, you can seek what is called a “reasonable accommodation” from your employer—that is, some change to your workplace or work schedule that allows you to continue working despite your condition, such as the option to work from home. Such accommodations are required unless they impose an “undue hardship” on your employer’s business. For example, a particular business may not be able to function with someone working part-time or may not be able to afford special equipment that someone with a disability might need. If that is the case, then the business is not required to make these accommodations.

Recent amendments to the Americans with Disabilities Act have made it easier for a wider range of people and disabilities to qualify for protection, including women with pregnancy-related disorders. For example, a woman diagnosed with gestational diabetes may be covered by the law and entitled to reasonable accommodations from her employer. Let’s say this woman works as a cashier at a big-box store and usually is allowed only one meal break at lunchtime. With her diagnosis, she may qualify as having a disability (even if only temporarily) under the law and be entitled to more frequent meal breaks. These minor changes to her schedule may allow her to keep working in spite of her condition, whereas without them she might be forced onto unpaid leave or be forced to quit her job. It’s important to remember, though, that the law doesn’t guarantee you the exact reasonable accommodation that you request, just any accommodation that will let you do your job. It’s up to the employer to decide which accommodation might be best.

We hear from lots of women who have high-risk pregnancies these days, and many of them also may be protected under the recent amendments to the Americans with Disabilities Act. This is an area of law that is still being ironed out, but the Equal Employment Opportunity Commission has been encouraged to issue some clarifying guidance on this topic.12 Even if you don’t think of yourself as disabled or high-risk, the Americans with Disabilities Act or a local disability law could still cover you. If you have back pain, spotting, nausea, fatigue, hypertension, migraines, or other conditions that are exacerbated by your pregnancy, for example, then you might be protected, depending on other factors (check with a lawyer and take a look at our full list on page 184).

Not only do you have to have one of these issues to be protected by the law, but your condition also has to affect your daily life in some way (the legal term is that it must “substantially limit a major lift activity”). For example, the EEOC has clarified that “someone with an impairment resulting in a twenty-pound lifting restriction that lasts or is expected to last for several months is substantially limited in the major life activity of lifting.” Also, to be protected by the law, you have to tell your employer about the specific problem you are facing, not just the fact that you are pregnant. Mention the condition in writing just to be sure, but read our caveats about doctor’s notes in the next section. We don’t want to get your hopes up, because as we said, this is a very uncertain area of the law, but we think there is an opportunity to expand rights to more workers who need them right now. If you find yourself in need of a minor adjustment at work because of your pregnancy, we really encourage you to seek legal advice.

The Americans with Disabilities Act in a Nutshell

WHAT?

The Americans with Disabilities Act (ADA) is a federal law that bans discrimination against people with disabilities in employment and other areas. The law defines a disability as a physical or mental impairment that substantially limits a major life activity. This means that those with pregnancy-related disabilities, such as gestational diabetes, are probably covered by the ADA. However, normal pregnancy is not covered.

WHO?

You are protected by the ADA if you work for a private employer with fifteen or more employees. You are also covered if you work for the state or local government. If you work for a private employer with fewer than fifteen employees, check our state-by-state guide to see if your state has a disability discrimination law that applies to smaller workplaces.

WHEN?

This law kicks in whenever your employer knows about any qualifying limitation that you have. The law also applies if your employer thinks that you have a disability, even if you don’t, or if you are associated with someone with a disability, such as a child with special needs.

HOW?

The law does not just protect against discrimination in hiring, training, pay, and other employment privileges. It also requires employers to accommodate employees with disabilities so that they can do their jobs. Reasonable accommodations might include modifying equipment or reassigning someone to an open job position that might suit her or his needs better. You could try to get a part-time schedule, for example, although your employer does not have to do anything that would come at great cost to the business. Reasonable accommodations are not required, however, for workers who have an association with a person with a disability. This means that the parent of a child with severe asthma, for example, would not be entitled to an alternate work schedule to accommodate caregiving responsibilities to his or her child.

WHY?

Congress passed this law in 1990 to eliminate discrimination against people with disabilities. Congress passed amendments to the law in 2008 because Congress did not like how the Supreme Court had limited the law. The new amendments ensure that the law will cover many more people.

The Americans with Disabilities Act (ADA) also requires an interactive process, where your employer has to consider your individual situation and try, in good faith, to find a solution to help you stay on the job. Many states and cities have laws that mirror the ADA but that are even more inclusive than the federal law. In New York State and New York City, for example, failing to engage an employee in an interactive process could be a violation of the law in and of itself. Local laws often cover smaller employers than the ADA and also may cover a wider range of conditions. If you find yourself dealing with a potential pregnancy-related disability, consult your local civil rights agency or an attorney and see whether you might be entitled to accommodations on the job.

Our partners at WorkLife Law have prepared this sample doctor’s notes for women who suffer from pregnancy-related impairments and seek coverage under the ADA. Be sure to read further in this section to learn more about doctor’s notes and important caveats.

MEDICAL CERTIFICATION TO SUPPORT REQUEST FOR WORKPLACE ACCOMMODATION

Patient/Employee/Applicant Name:

Address:

Employer Name:

Employer Address:

Dear Sir or Madam:

On June 15, 2014, my patient Ms. Jane Doe consulted with me in my office. I diagnosed Ms. Doe, who is pregnant, with carpal tunnel syndrome. Consistent with this diagnosis, Ms. Doe needs an accommodation at work until her baby is born, on or around November 1, 2014.

Because of Ms. Doe’s carpal tunnel syndrome, and her associated limitation on repetitive use of both hands for more than 30 minutes without a break, she is having difficulty typing for long periods of time and should be allowed to take a 5-minute break after 30 minutes of continuous typing.

For more information, you may wish to consult the Job Accommodation Network at http://www.askjan.org.

Name of health care professional:

Type of practice/medical specialty:

Address:

Phone number / email:

Signature / date:

Workplace Accommodations for Healthy Pregnancies with Limitations

Even if your pregnancy is not complicated by any particular health concerns, you may find yourself unable to do certain parts of your job the way you used to or you may not want to do your regular work if it poses a risk to your or your baby’s health. According to a recent survey,13 a majority of women need some sort of change at work due to their pregnancy—more frequent breaks, such as bathroom breaks, are the most common request. A little over half of the women surveyed needed a change to job duties, like more sitting or less lifting. Unfortunately, a lot of women who needed accommodations did not ask for them (likely because of fear of retaliation), and others who did ask had their requests denied. Hopefully your employer will be understanding and willing to help you find a way to work around your limitations. Unfortunately, not all employers are so kind. Here are two true stories we heard in New York, the first from a physician and the second from one of our clinic callers:

In the spring of 2012, I treated a pregnant woman who arrived in the emergency department during my shift. She was working as a cashier at a large retailer in the city and was 16 weeks pregnant. Despite doctor’s orders that she remain vigilant about drinking water, she was severely dehydrated. When I inquired why she was not drinking adequate amounts of fluids, she told me that her boss would not allow her to drink water while working at the cash register. While standing for hours at the register, the woman fainted and collapsed. She was rushed to the hospital by ambulance, where I ordered her intravenous fluids.

A doctor’s note changed the course of my life. When I pulled a muscle at six months pregnant, my doctor advised that I temporarily avoid heavy lifting while working for an armored truck company on Long Island. My boss took one look at the note and sent me home without pay indefinitely; the result was devastating. At six months pregnant, no one was willing to hire me. I had a four-year-old at home and was the primary income earner for our family. We fell behind in rent and applied for public assistance. Two weeks before my due date, I lost my health insurance. We struggled to put food on the table; it was an extremely difficult time.

These stories probably would not have happened in California,14 where pregnant women are eligible for reasonable accommodations on the job even if their pregnancies are not disabling according to the law. If you are fortunate enough to work in California (a theme we’ll return to a lot), you can take advantage of a specific law that requires employers to provide a reasonable accommodation for conditions related to pregnancy, childbirth, or related medical conditions, if an employee requests such an accommodation with the advice of her health care provider. Let’s go back to the example of the cashier at the big-box store. Let’s assume that she doesn’t have gestational diabetes but does need to urinate frequently and can’t comfortably stand on her feet for hours at a time. She has been advised by her doctor to sit while at work and to take more frequent breaks. Thanks to the law in California, the cashier can ask for—and probably receive—a stool and more bathroom breaks. These minimal changes to her schedule and workstation will allow her to take care of herself and her baby’s health while also earning critical income her family needs. And her employer keeps his employee on the job, avoiding the turnover costs of hiring and training a replacement. A win-win!

What types of accommodations might you request? Here’s a list of some possible workplace changes that you might ask for to help you maintain a healthy pregnancy while working:

— Ability to sit for periods of time while on a shift

— Bathroom breaks

— Food or drink breaks

— Ability to carry water with you during work hours

— Flexibility around dress-code requirements

— Limits on lifting requirements

— Transfer to a less strenuous or hazardous shift, position, or work location

— Avoiding certain hazardous duties or chemicals, toxins, etc.

— Limited time off or altered work schedule to accommodate medical visits

— Reduced or flexible schedule

What if you are healthy and don’t live in a state that provides better protections, such as California or New Jersey, but you still need a change at work—such as a bigger uniform? If your employer makes changes for other workers then they have to treat you the same (a common theme for this chapter). For example, if someone with a broken foot is allowed to alter the dress code, then you should be able to as well. Talk to your boss about your options: maybe you can wear maternity pants that are the same color as your uniform, even if they aren’t an exact match, for example. Additionally, the fact that an employer refused to accommodate your pregnancy could suggest pregnancy discrimination, depending on the circumstances. Talk to a lawyer to find out and look at our checklist at the end of this chapter to be sure you have covered all your bases.

SAFETY FIRST

Are you shocked to hear there aren’t more protections to ensure pregnant women’s health and safety? Yet again, the United States is behind the times in comparison to other countries such as the United Kingdom and the countries of the European Union. In the United Kingdom, for example, employers have to assess the workplace to identify any risks to pregnant and breast-feeding women. And then the employer has to remove the risk or offer the mother alternate employment—or provide her with paid leave if neither option is possible.

Spotlight on NYC

New York City now has a law ensuring that pregnant workers in the city will not be pushed off the job when they need a modest accommodation in order to stay healthy and at work. Employers with four or more employees must provide reasonable accommodations for workers who have needs related to pregnancy or childbirth, or any pregnancy-related medical conditions. Employers have to comply with these requests, unless it would be an undue hardship—meaning, basically, that it would be really expensive or difficult. This means, for example, that a cashier at a Brooklyn pizza shop who is seven months pregnant and starting to get swollen feet from standing all day can request and receive a stool to sit on in front of the cash register or some other accommodation to let her keep working. For those of you working in NYC, here’s a sample letter you could write to your employer if he or she denies your initial request for accommodation. Other workers in other jurisdictions that have similar laws (such as New Jersey) can use this as a template and adapt it.

Sample Letter to Your Supervisor in New York City

TO:

FROM:

RE: The New York City Pregnant Workers Fairness Act

First, I want to thank you for your support during my [number] years with [company]. This is an exciting time for my family as we prepare for the birth of our child. I am eager to work with you to find a solution that will ensure I am able to be healthy and productive throughout my pregnancy.

As we discussed, I am requesting a reasonable accommodation so that I can continue working safely throughout my pregnancy. The New York City Pregnant Workers Fairness Act (PWFA) requires employers to provide reasonable accommodations to employees who have needs related to pregnancy, childbirth, and related medical conditions. I am entitled to this accommodation under the PWFA because I have a need related to my pregnancy, [company] has four or more employees, and because my requested accommodation would not cause an undue hardship on [company]. I know that additional local, state, and federal laws may also apply to my situation, such as the Pregnancy Discrimination Act or the Americans with Disabilities Act Amendments Act.

According to a Job Accommodation Network (JAN) survey of over one thousand employers, the business benefits of providing reasonable accommodations to workers with disabilities far outweigh any cost. According to the survey, “Employers reported that providing accommodations resulted in such benefits as retaining valuable employees, improving productivity and morale, reducing workers’ compensation and training costs, and improving company diversity.” Since any needed accommodation associated with pregnancy is only short-term, the benefits of a policy of accommodating workers who are pregnant or recovering from childbirth are likely to be even greater and the costs even lower than those studied by JAN.

I look forward to working with you.

Sincerely,

[Your name]

Just What the Doctor Ordered

What if your employer asks you for a note from your medical provider verifying pregnancy limitations or specifying what you can and cannot do on the job? Our advice: tread carefully. Unfortunately, we have seen doctor’s notes come back to bite employees all too often. Here’s one example from one of our clinic callers:

I worked in a supermarket in New York City for eleven years. When I first became pregnant in 2005, I didn’t ask for any accommodations because I was scared I would lose my job. I did heavy lifting and was worried the whole time about my health and my baby’s health. Thankfully, I had a healthy pregnancy and gave birth to my first daughter. When I returned to my job from my maternity leave my boss changed my shift to 5:30 a.m. in the morning, hoping I would quit. Waking up for a 5:30 am shift with a new baby was incredibly difficult, but I did it for two months until he finally changed my shift back. The next time I got pregnant in 2007 I told my manager and asked not to do any heavy lifting. He actually responded by giving me more heavy lifting to do. I think he was hoping I would quit. Sadly, I miscarried and suffered a series of miscarriages before finding out I had a blood clotting disorder.

After learning about this problem, the next time I got pregnant in 2009 I turned in a doctor’s note to my boss with a five pound lifting restriction. The note also said I should take breaks when I was tired and shouldn’t constantly go up and down stairs. My employer told me they had no job for me with those limitations, but I know they could have found work for me to do, like working in the deli. Another coworker had a shoulder problem and they accommodated her. They fired me, but thankfully my union helped me get disability payments for twenty-six weeks. Unfortunately, they were only a fraction of my usual salary. After the twenty-six weeks was up I had to go on unpaid leave for four months. I lost my health insurance and had to go on Medicaid. My family and I survived on food stamps and my savings. When I finally returned to work, I had nothing left in my savings account.

Many women believe that a note from their medical provider will protect them at work, and they feel more confident asking for a workplace modification with the support of such a note, but we have seen employers use medical notes to exclude women from their jobs altogether. We thought it would be best to go through some frequently asked questions here so you know what to expect if you find yourself needing a note from your provider. You should also take a look at our summary of “Talking to Your Boss About Your Bump” at the end of this chapter.

I need some changes at work because of a pregnancy-related condition. What if my employer says I have to get a note to continue working?

Sit down with your boss, and tell her that you have a pregnancy-related medical condition or need and require a “reasonable accommodation” (use that phrase). Come prepared with a plan—how do you propose to make this work? Ask for something reasonable, cheap, and relatively easy for your boss to provide that will allow you to continue performing the essential functions of your job. If she says no, then negotiate and ask what she would be willing to offer. Verify the conversation in writing afterward and take notes about your boss’s reaction or anything she says during the meeting.

If your boss asks for a doctor’s note verifying your request, try simply to put your request in writing and see if that is sufficient. If your boss still insists on a doctor’s note, make sure your note is as specific as possible to address your pregnancy-related condition.

I am pregnant but don’t need any changes to my work at this time. What if my employer still requires a doctor’s note to allow me to keep working?

Unless your employer regularly requires employees who have disclosed medical conditions to provide doctors’ notes to continue working, this kind of request may reveal a discriminatory motivation. Try putting in writing that you can and want to continue working as normal. Find out if others with medical conditions must bring in notes when they don’t have any need for accommodations. If not, your employer can’t single you out just because you are pregnant. Talk to your medical provider and find out if she would be willing to write a note that simply states that you have no pregnancy-related conditions or limitations and are capable of performing all essential functions of your job. If your employer has a general policy requiring employees have “no restrictions” to work, that is most likely a violation of disability laws.

I decided I want to bring in a doctor’s note—is there anything it should say or should not say?

First, take a look at the state-by-state guide and talk with your provider to find out if you have any problems related to your pregnancy that may qualify for coverage under disability law. If so, then take a look at the sample doctor’s notes for disabilities earlier in this chapter. If not, then we recommend using the sample note from California (see below) for guidance. The most important thing to remember is that the requested accommodation and described restrictions should be as specific as possible. For example, your doctor should avoid general prescriptions like you “need light duty” or “should minimize heavy lifting.” These recommendations are too vague and will only lead to problems at work—you might even be pushed out of the workplace indefinitely, or until your employer has clarification. Similarly, notes that say you cannot lift more than fifteen to twenty pounds should be more specific. Does this mean you can’t lift more than fifteen pounds or more than twenty pounds, or does it depend on some other factor? Can you lift that much sometimes or never? What if you get assistance? Ask your doctor to tailor the letter to the duties at work that you need to avoid. For example, if you never lift heavy things, but do push heavy carts or patients, have the note specify how much weight you can push, not how much weight you can lift (you can push a lot more weight on wheels than you can lift!).

Help! I’m being pushed out even though I want to keep working. What now?

Ask a lot of questions and assert that you want to keep working and can keep working. Let them do the talking and then take careful notes afterward. The more you listen and ask questions, the more you will understand their motivations, which could very well be illegal. You may suspect pregnancy discrimination, but it’s better to have proof—like an email from your boss making stereotypical assumptions about your work because of your pregnancy.Here are some things to watch out for and take note of:

— Any concerns your employer expresses about your health or the fetus’s health.

— Any concerns your employer mentions about her own liability.

— Offensive comments about your pregnancy or family.

— Did your employer ask for a doctor’s note before you even requested any accommodations?

— Do others have to get a doctor’s note, like someone who needs an accommodation for a disability or injury?

— Does your employer have any policies (either in writing or that she has told you about) that effectively exclude pregnant women from the workplace (like an unrealistic requirement to lift fifty pounds)?

Talk to a lawyer and be sure to mention any of the above that you have observed. They could be evidence of pregnancy discrimination. Even if your employer seems like she is looking out for you—maybe she says she doesn’t want your baby to be hurt—that could still be illegal. Courts have long recognized that paternalistic concerns for pregnant women’s health have been used to limit women’s rights.

My employer says they don’t have “light duty,” but I can’t do heavy lifting like I did before I was pregnant, what should I do?

Gather information to make a case for yourself—does your employer provide light duty for other workers, like those who are injured on-the-job or those who are disabled? Most, but not all, employers do. If so, then you may be entitled to light duty under the Pregnancy Discrimination Act. Is there a light duty position available that you could fill? Could you simply shift some of your duties to a coworker, or do you need a temporary transfer to another position? Try to work it out with your employer and explain that any changes are only temporary. If your employer requires a doctor’s note, be sure to check if you have a problem that may qualify you for coverage under disability law (see page 183) and be sure that the doctor’s note is very specific (outlining exactly how much weight you can lift and how often). If your employer truly doesn’t provide light duty to anyone else and there are no other options, at least try to get your boss to hold your job open for you so you can return after giving birth.

I live in California, do I have to give my employer a doctor’s note?

Yes, the law does require that you request an accommodation based upon the advice of your health care provider. Our partners at the Legal Aid Society—Employment Law Center, based in San Francisco, have prepared this sample doctor’s note for California women requesting a reasonable accommodation:

Your Health Care Provider’s Letterhead

[Date]

To Whom It May Concern:

I am the [treating physician, nurse practitioner, nurse midwife, licensed midwife, clinical psychologist, clinical social worker, licensed marriage or family therapist, licensed acupuncturist, physician assistant, chiropractor, social worker, or health care professional] for [Your Name].

[Name] has a condition related to [pregnancy or childbirth]. [Note: This can be any physical or mental condition that is intrinsic to pregnancy or childbirth, including, but not limited to, lactation. You do NOT need to reveal a diagnosis or details of the condition, but you do need to state that the patient has a condition related to pregnancy or childbirth.]

As a result of [Name]’s condition, it is medically advisable that she receive the following accommodation: [Describe requested accommodation here. E.g., to avoid lifting over [X] lbs., to avoid climbing ladders, to avoid exposure to toxic fumes, permission to drink water or snack during her shift, a larger uniform, a modified work schedule, more frequent bathroom breaks, a stool or chair to sit on, additional break time and a private space to express breast milk, a temporary transfer to a less strenuous or hazardous position].

This accommodation became medically advisable on [Date]. At this time, I anticipate that [Name] will need this accommodation for [duration of accommodation].

Thank you.

[Signature]

My employer wants to talk to my doctor directly—should I allow that?

We think it’s best if you stay involved in any conversations between your medical provider and your employer. Your provider needs your permission to say anything to your employer about your medical condition, so you should be clear when giving that permission that you want to be present for any and all conversations. This way you can stick up for yourself if you need to, but you will also know exactly what was said in any meetings.

My employer has a form she wants my doctor to fill out so I can keep working—it’s a checklist saying what I can and cannot do at work. Does my doctor need to fill this out?

It’s best if your provider can explain in his or her own words what limitations or restrictions you may have. Unfortunately, checklists can lead to confusion or miscommunication. First, see if a note from your provider can replace the checklist. If that won’t fly, then have your provider fill out the checklist, but include an accompanying letter to provide explanation and clarification. The provider can then attach a note. As we have discussed, be prepared that checking off that you cannot perform a particular task may be used to push you out of the workplace.

I have a doctor’s appointment tomorrow, what should I ask my doctor?

It’s important to talk to your medical provider about your job duties before you announce that you are pregnant at work. Make a list of the functions you do on a typical day and the things you do infrequently. Take a look at your job description (from the handbook or when you were hired), this can help you make a list of not only what you do, but also what your employer says you need to be ready to do at work. Write down any chemicals, toxins, or other hazards (like radiation), that you may have exposure to. Be sure to write down, before your appointment, any concerns or questions you have about your work.

Go through each item with your provider to find out if there’s anything you need to worry about, either at this stage or later as your pregnancy progresses. Of course, some women who have been pregnant before or who feel comfortable with their job duties may not need to do this, but for those who have questions, it’s best to come prepared since medical providers may not understand what kind of work different jobs entail. A retail worker may be exposed to harmful cleaning chemicals, for example, if she needs to clean up the store, but a doctor may not realize that unless the patient brings it to his attention.

Checklist for Staying Healthy and On the Job While Pregnant

1. Check your employer’s policies to see whether you are entitled to accommodations while pregnant. If you are a union member, check your Collective Bargaining Agreement and speak with your Union Representative or Shop Steward.

2. Talk to your doctor to find out if you have any diseases, disorders, illnesses, or other medical problems to see if you might qualify for coverage under disability law, as discussed earlier in this chapter. Even if you don’t think of yourself as “disabled,” you could be covered, especially by more expansive state and local laws, if, for example, you have pelvic pain or shortness of breath. If you are found to have some form of a disability, then disability laws may entitle you to a reasonable accommodation.

3. Check to see if your state or city has a law that guarantees the right to seek accommodations for your pregnancy.

4. Check your employer’s policies about others with limitations at work, such as those with disabilities or on-the-job injuries and ask around to find out how others temporarily unable to do some job duties have been treated by your employer.

If the rest of your checklist came up empty, and your employer is not required by law to help you, then try appealing to your boss’s humanity and to her bottom line or seeing if coworkers might be able to cover some of your duties. You may also want to talk to an attorney to find out if your employer’s policy or the fact that she refused to accommodate you may be evidence of pregnancy or disability discrimination.

SICK AND TIRED: TIME OFF FOR PREGNANCY-RELATED ILLNESS AND PRENATAL CARE

My first pregnancy was horrible in the beginning. I suffered from hyperemesis, when your body cannot tolerate the pregnancy hormones and you are so sick that you lose weight instead of gaining it. I didn’t dare say anything to my employer because I knew that they did not care about anything but my billable hours. In fact, I was terrified to tell them I was pregnant because I thought they would discriminate against me. So I suffered through it.

As many expecting parents know, “morning sickness” is not always limited to the early hours of the day. In fact, nausea, fatigue, headaches, and more can dog a pregnant woman all day and for months at a stretch. It can be hard to keep up with work when you are struggling to stay upright or keep food down. Many pregnant women recover their energy in the second trimester, but for some the sickness persists throughout the whole pregnancy. And on top of all that, a good number of pregnant women need to go on bed rest toward the end of their pregnancies, to avoid preterm delivery. So what should you do if your pregnancy forces you to miss work?

The law protects you in several ways. First of all, the Pregnancy Discrimination Act (PDA) requires that your employer treat you the same as any coworker who also has to miss work because he or she is similarly unable to work. So if a colleague has to miss work periodically over a few months for medical treatment or for continuing education classes, and your employer allows him or her to do so without penalty, the same rule should apply to you. Or imagine one of your colleagues injures his knee playing basketball and has to keep his leg elevated for a few weeks. If your employer allows the coworker to work from home while his knee recovers, he or she should also allow you to work from home while you are on bed rest. Similarly, if your employer provides paid sick time, he or she has to allow you to use that time for your pregnancy-related illness and absences.

Second, if you are eligible for leave under the Family and Medical Leave Act (FMLA, which we discuss in much greater detail in chapter 2), you are entitled to time off for pregnancy-related illness, bed rest, and prenatal appointments. The law is more lenient in the case of pregnancy than for other disabling conditions: you don’t have to be under the care of a doctor or be absent for more than three days to qualify for this kind of time off. So let’s say you are late to work one day because you spent the morning face to face with your toilet bowl; you can count that time as FMLA leave (see chapter 2 for more information). Even if you are late by only a few minutes, you may be able to count this time off as protected leave. This is called “intermittent leave” in the law. One downside is that any FMLA time you take before your baby is born is time you won’t have for bonding leave after he or she arrives—you get only up to twelve weeks in a twelve-month period, and all FMLA-qualifying time you take in that twelve-month period counts toward your total.

Samantha worked for nearly two years as a receptionist at a large nonprofit. At thirty-two weeks into her pregnancy, she was struggling with health problems related to her pregnancy and was coming in late and missing work a lot as a result. Unfortunately, Samantha had already used up her sick leave, and her boss said that he wanted her to start her maternity leave early, after first taking five days of her accrued vacation leave. Samantha did not want to start maternity leave early, preferring to work further into her pregnancy, even though she knew there would be times when she would have to call in sick. Samantha’s employer was supposed to grant her FMLA leave intermittently, which would allow her to stay on the job and use unpaid time off for her doctor visits. She could still use the bulk of her leave after her baby arrived, rather than losing the last few months of pay. Instead, Samantha’s employer forced her out on disability, and the insurance company denied her claim for benefits. Samantha’s employer expected her to return to work within a matter of weeks after giving birth, but she could not afford the only day care program that would accept her infant son. Samantha ultimately lost her job and her primary source of income.

TIME-OUT FOR OUTRAGE!