July 14th, 2009 at 08:54pm
Under Civil Rights Law
As a starting point one thing should be made very clear: You cannot be discriminated against for being pregnant! You cannot be fired. You cannot be refused employment. You cannot be demoted. You cannot be docked pay.
Unfortunately, it seems to be a fairly common occurrence that once a woman becomes pregnant her formerly nice and reasonable employer treats her differently. Treating a woman differently – unless it’s to say how awesome it is that she’s pregnant – is likely to be illegal.
In 1978, Congress enacted the Pregnancy Discrimination Act (PDA) as an amendment to Title VII of the Civil Rights Act of 1964. In doing so Congress made clear that women were not to be punished for becoming mothers.
The PDA prohibits discrimination in areas and ways, including*:
* Hiring/Firing: An employer cannot refuse to hire a woman because of her pregnancy or a related condition and cannot fire a woman for those things either. * Pregnancy & Maternity Leave: An employer: cannot single out pregnant women for special procedures to determine her ability to work; must hold open the job while she is on pregnancy leave; must treat her the same as any temporarily disabled worker if she is unable to perform her duties for a short time; must allow her to work if she is able. * Health Insurance: Employer provided health insurance must cover pregnancy and pregnancy-related conditions on the same basis as other medical issues. * Fringe Benefits: Benefits cannot be given only to married couples. Benefits cannot be provided differently to pregnant and non-pregnant employees. Seniority, vacation, pay, temporary disability benefits, must all be the same as all other employees.
*This list is not all inclusive. See an attorney if you feel as if you have, or are, suffering some sort of mistreatment.
Additionally, the law prevents retaliation for complaining about discrimination either to your employer or to the EEOC. States and local governments may also have laws that are similar to the PDA. For example, in Illinois the city of Chicago, Cook County, and the state of Illinois all have laws intended to prevent or remedy pregnancy discrimination. There are also administrative forums at each of these levels devoted to hearing claims of discrimination and providing remedies, including monetary damages.
Women who suffer, or believe that they may have suffered, discrimination need to file a charge of discrimination with the EEOC within 180 days of the date of the last act of discrimination. The various local and state agencies may have different filing times but many mirror the 180 day filing requirement set by the federal government as well as the types of discrimination considered illegal. Missing the filing date may eliminate the women’s right to sue so careful attention must be paid to the date, or dates, the act of discrimination took place.
As always, it’s best to consult a local attorney about a claim of discrimination but these forums will allow a woman to file her claim without a lawyer and some will investigate the claims using trained personnel.
Justin G. Randolph has been practicing law in Chicago since 2001.
NOTE: No attorney/client relationship is formed through the submission or viewing of this article. This
article is not intended as a substitute for legal advice from a licensed attorney. The facts of every case
are different and individualized advice should be sought from an attorney before proceeding with any
case.
Pregnancy
Discrimination Attorney
July 12th, 2009 at 03:01am
Under Uncategorized
HAWAII EMPLOYMENT LAW BASICS: PREGNANCY DISCRIMINATION LAW UNDER FEDERAL AND HAWAII LAW
INTRODUCTION:
Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide. The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.
Accordingly, it is clear that employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.
FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:
Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin. Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.
Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions. Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.
Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances. Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA. Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA. Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.
If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.
In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer. Specifically, the caps are set by statute as follows:
Number of Employees Cap
015-100 employees $ 050,000
101-200 employees $ 100,000
201-500 employees $ 200,000
500 plus employees $ 300,000
Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.” Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.”
There are significant differences between PDA and Hawaii law. First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures.
Second, while it is clear under federal law that individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law, there is virtually uniform authority amongst state court judges that no such protection is afforded under state law. Thus, supervisors along with the employer are commonly named as individuals in lawsuits filed by plaintiffs in Hawaii state court pursuant to HRS Chapter 378.
Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more. Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”
Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.” A “reasonable period of time” is that time determined by the employee’s health care provider.
Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges. Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.
Finally, and in many cases most significantly, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.
CONCLUSION:
PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth. Under federal law employers must remember to treat pregnant employees the same as similarly situated employees. However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers should seek counsel if they have questions regarding the law.
Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com
Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.
Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission.
Mr. Amaguin litigates a wide range of civil cases involving common law and statutory claims. He litigates claims involving torts, right to privacy, sexual and other forms of harassment, wrongful termination, discrimination and retaliation. He regularly provides counsel on Title VII, the Hawaii Employment Practices Act, FLSA, HIPAA, FMLA, ADA, ADEA, COBRA, non-competition agreements, contracts, workplace investigations, civil rights, whistleblower, drug-testing, and all other statutes that apply to Hawaii employers.