Sex Discrimination is Illegal and It’s Happening Every Day to Pregnant Employees

By Jack Tuckner

Over the last couple of years, this women’s rights in the workplace law firm is seeing increasing numbers of cases where companies have taken to outright lying to their pregnant female employees regarding the right to take maternity leave. As the federal Family and Medical Leave Act of 1993 (“FMLA”) requires that an employee work for 12 months for her company before she is eligible to take maternity leave, some employers simply advise pregnant women due to give birth before the completion of their first full year of employment, that they are, unfortunately, not qualified to take an FMLA leave, so they must “resign”.

These employers are using the FMLA — the legislation specifically enacted to protect working women from termination as a result of pregnancy — to fool them into believing that if they don’t qualify for the FMLA, they have no right to continued employment with the company once their baby is born as they do not qualify for extended “family leave” under the FMLA. These women are told they have no federally protected right to take time off for their maternity leave. “Google it,” one HR Director told our client, “you’ll see it plain as day.” And it is true—an employee must have one year of full time employment under her belt before she’s eligible to take an FMLA leave–write to your congressman, she was advised.

The trouble with this trend is that it’s illegal, as these companies are intentionally misrepresenting the state of the law, as it is true that the FMLA has a length of employment prerequisite for the taking of leave for the “birth or adoption” of a child,” the federal Pregnancy Discrimination Act (“PDA”) does not, nor do every other state or city’s anti-discrimination laws have a length of employment prerequisite. If you begin work on March 1 and you tell your employer you’re pregnant on March 2, with the baby due to be born on March 30, they cannot deny you a reasonable period of time to give birth to your baby, recover and get back to work, and reasonable is generally interpreted as a minimum of 6 weeks for a vaginal delivery and 8 weeks for a c-section.

The PDA is part of the Civil Rights Act of 1964, prohibiting an employer from firing, refusing to hire or denying a promotion to a worker on the basis of sex and pregnancy. Regardless of FMLA leave eligibility, a pregnant female employee will be entitled to take a reasonable maternity leave under federal law, as long as her company employs at least 15 people, although many state laws require as few as 4 employees for full pregnancy leave coverage to apply.

The Single Most Important Tip for Employees Experiencing Discrimination—DON’T QUIT!

Quitting your job when you feel discriminated against and hopeless, is like “throwing out the baby with the bath water,” and is such a self-defeating act that will substantially limit your chances to successfully prosecute or settle your claim later, as your “damages” will be severely limited by your resignation. Also, if you quit, you will likely not be entitled to collect unemployment insurance benefits, as your employer will say that you have “abandoned” your job.

The Second Most Important Tip for Employees Experiencing Discrimination–File a Formal Written Complaint

Even if you think it will be useless, file a formal complaint notifying your employer of your belief that you are being discriminated against on the basis of your sex and pregnancy. You “actually notify” your employer so that the company has the opportunity to “investigate” your complaint and to correct whatever gender-based hostility or injustice may be occurring as described by your complaint letter, which should be sent in a provable fashion such as by certified mail, or by FedEx, so that you can later demonstrate that your complaint was received by your company. We can’t emphasize enough this formal complaint be put in writing. Having a conversation does not count as ‘formal notification’.

If your employer does not properly and swiftly investigate your complaint of discriminatory treatment and launch “corrective action,” or, if they treat you even worse because of the complaint, such as by threatening, demoting, or firing you shortly after you file your complaint, you will then be able to credibly argue that the company “retaliated” against you for your provable civil rights complaint, which is illegal, too, and quite often, retaliation complaints are far stronger than the original, underlying complaint for discriminatory treatment.

For example, you may never be able to “prove” that Joe is sexually harassing you at work, as there may be no witnesses to his hitting on you, and when he is confronted by your company’s HR Department, he will deny everything that you say, but if you complain in writing about his unwelcome sexual advances and Joe continues his predatory ways, or the company blames you for the problem, you can then demonstrate that the hostility and/or “adverse employment actions” occurred on the heels of the complaint and because of the complaint that you just filed. Assuming that your company is not inclined to agree with you regarding your allegations of discriminatory and retaliatory treatment, if the differences between you and your employer are becoming so irreconcilable that you realize they will find a way to fire you before too long, this paper trail of “protected activity” is often sufficient to pave the way for a negotiated severance package that will allow you to depart the company with dignity and your head held high.

If you are experiencing hostility or differential treatment at work, contact a qualified Plaintiff’s employment lawyer for individualized advice and strategic planning before you quit or are placed on probation, demoted or fired.

Jack Tuckner, Esq. is a leading women’s rights attorney and a founding partner of Tuckner, Sipser, Weinstock & Sipser, LLP. His New York City law firm, a Plaintiff’s employment law practice, has grown into one of the most respected and active women’s rights legal practices in the nation. Jack Tuckner was chosen as a 2011 “Super Lawyer” by his peers and independent research signifying his ranking in the top 5% of all NY Labor & Employment attorneys. Jack Tuckner is committed to the ongoing struggle for workplace equality and his firm provides vital advocacy for those who have been undermined and marginalized by unjust employment policies. The firm specializes in the representation of women who have been denied their rights and/or victimized in the workplace as a result of their status as women. Jack Tuckner has served as an advocate and commentator for women’s discrimination issues across the media spectrum, including on NBC’s Nightly News with Brian Williams, CW11, NY1 News, 1010Wins, FOX and National Public Radio, as well as The New York Times, Wall Street Journal online, New York Daily News, and at numerous civic and grass roots community meetings and seminars in the tri-state area. He has also spoken regarding Gender Pay Disparity at the American Association of University Women, and he is a frequent public speaker regarding Domestic Violence and Working Women, at an array of public and private forums.