New York Employment Lawyer Blog

It may seem like there is a law for everything. Sadly, a recent pregnancy case right here in New York shows how a gap in employment and disability laws leads to many pregnant woman getting fired from their jobs, legally. Aptly titled Pregnant and Pushed Out of a Job, The New York Times reports on a seven month pregnant woman who was recently fired from her position as a cashier because she requested extra bathroom breaks.

Where do I begin? I recently wrote about pregnancy discrimination and the state and federal coverage enacted to ensure that females are not discriminated against on account of their pregnancy. This coverage spans the pregnancy and is also intended to ensure that new mothers get their old jobs back. The problem is that in the case written about in the New York Time the firing had nothing to do with her pregnancy leave or employment status. Rather, the case boiled down to an accommodation request – something the state covers (when reasonable to the employer) for individuals with a documented disability. Pregnancy, however is not considered a disability.

Because of this rather gaping loophole, pregnant workers in need of certain accommodations during and shortly after the pregnancy are not covered under pregnancy discrimination laws are not covered under disability accommodations. And then they are fired without any recourse.

So where should the laws come from in order to allow for these necessary accommodations? It really doesn’t matter as long as they exist. While states are beginning to recognize the importance of including this type of accommodation in their laws and seven (so far) have a demand for some type of accommodation there needs to be a national recognition of the problem. Whether encompassed under the general pregnancy discrimination umbrella, within disability laws or created via a whole new set of public health and safety laws, New York and every other state needs to recognize this unfair employment issue taking place. I would love to hear your thoughts on how best to handle this issue, comment on my Facebook page!

Pregnancy discrimination in New York is illegal, but it happens frequently. The EEOC recently reported that pregnancy discrimination is one of the fastest growing categories of claims, outpacing sexual harassment and sex discrimination claims.

It is nice to know that New York has laws in place to protect your pregnancy when it comes to your work life. You should enjoy your pregnancy…the excitement surrounding the growing belly, picking out baby names and preparing for family. But you should know the basics of pregnancy discrimination so you can identify it just in case it happens.

Let’s start by noting two things. Pregnancy discrimination is illegal and you have rights if any type of discrimination takes place. Here’s a look at three scenarios that amount to pregnancy discrimination in New York:

1. You get fired: This seems obvious but simply put, it is illegal for an employer to fire an employee after finding out she is pregnant. Employees should be able to communicate their physical situation without fear of repercussion. In this scenario, an employer’s response should be more along the lines of, “when is the shower” rather than “pack up your desk.”
2. You get replaced while on maternity leave: Maternity leave is a legal right. So is the ability to actually return to work.
3. You are denied certain benefits because you aren’t married: Whatever an employer’s individual beliefs about pregnancy may be, the legal reality is that employers must treat all pregnant women, whether single or married the same. Unmarried pregnant woman have exactly the same rights and protections against pregnancy discrimination and the presence of a diamond of the left ring finger is irrelevant to this evaluation.

The sad reality of many workplace situations is that pregnancy discrimination occurs and can take various forms, both obvious and subtle. Not to be confused with special treatment, workplace rights surrounding pregnancy are just that—a right. Knowing the situations to look out for is the first step in ensuring that this does not happen to you. If anything does happen, feel free to give us a call.

Photographs of pregnant women are disappearing from Facebook.  See the story on Jezebel "Why is Facebook Deleting Photos of Pregnant Women?"

A Facebook employee claims "We don't have a special standard for pregnant women."  It just seems that way.  Is Facebook removing these pictures because they think it makes people uncomfortable? They better think again.

There is a sustained increase in the number of pregnancy discrimination law suits.  Women are not sitting back anymore - they are standing up for their rights.  A Wall Street Journal article recognized a changing demographic and new activism among mothers -"More Women Pursue Claims of Pregnancy Discrimination."

Is Facebook's unfriending campaign against pregnant mothers going to provoke online activism?  It seems to have started already.

Pregnancy discrimination in New York is rampant as well.  Do you think that there is a bias against pregnancy women?  What accounts for the rise in pregnancy discrimination cases and could it be linked to Facebook's new practice of deleting photos of pregnant women?

We don't know what Facebook is doing.  But we do know how to help women who have been discriminated against at work due to their pregnancy.   Call us or use the form on the left to contact us and we can help you with your pregnancy discrimination matter.

Being pregnant is tough enough, getting fired while pregnant or during maternity leave makes it tougher. But Zibute Scherl, a boat captain who was fired while pregnant, refused to abandon ship. She sued her employer for pregnancy discrimination and won $85,000 in emotional distress, repayment of all lost wages and her employer was fined an additional $25,000. The decision was issued on July 15, 2009.

Zibute Scherl was a Second Captain on a yacht. After she became pregnant, her boss expressed disappointment that she was pregnant, had concerns about "mothers working in the boating business," and worried about potential liablity. He fired Ms. Scherl soon after she announced her pregnancy.

The Company argued that Ms. Scherl's pregnancy was not a factor in her termination. Instead the Company claimed that she was simply part of a company wide reduction in force. But the Court did not believe this argument because when the company was in need of new employees, it did not ask Ms. Scherl to return and instead hired other less experienced people.

This is a great result for pregnant employees. At our firm, we find that a lot of pregnant woman are caught up in reductions in force. The companies always argue that pregnancy was not a factor and often are unwilling to settle. But this case shows that a close look at the facts can get past the "reduction in force" defense. Click here to see a short video of a typical pregnancy discrimination case.

A few days ago, the New York Times listed a sampling of 2007’s newly coined buzzwords – words “that endured long enough to find a place in the national conversation.” Maternal Profiling was one of these. The New York Times defined it as:

“Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.” If you feel that you have been discriminated based on the above, you should contact an attorney.

This new phrase is sure to become more commonly used in the years to come as more and more women feel discriminated against. Hopefully, there will be adequate legislation enacted to address this problem.

The workplace impacts of maternal profiling are jaw dropping, especially given that three-quarters of American mothers are now in the workforce and 82% of women become mothers by the time they are 44 years old. In fact, the American Journal of Sociology recently reported a study which found that mothers are 79% less likely to be hired than non-mothers with equal resumes and job experiences.

Mothers also face steep wage hits and unequal wages for equal work. One study found that women without children make 90 cents to a man’s dollar, but women with children make only 73 cents to a man’s dollar. And single mothers make about 60 cents to a man’s dollar.

Even in well-paid positions, mothers face discrimination. A Cornell University study found that mothers were offered $11,000 less in starting pay than non-mothers with the same resumes and job experience, while fathers were offered $6,000 more in starting pay.

That same study also found that mothers were held to harsher work standards than non-mothers and were taken off the management track for reasons that were not justifiable when compared to the behavior of other workers.

The United States lags far behind other countries when it comes to supporting families. For instance, Harvard researchers studied over 170 countries and found that the United States was one of only four nations without some form of national paid leave for new mothers. (The others were Liberia, Papua New Guinea and Swaziland.)

Unfortunately, so far only one state in our nation, California, provides for paid parental leave though Washington State will follow soon. The lack of paid family leave often causes parents to either quit much-needed jobs to care for their newborn (and thus lose their job-linked healthcare coverage), or else the financial hardship of living without paid leave drives women back to work earlier than they would have chosen. Yet when parents return to work, they face a chaotic and costly childcare system where the cost of care for two children can easily be upwards of $20,000 per year.

Pregnancy discrimination is on the rise. Some employers will actually fire a woman while she is pregnant. The stress of pregnancy alone is a lot, but to get fired at the same time must be almost unbearable. At our law firm, we have had a few of these cases. One woman was actually fired while in the hospital giving birth. But most woman simply do not have the will to sue their employer at this time. They want to focus on being a mom and the joy of having a child. So sadly many employers get away with it. We settled the case with the mother who was fired while giving birth. In my view, the amount was much too low and I know we could have increased the amount by pushing towards trial, but the victim just wanted to put it behind her and who can blame her.

According to the Equal Employment Opportunity Commission ("EEOC") a Philadelphia-based maternity clothes retailer will pay $375,000 to settle a pregnancy discrimination and retaliation lawsuit brought by the EEOC, alleging that Mothers Work, Inc., doing business as Motherhood Maternity, refused to hire qualified female applicants because they were pregnant.

According to the EEOC’s lawsuit (Case No. 3:05-CV-990-J-32TEM in U.S. District Court for the Middle District of Florida, Jacksonville Division), LaShonda Burns, a former assistant manager, complained about Motherhood’s policy and practice of discrimination against pregnant applicants. The EEOC said Motherhood illegally disciplined and ultimately fired Burns because it believed she was pregnant and in retaliation for her complaints.

Such alleged conduct violates the Pregnancy Discrimination Act. The EEOC filed suit after first attempting to reach a voluntary settlement, and Burns also took part in the suit with a private attorney.

The three-year consent decree settling the suit requires Motherhood to pay Ms. Burns $135,000 in compensatory and punitive damages; $50,000 in back pay; $130,000 for Burns’s private attorney’s fees and costs; and $20,000 in compensatory and punitive damages to each of three women who were denied employment opportunities because they were pregnant – Lakevia Rollins, Aimee Tart and Jackie Ciardiello. Motherhood must also adopt and distribute an anti-discrimination policy that specifically prohibits denying women employment opportunities because of their pregnancy; train all of its Florida current and future employees on the new policy and federal employment discrimination laws; post a notice of resolution of the lawsuit; and report to EEOC twice annually regarding pregnancy discrimination complaints.

Please see http://www.eeoc.gov/press/1-8-07.html for the full story.