In her Lawyer Monthly article, Sylvia Stanciu explained that pregnant women are at greater risk of severe complications from COVID-19 than most people. The Centers for Disease Control and Prevention have found that pregnant women face increased chances of suffering serious illness or even death as a result of COVID-19.
During COVID-19, unemployment is soaring. The effect of the pandemic on business decisions may mean that people who belong to certain protected classes have an increased need to assert claims of illegal discrimination, retaliation, or wrongful termination. Pregnancy is a protected class under federal, state, and local laws in New York City. The pandemic raises additional concerns for pregnant women. Recently, one of our New York City pregnancy discrimination lawyers, Silvia Stanciu, wrote an article about pregnancy discrimination for Lawyer Monthly.
Sometimes pregnant women are targeted during the pandemic by employers struggling to stay afloat and reduce costs. Pregnancy discrimination can take varying forms. Non-essential businesses have gone through months of required shutdowns and responded either by closing completely or by cutting salary and staff. As a pregnant worker who works for a non-essential employer, you may have been terminated or had your job eliminated. Some employers do not adequately appreciate the risks of COVID-19 and may not consider providing you with a reasonable accommodation. Even if your employer is not struggling, your manager may have held a stereotype about pregnant women who request an accommodation to work remotely and treated you adversely as a result of your request for an accommodation.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 is the federal law that protects pregnant employees, provided that their employer has at least 15 employees. Title VII, as amended by the Pregnancy Discrimination Act, provides that a pregnant employee can recover damages for sex discrimination if she is treated more adversely than a non-pregnant employee who is similarly situated.
The Americans with Disabilities Act
In addition to protection under Title VII, you are protected by the Americans with Disabilities Act (ADA) if you are temporarily disabled or have a pregnancy-related medical condition. In one case decided before the pandemic, the Supreme Court held that an employer’s facially neutral accommodation policy could be pregnancy discrimination if the accommodation notably burdens pregnant employees, and the employer’s rationale for the policy is not strong enough. Case law such as this case provides precedent that should guide courts and employers on decisions to make during COVID-19, although jurisprudence specifically related to COVID-19 remains largely uncharted territory.
Your employer cannot forbid teleworking during COVID-19 if it previously allowed other disabled employees to be involved in telework before the pandemic. A bonus or raise should not be withheld only because you needed and took disability leave.
Assuming that you are eligible under legal requirements, your employer may need to abide by the federal Family and Medical Leave Act (FMLA). The FMLA requires covered employers to provide qualified pregnant employees with up to 12 weeks of protected leave regarding a pregnancy, pregnancy-related disability, or childbirth.
To be eligible, you need to work for a covered employer with 50 or more employees for at least 20 consecutive workweeks. You must have worked for 1,250 hours in the 12 months before your leave started. You must have worked in a location with at least 50 employees within 75 miles. You must have worked for your covered employer for a minimum of 12 months.
During their FMLA leave, employees must be protected in their jobs and continue receiving any benefits, but they are not entitled to compensation. To recover damages for FMLA discrimination, you will need to demonstrate that your employer interfered with your FMLA leave or wrongfully denied it, took an adverse action against you for complaining about FMLA interference, or otherwise took an adverse step against you because you used your FMLA rights. If your employer does not return you to the same or a substantially similar job as before you took maternity leave, you may also have an FMLA claim. However, as Ms. Stanciu explained in the article, our firm anticipates that many employers will claim that they do not have enough money to reinstate employees because of the pandemic.
Additionally, the Department of Labor has enacted the Families First Coronavirus Response Act (FFCRA), which gives further paid sick leave or greater family or medical leave to employees who either suffered from COVID-19 symptoms but were not yet diagnosed or quarantined, or could not work due to caring for someone else in quarantine or a child whose day care or school is closed because of COVID-19.
Retain a Seasoned New York City Attorney
You may face a greater challenge in establishing a pregnancy discrimination case during COVID-19. The employment litigators at Phillips & Associates can represent you and tackle these challenges on your behalf. Call us at (866) 229-9441 or complete our online form.