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What Counts As Workplace Discrimination When You're Pregnant? An Expert Explains

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The moment the pregnancy test turns positive, you know your life is forever changed. While you don't know what those changes will look like yet, you can expect things to keep shifting, especially with your job. You may decide to change your work schedule or habits to better accommodate family life, switch careers, or take time off to care for your baby. Unfortunately, changes to your work life aren't always within your control. So what counts as workplace discrimination when you're pregnant? The Pregnancy Discrimination Act is very clear about what employers can't do, but it's still a tricky situation to navigate.

Under federal law, companies with more than 15 employees are not allowed to fire, demote, avoid hiring, or otherwise treat pregnant women differently when it comes to offering or continuing employment. Employers may not harass you because of your pregnancy and they must make accommodations (such as permission to work from home or additional breaks to use the restroom) if you need them to perform your regular job. However, what this looks like in practice may be different than the black-and-white clarity of the law. Plus, pregnancy discrimination can be hard to prove. So how should women handle workplace issues during a pregnancy? Romper talks to Beth Silvers, co-host of the Pantsuit Politics podcast and a former practicing attorney.

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First, I asked Silvers about the tricky decision of whether or not to reveal a pregnancy while interviewing for a new job. "Fortunately, the law leaves this decision where it belongs — in the hands of pregnant women," she says. "Whether to disclose your pregnancy or not is very personal and often depends on the stage of your pregnancy during the interviewing process and your previous experiences (if any) of carrying a child. My advice is to remember that interviews are two-way streets: you’re interviewing the potential employer as much as the potential employer is interviewing you. Thinking about the kind of relationship you want to have with a potential employer can help inform this decision. I think disclosure is the best way to ensure that you’re joining an organization that you actually want to be part of and starting the relationship off strong."

For advice on how to frame a pregnancy announcement during an interview, Silvers says "Since some people will view pregnancy with conscious or unconscious bias, I would disclose the pregnancy in the context of talking about your strengths." For an example, Silvers notes you can say something like, "I like to be transparent in all important decision-making processes, so I want to share with you that I am pregnant and expect to have my baby around December. I’ve been thinking about the best strategy to ensure that I’m successful with your company right out of the gate. I’d love to start working with you next month so that I have a great handle on my new responsibilities and a plan to cover those responsibilities seamlessly while I’m on leave. When I return from leave, I’d like to work toward the following objectives: ____."

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You may not be looking for a new job while you're pregnant, but what if you experience a pregnancy-related condition that requires special accomodations or time off? Silvers explains that "the first thing any woman who needs to adjust during pregnancy should do is carefully read her employer’s handbook to figure out what benefits are available. She needs to figure out what the company offers in terms of paid time off, sick leave, parental leave, short-term disability, and any other benefits."

The good news is that "pregnant women have a number of paths to ensure that employers support their medical needs during the pregnancy. One path is the Family Medical Leave Act (FMLA), which guarantees 12 weeks of time for medical care." However, "there are limits on eligibility for FMLA, and not every employer is required to comply with the Act," Silvers notes. "Another route to consider is the Americans with Disabilities Act. Pregnancy itself is not a 'disability' under the ADA, but many pregnancy-related conditions qualify. If the pregnancy-related condition qualifies under the ADA, the employer is required to reasonably accommodate the condition. Some pregnancy-related conditions might qualify under a company’s short-term disability policy. Women with enough paid time off available might consider using that time, especially if a company doesn’t have a short-term disability policy."

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Where you live also affects your rights and protections during pregnancy. Silvers says that "pregnant women should always check out the laws of their states. Even if a company does not have to comply with the federal FMLA, some states have laws requiring employers to at least provide unpaid leave. If your employer is too small to comply with FMLA and doesn’t provide any parental leave, consider what you might be able to negotiate with the employer. The cost of parental leave for a small employer might be high, but the cost of turnover because the employer was unwilling to work with a great employee could be even higher."

Finally, I ask Silvers what workplace harrassment of pregnant women might look like and what to do if it happens to you. She explains that a pregnant woman "might be denied opportunities, touched inappropriately, and subjected to inappropriate discussion of her body. As soon as she experiences conduct that concerns her, I recommend consulting with a lawyer. She should document these instances every time they happen in a file that she keeps at home, and she should tell two to three trusted friends or colleagues about these experiences as they happen."

Silvers notes that a pregnant woman should also closely review her company's policies on workplace harassment. "If she’s required to report a concern to HR, she should follow that process (again, I strongly recommend consulting with an attorney before having the conversation with HR). It’s very difficult to prove that you weren’t hired for an unlawful reason in any scenario without very blatant evidence, and gender-based harassment claims remain difficult to prove. I hope that the national conversation taking place about sexual harassment in the workplace will inure to the benefit of pregnant women in the long run."

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