| As an attorney defending people from employment | | | | health conditions, provided the employee has worked |
| discrimination since 1991, the worst discrimination is | | | | for at least a year and worked at least 1250 hours |
| against a pregnant employee. Harassing or terminating | | | | and the company has more than 50 employees within |
| a pregnant woman can be incredibly heinous. Firing a | | | | a 75 mile radius. The leave can be taken intermittently |
| woman who is pregnant leaves her with no income, no | | | | (an hour or hours at a time) but the limitation of 12 |
| hope to find a new job and no health insurance. All that | | | | weeks is absolute. If an employee takes more than 12 |
| when she most needs to keep her job, her income | | | | weeks of unpaid FMLA leave, then they can be fired. |
| and medical insurance to take care of hospital and | | | | Otherwise an employer must return an employee to |
| other bills incurred in an expanding family. | | | | the same or similar position after returning from FMLA. |
| Very few employers will hire a woman who is | | | | Unfortunately the leave is unpaid and few people can |
| obviously pregnant. There is going to be time off | | | | afford a long term leave without income. A father is |
| needed for regular doctor visits. The potential for | | | | also eligible for FMLA leave to care for his wife and |
| complications requiring extended time off. The near | | | | baby. |
| certainty that delivery of the baby will require weeks | | | | There is an issue as to whether pregnant women are |
| of leave. Combined with the possibility that after | | | | protected by the Americans with Disabilities Act |
| nurturing her infant the mother will not want to return to | | | | (ADA) which was amended in September 2008 so |
| the job, makes getting a new job when you are | | | | that more people are protected from discrimination |
| pregnant almost impossible. | | | | because of their disabilities. The Amendments to the |
| Federal, state and local laws do provide some | | | | ADA are effective as of January 1, 2009. It reverses |
| protection from discrimination because of pregnancy. In | | | | several U.S. Supreme Court decisions that narrowed |
| 1978 Congress amended Title VII to include the | | | | the scope of the ADA so that it was almost |
| Pregnancy Discrimination Act that prohibits | | | | impossible to prove that you were qualified for a job |
| discrimination because of pregnancy, childbirth, or | | | | and disabled. Protection under the ADA is now |
| related medical conditions. Employers cannot treat | | | | expanded to include almost any substantial restriction |
| pregnant women differently, even if they are doing it to | | | | of any bodily function or system and for medical |
| try to protect the woman. A classic example was a | | | | records which show an impairment of any major life |
| case brought by the EEOC against the Rustic Inn | | | | function. However, because pregnancy is a |
| Crabhouse, near the Ft. Lauderdale Hollywood Airport, | | | | temporary condition, it has been found to be outside |
| in which the restaurant admitted that it had re-assigned | | | | the protection of the ADA. Whether that continues to |
| a waitress to the cash register because the owners | | | | be the analysis of the courts as they begin to interpret |
| considered carrying the large trays of crabs and | | | | the ADA as amended, is yet to be seen. |
| walking around while customers were hammering | | | | The real importance of the lack of protection under |
| crabs, dangerous for the woman and fetus. In 2000 | | | | the ADA is that employers do not have to |
| the Federal 11th Circuit Court of Appeals found the | | | | accommodate pregnant employees. Pregnant women |
| restaurant’s policy regarding reassigning pregnant | | | | often need accommodations. Frequent bathroom |
| waitresses was direct evidence of pregnancy | | | | breaks, inability to stand for long periods of time, help in |
| discrimination. Of course the restaurant admitted this | | | | lifting heavy objects, juice breaks, scheduling doctor |
| was their policy, which rarely happens. | | | | visits, limits on environmental stressors or contaminants |
| Florida law is less clear on pregnancy discrimination | | | | do not have to provided by the employer. The |
| because it is not specifically mentioned as a protected | | | | employer can treat a pregnant employee like any |
| category under the Florida Civil Rights Act, Fla. Stat. | | | | other employee without any special treatment or |
| §760. Most courts have agreed that Florida law | | | | reasonable accommodation. |
| provides protection based on pregnancy, but there are | | | | However, there is another potential cause of action for |
| some lawyers who will disagree in defending | | | | negligent still birth if you can prove the employer was |
| companies that terminate pregnant women. The | | | | responsible for a miscarriage. This can happen when |
| leading case in Florida is O’Loughlin v. Pinchback, | | | | an employer intentionally harasses a pregnant |
| 579 So. 2nd 778 (Fla. 1st DCA 1991) finding that §760 | | | | employee, forcing them to stand during a long shift, |
| protects women from discrimination because of | | | | refusing to assist them with moving heavy objects or |
| pregnancy. The theory is that gender discrimination as | | | | ordering them to perform duties which caused the loss |
| protected by state law has the same construction as | | | | of a fetus. Damages in those cases run into the millions |
| gender discrimination laws in Title VII, so they will be | | | | of dollars, even though there is no ADA protection. |
| interpreted the same way and provide pregnancy | | | | If you or someone you know is suffering discrimination |
| protection. See Kelly v. KD Construction of Florida, 866 | | | | on the job because of their pregnancy, get legal |
| F.Supp. 1406, 1411 (S.D. Fla. 1994). | | | | protection immediately. Having a lawyer involved in |
| The Federal Family and Medical Leave Act (FMLA) | | | | protecting your rights could mean the difference |
| also provides for limited leave to accommodate | | | | between having a healthy baby that you can afford, or |
| pregnancy and serious medical conditions related to | | | | losing a baby because the employer violated your |
| pregnancy. The FMLA provides for up to 12 weeks | | | | rights. |
| of unpaid leave within a 12 month period for serious | | | | |