Best Ohio Pregnancy Discrimination Attorney and Top FMLA Lawyer Answer: Can my employer fire because they don’t want to deal with absences associated with my pregnancy? What can I do if I need to take extra time off because of a pregnancy? Can I space out my FMLA leave after my child is born?
Pee on a stick and then wait to see if there is one line or two. During the few minutes that possible mothers and fathers stare at that stick sitting on the bathroom counter, all the possible changes that are about to come their way flash through their brains… having and holding a baby, boy or girl, new bedroom, possible names and about a million other new baby and pregnancy thoughts. However, very rarely during this time do these nervous possible parents think about how her boss is going to react to have a pregnant worker. Unfortunately, pregnancy discrimination by a boss or manager is a real problem that expectant mothers face every day on their jobs.
At Spitz, The Employee’s Law Firm, our employment lawyers are well versed in struggles that pregnant employees face at work. All too often, employers see pregnant employees as a hindrance and do not treat pregnant employees with the respect that they surely deserve. Employers often immediately consider the time off that pregnant employees will need for doctors’ appointment and the potential for pregnancy complications to cause the employees to miss even more time from work. In fact, our employment discrimination lawyers have talked about issues that pregnant employees face many times on this blog before. (See Can My Job Fire New Mothers?; Can My Boss Discriminate Against Me When I Get Pregnant?; Do I Get Paid On Maternity Leave?; Can I Be Denied A Job For Being Pregnant?; Can I Sue If I Was Fired Because I Got Pregnant? and Can I Be Sent Home From Work Because I Am Pregnant?)
The law is crystal clear on what an employer’s obligations are when an employee discloses that she is pregnant. The Pregnancy Discrimination Act of 1978 (“PDA“) is an amendment to Title VII of the Civil Rights Act of 1964. Pregnancy discrimination is a form of gender discrimination. Under the PDA, employers cannot discriminate on the basis of pregnancy, childbirth, or medical conditions related to pregnancy. These laws make sure that pregnant women workers are treated in the exact same manner as other employees. Specifically, the PDA makes it unlawful for jobs to discrimination based on pregnancy or recent childbirth with regard to hiring, firing, pay, job assignments, promotions, schedules, layoff, training, and benefits, including leave and health insurance, as well as any other term or condition of the job. These pregnancy protection laws also prevent an employer from retaliating against an employee for complaining or opposing pregnancy discrimination. Firing a female worker because she is pregnant or complaining about pregnancy-related discrimination or harassment is wrongful termination.
Now, what does it say when high profile businesspeople turned politicians outwardly comments as to how “inconvenient” pregnant employees are to a company? You may have guessed who made that comment, none other than Republican presumptive-nominee Donald Trump. We usually prefer to keep things here non-political (other than very relevant causes, see Why Are Ohio Law Makers Making It Easier For Your Boss To Discriminate And Sexually Harass You? Our Lawyers Need Your Help To Stop Them!) but certainly if a major party nominee for President of the United States makes comments that can be construed as discriminatory in the employment setting, you can be sure we are listening.
Trump’s comments about pregnant employees came during a 2004 interview in which he was asked about one of his high level employees who became pregnant. During an interview with NBC’ Dateline, Trump stated that pregnancy is “a wonderful thing for the woman, it’s a wonderful thing for the husband, it’s certainly an inconvenience for a business. And whether people want to say that or not, the fact is it is an inconvenience for a person that is running a business.”
The questions about this statement come down to context and how you view the presidential candidates. Having to reasonably accommodate disabled employees or pregnant workers; or provide medical leave to new parents under Family and Medical Leave Act (“FMLA“) may be inconvenient to employers, but they have to do so. Federal and state laws are in place to prevent employers from acting on their beliefs that pregnancy and pregnant workers are an inconvenience to employers. Specifically, the laws as found in Title VII, PDA, and FMLA, as well as in Ohio law make it illegal for an employer to take an adverse employment action, such as firing, demoting or reducing the pay, of a pregnant worker or new mother or father that has taken leave to be with their new child. Obviously, if an employer tells a pregnant employee that taking a leave would not be in the employer’s or that employee’s best interest, our attorneys would view that as direct efforts by an employer to discriminate against pregnant women or interfere with FMLA rights. Certainly, if one of Trump’s pregnant employees was fired shortly have he made this statement 12 years ago, it could be used as evidence to show that the termination was based on an illegal reason.
Trump’s “inconvenience” statement was part of an NBC Dateline story about Carolyn Kepcher, who was at the time the 32 year old Executive Vice President of Trump’s golf properties and appeared on Apprentice as a judge alongside Trump. The word “inconvenienced” was first used by the NBC reporter, who asked Kepcher, “You were worried that he might feel inconvenienced?” It is unclear from the video if the reporter also used that word in asking Trump the question for which he answered, “Well you know, pregnancy is never, um — it’s a wonderful thing for the woman, it’s a wonderful thing for the husband, it’s certainly an inconvenience for a business. And whether people want to say that or not, the fact is it is an inconvenience for a person that is running a business.” Even if an employer is asked that question, most employment defense attorneys would counsel their client to not make a statement like that, even if it means lying or avoiding a direct response. As employee’s attorneys, it sounds bad to even to hear what Tump said.
The interview then goes on, and Kepcher states that she took off three weeks and then intermittent leave thereafter as a matter of her own choice. As a reminder, under the FMLA, both new mothers and father can take up to 12 weeks off following the birth of their child. (See Can Both Parents Take FMLA New Baby Leave?; and What Can I Do If I Was Fired For Taking Approved FMLA Leave?). What you may not know, is that employers can force new mothers and fathers to take all 12 weeks in one block because the FMLA does not provide for intermittent leave after the birth of a child. Thus, Kepcher, as a new mother, was given leave rights beyond that required by the FMLA.
This situation with Kepcher also gives us reason to look at the Key Employee Exemption to the FMLA, which our medical leave lawyers have blogged about before. (See Can I Be Denied FMLA Because I’m A Key Employee?; and Top FMLA Lawyer: Do I Fall In The “Key Employee” Exception?). A “key employee” has been defined by the Department of Labor (“DOL“) as “a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.“ Given that Kepcher was Executive Vice President for a company, it was likely that she was paid in the top 10 percent of all employees in that geographical range. Trump had the opportunity to not allow Kepcher back into her position after taking FMLA leave because she was a key employee. Given the difficult burden of prevailing on asserting the Key Employee Exemption, we don’t have enough facts to say how that would have turned out.
Although famous from his Apprentice television shows, Trump never uttered the words, “You’re fired” to Kepcher after she revealed that she was pregnant or took FMLA leave. In fact, Trump never fired Kepcher, who mutually parted ways so that she could focus on other opportunities. Based on her executive experience with Trump, Kepcher went on to many other executive level jobs.
Was there gender discrimination or pregnancy discrimination? Probably not with regard to Kepcher as no adverse action was taken against her. As discussed above, Trump’s company also probably did not violate the FMLA. But, not violating the law is not the answer of the question of right and wrong – which is more of a political choice question than one for our employment lawyers.
So, we circle back to the fact that your view of this situation will likely depend on the candidate that you support. Trump said some really bad things that do not promote women in the workforce, but he did some good things in handling Kepcher’s pregnancy and subsequent leave, as well as promoting her to an executive level position. What American thinks about all of this will be decided shortly.
If you even get the feeling that your employer or boss finds your pregnancy to be an “inconvenience,” is blocking you from taking FMLA leave, or wrongfully fires you when you announce that you are pregnant, it is of utmost importance that you call an experienced employment attorney who had dealt with cases involving pregnancy discrimination.
If you are facing discrimination or harassment simply because you are pregnant, protect your legal rights — call the right attorney. Under federal and Ohio employment laws, employers cannot harass, fire, wrongfully terminate, discriminate against, demote, or wrongfully discipline a female employee just because she got pregnant. If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights. You will meet with an attorney from Spitz, The Employee’s Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims. Our pregnancy discrimination lawyers and FMLA attorneys know your rights and will fight to protect them.
Disclaimer:
The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “What should I do …”, “I’m being discriminated against …”, or “How do I …”, your best option is to contact an Ohio attorney to obtain advice with respect to pregnancy discrimination questions or any particular employment law issue. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.