Managing Your Maternity Leave

State laws; discrimination

State Laws for Maternity Leave
In 1987, the U.S. Supreme Court ruled that every state has the right to enact antidiscrimination laws to protect pregnant employees. About half the states have enacted laws since then requiring all but the smallest companies to give unpaid leave to pregnant workers. The standard paid maternity/disability leave, which must be certified by a physician, is six to eight weeks plus any accrued vacation time, with the average leave being three months. Sometimes, it's extended for a Caesarean birth.

In many cases, firms must promise the same job, or a comparable one, after the leave has ended. According to federal law, any greater right allowed by state law prevails. Contact your state labor board or employment office for more information.

If your employer doesn't have a disability plan—often the case with a small business—you may have to accept an unpaid leave. In that case, check with your local employment office to find out if you're qualified for unemployment benefits or temporary state disability benefits. Also, a few very progressive companies offer parental leave, which is usually in addition to maternity/disability leave and is available to both men and women.

Paternity Leave
Even though the FMLA provides new parents—including fathers and adoptive parents—with twelve weeks of unpaid leave to care for a newborn or adopted child, the myth is still around that men who take paternity leave are not serious about their jobs. Also, companies usually don't encourage new fathers to take time off for bonding with a new child.

While 50 percent of all fathers questioned in a national survey said they would spend more time with their children if their jobs permitted, they're more likely to take vacation time or use sick days when their babies are born. That's because they are afraid their managers or coworkers will disapprove. Only 15 percent of men eligible under FMLA make a formal request for paternity leave.

Given a choice between paternity leave or more flexible work arrangements such as telecommuting, most fathers voted for the latter. That's why an increasing number of companies offer benefits such as flexible work arrangements, parenting education classes, and on-site child care.

What to Do When You Suspect Bias Based on Your Pregnancy
Discrimination can occur in many different forms. Under the aforementioned laws, the following subtle and not-so-subtle types of pregnancy and sex discrimination are also prohibited:

Hiring Practices

  • An employer refused to hire you because of your pregnancy-related condition even though you were able to perform the major functions of the job.
  • An employer refused to hire you because of his or her prejudices against pregnant workers or the prejudices of coworkers, clients, or customers.
  • An employer asked you about future plans that you may have for pregnancy during an interview or after you're hired.
Job Duties
  • Certain job responsibilities you were able to perform were assigned to another coworker.
  • You were not provided modified tasks or alternative assignments when you were temporarily unable to perform your job while other temporarily disabled employees at your workplace were.
  • Your employer singled out pregnancy-related conditions for special procedures to determine your ability to work. (If, however, your employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, your employer may require you to submit such statements.)
  • Your well-earned raise had been denied.
  • You were given a poor job performance evaluation for no good reason.
  • Your employer made sexist comments about your crazy hormones or expanding belly or made unwelcome sexual advances or requests.
Fringe Benefits
  • Pregnancy-related benefits are limited because you are unmarried.
  • Benefits are provided for other medical conditions, but not for pregnancy-related conditions.
  • Benefits are provided to workers on leave, but not for those on leave for pregnancy-related conditions.
  • You are not treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
If you feel you are treated badly on the job because you are pregnant, there are several steps you can take to remedy the situation:
  • Stand up for yourself—In a dignified way, make it clear to your boss that punishment for having a child is against the law.
  • Keep a written record—Document any negative comments or insulting behavior regarding your pregnancy. Keep detailed notes on everything, plus copies of all relevant interoffice memos. Get a copy of your personnel file, if possible, and photocopy any past performance reviews. Find out if anyone else in your workplace has experienced similar problems.
  • Seek relief higher up—Go through whatever channels are necessary to stop the discrimination: your union, your human resources, the personnel department, or your boss's supervisor. Employers are obligated by law to take steps necessary to prevent discrimination from occurring. These include clearly communicating to employees that discrimination or sexual harassment will not be tolerated and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
  • Stay abreast of current laws—A coalition of civil rights groups is lobbying for new legislation to strengthen the civil rights laws. To get more information about what you're legally entitled to, contact:
    • 9to5, National Association of Working Women
      (800) 522-0925
    • National Partnership for Women and Families
      (202) 986-2600
    • U.S. Department of Labor
      (800) 827-5335
    • The Employment Law Guide
      (866) 4USADOL

  • File a complaint—If nothing else works, and you're prepared to spend at least eighteen months fighting your case and possibly suffering career repercussions, file a complaint with one of the following:
    • American Civil Liberties Union
    • Commission on Human Rights
    • Department of Fair Employment and Housing
    • The Equal Employment Opportunity Commission
    • National Woman's Law Center
    • Women's Legal Defense Fund
    • Women's Rights Agency of the State
    • Check into the many websites for interviewing about dealing with the "illegal question"

If it is decided that you are indeed being discriminated against, you would be entitled to a remedy that would place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, and other remuneration. Some state and local laws do allow damages to compensate you for future pecuniary losses, mental anguish, and inconvenience. Punitive damages may be available, as well, if your employer acted with malice or reckless indifference. You may also be entitled to attorney's fees.

More on: Work

excerpted from:

© 2005 by Marla Schram Schwartz. Excerpted from The Working Woman's Baby Planner with permission of its publisher, Sourcebooks, Inc.

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