Pregnancy Discrimination

Discrimination based on pregnancy is prohibited under both New Hampshire and federal law.  Under New Hampshire law, public employers and private employers with 6 or more employees are prohibited from discriminating against a person on the basis of sex. RSA 354-A:7. The word “sex” includes pregnancy and medical conditions which result from pregnancy.

As a general matter, employers should treat pregnancy and childbirth issues similar to the medical conditions of other applicants and employees.  New Hampshire law states that medical conditions resulting from pregnancy and childbirth are considered temporary disabilities.  An employer subject to RSA 354-A must allow a female employee to take a leave of absence for the period of temporary disability and, upon return to work, have her original job or a comparable position available unless such action is impossible or unreasonable.  For employment issues other than leave, an employer must consider and treat pregnancy, childbirth and related medical conditions as temporary disabilities and treat the employee in the same manner as the temporary disability of any other employee.

New Hampshire law also requires an employer to permit a female employee to take a leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.  There is nothing in New Hampshire law that requires that such leave be paid.  If, however, other employees are paid for leaves for temporary physical disabilities, then the employer must not discriminate and should pay for pregnancy and child birth related leaves in a similar fashion.

Federal law also protects an employee from discrimination on the basis of pregnancy, childbirth and related medical conditions.  Under an amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act (“PDA”) provides that discrimination based on pregnancy, childbirth or related medical conditions is unlawful sex discrimination.  The EEOC and some circuit courts have held that the PDA also protects against discrimination based on abortion.  The PDA requires that an employer not refuse to hire a woman because of her pregnancy or related condition as long as she is able to perform the major functions of her job.   In addition, a woman with pregnancy or childbirth related issues should be treated in the same way as any other applicant or employee.  Under the PDA, pregnancy and maternity leave must be considered a temporary disability and treated similarly to other temporary disabilities.

The PDA also addresses health insurance, generally providing that any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as expenses for other medical conditions.  Abortion, however, is not part of this coverage, unless the life of the mother is endangered or medical complications arise from an abortion.

Employers who are subject to the Family and Medical Leave Act (FMLA) of 1993 must allow an eligible employee who has worked for at least a 12 month period to take up to 12 weeks of leave, unpaid, unless an employee has earned or accrued paid leave, to be used to care for a new child.

Finally, applicants or employees who have impairments or disabilities resulting from pregnancy may have rights under the American with Disabilities Act and/or NH RSA 354-A:7.  Specifically, an applicant or employee with a pregnancy related disability has a right to a reasonable accommodation for known physical or mental limitations, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

About the Author: Jennifer Eber

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