Workplace Discrimination After a Miscarriage

Category: Employment Discrimination

More Info: Employment Litigation

  • Recovering from a miscarriage can take a few weeks to a month or more.
  • Workplace discrimination can push women back to work too soon or cause job loss.
  • Experts say legal remedies fall short and place undue burden on employees who feel they’ve been discriminated against.

About 10 to 15 percent of known pregnancies end in miscarriage.

During a miscarriage, physical symptoms can range from mild to severe.

Recovery time varies from person to person, depending on factors such as weeks of pregnancy, underlying conditions, and whether there are complications.

The healing process can take anywhere from a few weeks to a month or more.

Recovery can be a lot more difficult if you can’t take time off work for fear of losing your job.

Rachel Makkar was fired from her job 10 days after having a miscarriage, according to Kaiser Health News. Shocked, she filed a complaint with the Colorado Civil Rights Division and intends to a file a lawsuit in Colorado state court.

Now, she’s having a difficult time with the fallout.

And she’s not alone, but understanding your rights and proving discrimination in pregnancy-related conditions can be challenging.

Scott Mirsky, an employment attorney and a partner at Paley Rothman in Bethesda, Maryland, told Healthline that under the Pregnancy Discrimination Act, an employee who has a miscarriage has to be treated the same way as all other employees.

“In other words, the employer cannot make job-related decisions based on the fact that an employee had a miscarriage,” said Mirsky.

The Pregnancy Discrimination Act applies to employers with 15 or more employees.

The problem is that proving discrimination under the Pregnancy Discrimination Act can be burdensome. According to legal nonprofit A Better Balance, courts favor the employer in two-thirds of cases.

The physical and mental health impact

A miscarriage is the loss of a baby before the 20th week of pregnancy, according to the Centers for Disease Control and Prevention.

After that, it’s considered a stillbirth.

Dr. Kecia Gaither is a double board-certified physician in OB-GYN and maternal-fetal medicine. She’s also director of perinatal services at NYC Health + Hospitals/Lincoln and associate professor of clinical obstetrics and gynecology at Weill Cornell Medicine in New York.

Gaither told Healthline that potential physical symptoms may include bleeding, cramping, and breast tenderness. Emotional symptoms can include anger, depression, and guilt.

“Physical symptoms typically resolve within 2 weeks,” said Gaither. “The length of time for emotional symptoms is individual.”

“The recommended recovery time is 6 to 8 weeks, depending on the gestational age at the time of loss and how the delivery process ensued,” she said.

Much depends on the type of work you do and the underlying cause of the miscarriage.

In addition, underlying comorbidities such as thrombophilias, autoimmune phenomena, and diabetes, may lengthen recovery time, said Gaither.

Patchwork of protections vary

In addition to the Pregnancy Discrimination Act, Mirsky says that miscarriage can trigger other protections under various employment laws.

“Under the Family & Medical Leave Act, if an employer has 50 or more employees, the employee would most likely be entitled to up to 12 weeks of unpaid leave,” said Mirsky.

“But only for the time period that the employee is experiencing a ‘serious health condition.’ Thus, once the employee recovers from the miscarriage, the leave would end since the ‘serious health condition’ has ended,” he said.

“It’s possible that the employee could be entitled to other accommodations under the Americans with Disabilities Act,” Mirksy said.

“But the employee would have to show that the miscarriage is a ‘disability’ and ‘substantially limits a major life activity.’ Practically speaking, this will be hard to establish for most miscarriages unless the miscarriage was severe, caused by some other disability, or results in lingering medical issues,” he said.

More states and local jurisdictions have passed mandatory paid sick leave laws, noted Mirsky. And a miscarriage would most likely trigger these laws, which require different amounts of paid leave.

He cautioned that while most paid sick leave laws require employers to offer paid leave for medical conditions, it doesn’t necessarily mean that the employer must create a new “bucket” of leave for medical conditions.

“In other words, if an employee has already used up her leave for the year and then has a miscarriage, they may not be entitled to additional leave,” said Mirsky.

“Of course, some employers have generous employment policies covering pregnancy and medical issues related to pregnancy. In addition, many disability policies will also cover medical issues related to a pregnancy,” he said.

Mirsky noted that there’s no federal law requiring bereavement leave and only a few states require it.

“Thus, for most employees, their employer’s policy will govern the situation. Employees should consult their employee handbooks for their company’s policy and speak to their HR department,” said Mirsky.

If you believe you’ve been treated unfairly, Mirsky recommends making a formal complaint with your employer.

“If that is not successful, you can file a claim with the Equal Opportunity Employment Commission or a related state agency,” said Mirsky. “Of course, speaking to an attorney is the best course of action if you believe you have been discriminated against.”

More employment discrimination-related information you may be interested in:

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