On Monday, news broke that Michelle Tan, who had been the editor in chief of Seventeen since 2014, was let go from the Hearst magazine while on maternity leave — leaving women everywhere wondering if being let go during this period is even legal, and what protections pregnant women and new mothers are entitled to in the workplace.
To understand the legal issues at play, you first have to understand those issues behind family leave in the United States, the only First World economy without a federally guaranteed, paid family-leave policy. What we do have in the U.S. is the Family and Medical Leave Act (FMLA), which was signed into law by President Bill Clinton in 1993.
“There is no federal law providing all workers with ‘standard’ maternity leave,” says Maya Raghu, the Director of Workplace Equality with the National Women’s Law Center, in an email to Yahoo Style. “If a person is eligible for FMLA leave, they can use that as maternity leave — 12 weeks of job-protected unpaid leave.”
Raghu notes that under the FMLA, an employee can take that leave all at once or intermittently (in separate blocks of time). Employees usually must provide a 30-day notice to their employers when requesting an FMLA leave, and employers can ask for certification of the need for leave (such as a doctor’s note). Furthermore, if employers provide health insurance, employees are entitled to continued coverage during the FMLA leave on the same terms. When employees return from an FMLA leave, they must be reinstated in the same or equivalent job.
“The FMLA doesn’t prohibit employers from firing an employee while they are on FMLA leave — whether it is unlawful depends on the facts and reasons,” Raghu says. “Firing someone while they were on FMLA leave just because they gave birth would probably be discriminatory. Firing someone on FMLA leave for performance reasons could be permissible, depending on the motivation and timing.”
Possible discrimination that pregnant women or new mothers might potentially face in the workplace can take other forms.
Pregnancy discrimination is another threat and is defined as treating either a job applicant or an employee unfavorably because of pregnancy, childbirth or a related medical condition, says Raghu. She notes that the federal Pregnancy Discrimination Act (PDA) protects not only women who are pregnant or who have given birth, but also women who might become or intend to become pregnant, or have been pregnant. The act prohibits discrimination in all aspects of employment, including pay, job assignments, promotions, training and access to such benefits as leave and health insurance. It also guarantees that pregnant workers cannot be treated less favorably than nonpregnant workers who have a similar ability or inability to work.
Eighteen states and the District of Columbia have gone beyond the basic federal protections and have enacted laws explicitly granting pregnant employees the right to reasonable accommodations. “But the laws vary,” Raghu says. “So pregnant workers’ rights can depend on the state in which they live or work.”
If you think you have been discriminated against because of employment action related to pregnancy, childbirth or a related medical condition, you can contact the federal Equal Employment Opportunity Commission (EEOC) to assess and determine next steps, file a charge and have an investigation conducted.