Pregnancy or Childbirth

Any procedure that treats you as a pregnant female less favorably than other employees who have temporary disabilities is sex discrimination according to both state and federal laws.

It is illegal for an employer to use pregnancy as a reason to take any adverse action that would not have been undertaken otherwise, including lay-off, reduced responsibilities or reduced pay. Wisconsin also requires some parents be allowed unpaid leave in connection with births and adoptions.

Frequently Asked Questions

May an employer refuse to hire you because you are pregnant?

No. If you meet the qualifications required for the job, you may not be denied employment simply because you are pregnant.

Are you required to tell an employer when you apply for a job, that you are pregnant?

No. You are not required to do so under either state or federal laws.

May an employer ask you if you are pregnant or planning on having children in the near future?

An employer may not ask a question that applies to only one group of applicants and not to another, if the only difference between the groups is a characteristic or status protected by the Fair Employment Law. Furthermore, the employer may not ask or use the information obtained from a question to discriminate against you because of your membership in a protected category. Since only women may become pregnant and bear children, questioning about these matters is discriminatory. The use of questions about your intent to have children may also be discriminatory, even if both men and women are asked.

What is your employer's obligation to you if you are temporarily unable to perform your job because of pregnancy?

Your employer is required to treat you, if you are unable to perform your job because of your pregnancy in the same manner as it treats other temporarily disabled employees, whether by providing modified tasks, alternative assignments, disability leave or leave without pay.

Your employer should provide the same benefits to employees disabled by pregnancy as it provides to other temporarily disabled persons.

Additionally, employers with 50 or more permanent employees must allow you up to six weeks of family leave per year, without pay, for the birth of your child if the leave begins within 16 weeks of the child's birth and you meet the eligibility requirements.

May your employer legally discipline or terminate you if you are pregnant?

Yes. You may be disciplined or terminated for cause. An employer may impose the same discipline on you as a pregnant employee as on any other employee. If a complaint is filed, discrimination will not be found if your employer can document that the discipline or termination was for willful neglect of job duties, or for failure to follow work rules that are enforced impartially on all employees.

May your employer discharge or discipline you because you have or are contemplating terminating a pregnancy?

No. Your employer cannot discriminate in its employment practices against you because of any pregnancy-related conditions.

May your employer discharge, refuse to hire or discipline you because you are pregnant and not married?

No. Your employer may not treat you as a pregnant employee any differently on the basis of your marital status. Your employer must also provide maternity insurance benefits to you without regard to your marital status. Though this will not necessarily include coverage for a newborn child, your employer may not offer dependent coverage to some employees and not others on the basis of sex.

May your employer force you to take maternity leave at some arbitrary point in your pregnancy?

No. Your employer may not force you to go on leave unless you are unable to perform the functions of your job. The timing and length of temporary disability leave should be determined between you and your doctor, as are other medical absences.

What if customers/co-workers are uncomfortable with you performing the job while pregnant?

Co-worker or customer preference is not a valid reason for refusing to allow you to continue performing your job, if you are able.

Must your employer hold your job open while you are absent on leave because you are temporarily disabled by a pregnancy-related condition?

Your job must be held open for your return on the same basis as jobs are held open for employees on sick or disability leave for other reasons.

If you are entitled to medical leave under the law and take that medical leave in relation to a pregnancy, you must be reinstated to your former position if it is vacant, or reinstated into an equivalent position with equivalent compensation, benefits, work shifts, hours, and other terms and conditions of employment if your former position is not vacant. This is also true as to both male and female employees who take family leave for bonding or childcare time under the law.

What if you want to be off work beyond the time you are physically disabled because of your pregnancy?

There is a clear distinction between childbearing leave and child rearing leave. Childbearing leave (when a doctor determines you are emporarily disabled) should be handled the same as other temporary leaves for medical reasons. When child rearing leave is granted by an employer, it should be available to both men and women and handled on the same basis as leave for any other non-medical personal reason.

Under the Wisconsin Family and Medical Leave Law, if your employer 50 or more permanent employees and you are covered your employment must allow you up to six weeks of family leave in a 12-month period, without pay, for:

The birth of your child if the leave begins within 16 weeks of the child's birth.
The placement of a child with you for adoption if the leave begins within 16 weeks of the child's placement.

Note: The federal family and medical leave law may provide additional weeks of leave. Contact the U. S. Labor Department, Wage and Hour Division.

What obligations does your employer have with regard to the payment of maternity benefits?

Your employer is required to provide disability coverage for pregnancy on the same basis as it provides it for any other condition. This means that both disability income protection and medical expense insurance must cover maternity-related disabilities and maternity-related health care expenses on the same basis as for all other conditions.

Any health insurance plan offered in connection with employment must cover maternity on the same basis as other conditions, whether or not your employer make contributions to the plan. If your employer does not have any disability coverage for employees it is not obligated to provide such coverage for maternity, but must still treat you as a pregnant employee in the same manner as other employees who are temporarily disabled.

If your employer employs 50 or more people on a permanent basis and you have been employed for the prior 52 weeks and worked at least 1000 hours during that period, you are entitled to unpaid leave under the law in connection with birth during any leave taken under the law. You may decide to use accrued paid leave instead of unpaid leave. Your employer must maintain the same group health insurance coverage for you as existed prior to the leave, with the same conditions that applied prior to the leave.

Is your employer required to pay part of your salary while you are on a pregnancy disability leave?

No. Your employer is required to pay only such benefits as are paid to employees who are on disability leaves due to reasons other than pregnancy.

May a union and your employer enter into a health or disability insurance contract which excludes maternity benefits?

No. The union and your employer are both subject to the Wisconsin Fair Employment Law and held accountable for entering into a discriminatory contract.

Can there be waiting periods before maternity coverage begins?

There can be the same waiting period before maternity coverage takes effect as there is for coverage of other health conditions.

If you leave the job, does your employer have to pay maternity benefits?

If the benefits for other conditions are extended beyond the termination of employment, then benefits for maternity must be extended also. If benefits for other conditions end, they can end for maternity.

Must your employer provide health insurance coverage for the medical expenses of pregnancy-related conditions of the spouses of male employees? of the dependents of all employees?

When your employer provides no coverage for dependents, it is not required to begin such coverage. However, every group health insurance policy which provides coverage of dependent children and maternity coverage for any individual shall provide maternity coverage for dependent children. Wisconsin Insurance Commission rules require that complications of pregnancy be covered in all health insurance plans.

When your employer offers you a choice among several health insurance plans, must coverage for pregnancy-related conditions be offered in all the plans?

Yes. Each of the plans must cover pregnancy-related conditions. If you have a single coverage policy you must receive coverage for you own pregnancy-related condition and not be forced to carry a family policy. However, you could be required to purchase a family policy in order to provide coverage for your child.

When you convert from the group medical coverage to an individual policy upon terminating employment, do the laws regarding discrimination apply to the individual policy?

Yes. A new conversion policy must be offered which provides the same coverage for pregnancy-related conditions as it provides for other medical conditions. If the coverage is reduced for all conditions, it may be reduced on the same basis for pregnancy-related conditions.

If you are unable to work because of pregnancy-related temporary disability are you eligible for worker's compensation?

No. Worker's compensation is available only to those persons who have a job-related illness or injury.

When might you be eligible for unemployment compensation?

You are only eligible for unemployment compensation during the time you are physically able to work and available for work. If you were laid off during your pregnancy and unable to obtain other work, though available for work, you would be eligible for unemployment compensation until such time as you are hospitalized or otherwise unable to work.

What laws specifically apply to maternity benefits available you?

Both federal and state laws address the matter of maternity benefits. The Pregnancy Amendments of Title VII of the Civil Rights Act of 1964 is the federal legislation. The Wisconsin Fair Employment Act (111.31-111.395, Wis.Stats.) includes the following language regarding maternity:

"(1) Employment discrimination because of sex includes, but is not limited to any of the following actions by any employment, labor organization, employment agency, licensing agency or other person . . .
(c) Discriminating against any woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions by engaging in any of the actions prohibited under s. 111.322, including, but not limited to, actions concerning fringe benefit programs covering illnesses and disability."

Wisconsin's Family and Medical Leave Law applies to employers with 50 or more permanent employees and you as an employee if you have been employed for the prior 52 weeks and have worked at least 1,000 hours during that period.

Are insurance companies bound by these laws?

These laws apply only to employers. It is your employer's or union's responsibility to buy insurance policies which comply with the law. There is no comparable obligation on insurance companies. However, an insurance company would be wise to advise an employer/union-client of the legal obligations regarding maternity benefits.

Are there any differences in federal and state laws?

There are no differences in what is required in the federal and state discrimination laws in the treatment of you as a pregnant employee by an employer. Federal discrimination law applies only to those employers with 15 or more employees. Wisconsin's Fair Employment Act covers all employers in Wisconsin. The federal and state family and medical leave laws apply to employers with 50 or more permanent employees. However, the two laws differ in key areas. For a comparison between the federal and state family and medical leave laws, visit the Wisconsin Equal Rights Division's Wisconsin and Family Medical Leave Act webpage.

Does it make any difference whether an employment-related maternity complaint is filed with the federal Equal Employment Opportunity Commission (EEOC) or Wisconsin's Equal Rights Division (ERD)?

As to claims of discrimination, not really. In Wisconsin, The EEOC and the ERD have a work sharing agreement that requires complaints to be co-filed with each other unless the complainant objects. There are some differences in the procedures followed by the state and federal agency when a complaint is filed. Attorney's fees are available through a successful action under both federal and state law.

Claims that the Wisconsin Family and Medical Leave Act has been violated must be filed with the Wisconsin Equal Rights Division within 30 days of knowing about the alleged violation. A claim under the federal family and medical leave law must be filed with the U. S. Labor Department, Wage and Hour Division.

What usually happens when an employment-related maternity complaint is filed with the Wisconsin Equal Rights Division?

Since case law and precedents in discrimination cases are quite well established, the parties in pregnancy discrimination cases frequently achieve prompt settlements. Please ask for a copy of the brochure "Wisconsin Fair Employment Law and Complaint Process" for more information about the steps in processing a discrimination complaint.

For more information

Online
Paper (to be mailed)