127.12 Pregnancy, childbirth, maternity leave or related medical condition

The Respondent discharged the Complainant for lying on a job application by not disclosing a conviction that had been expunged from her record. The Respondent’s belief that the Complainant was obligated to disclose an expunged conviction was incorrect but was not shown to be a pretext for discrimination based upon the Complainant’s pregnancy. Mussatto v. Acceptional Minds, LLC (LIRC, 04/29/21).

The WFEA contains no accommodation requirement for pregnancy. All that is required is that the pregnant employee be treated the same as employees with short term disability not related to pregnancy. Peterson v. Alter Trading Corp. (LIRC, 06/27/19).

The Complainant failed to establish that there was probable cause to believe that she was discriminated against on the basis of her pregnancy and related medical conditions in regard to the terms and conditions of her employment. The Complainant had alleged that the Respondent discriminated against her when she was not offered a sedentary position after her feet and ankles became swollen and painful due to pregnancy. The Complainant did not establish that her treating physician had ever advised the Respondent that she was experiencing swollen and painful feet and ankles, or that she ever requested assignment to different duties or a different position. Further, the Complainant did not establish that it was the Respondent’s policy or practice to accommodate other employees who had temporary medical conditions or restrictions by assigning them to other duties or positions. Schultz v. Get, Inc. (LIRC, 12/08/06).

The Respondent unlawfully discriminated against the Complainant when the Respondent’s owner required her to go home and stay home until after her baby was born, even though the Complainant was physically able to perform her work responsibilities. The owner’s attitude toward the Complainant’s pregnancy and maternity leave was that, consistent with the practice in the owner’s native culture, the Complainant should stay home at least three months before her baby was born and at least three months after the baby was born. This attitude accounted for the Respondent’s reluctance to recall the Complainant from maternity leave when the Complainant called the Respondent about returning to work approximately a week after her child was born. The Respondent refused to allow the Complainant to return to work because of her pregnancy and related medical conditions. Hill v. Chinni, Inc. (LIRC, 05/26/06).

Although the Complainant was no longer pregnant at the time she was discharged, she could still be considered a member of a protected class because she had recently been pregnant. Blahnik v. IBEW Local 158 (LIRC, 01/13/06).

It is not unlawful per se under the Wisconsin Fair Employment Act to treat medical conditions related to pregnancy poorly or callously. It is only unlawful to treat medical conditions related to pregnancy differently from medical conditions related to other causes. Michno v. Pizza Hut (LIRC, 08/11/98), aff’d sub nom. Michno v. LIRC (Lincoln Co. Cir. Ct., 02/23/99).

The Complainant failed to prove discrimination on the basis of pregnancy, childbirth or maternity leave where the Respondent failed to hire her because it believed that she needed to take time to care for her sick newborn child. The Complainant had already given birth without complication at the time she sought employment with the Respondent. Paul v. Fox Point Sportswear (LIRC, 02/04/93).

There is no discrimination because of pregnancy in a policy that employees with non-work-related disabilities will be placed on leave of absence if they cannot perform their regular duties, while employees with work-related disabilities which prevent them from performing their regular duties will whenever possible be given modified duties or light work so as to allow them to continue to be employed. In such a case, the distinction is not between pregnancy-related disability and other kinds of disability. Rather, it is between work-related disability and non-work-related disability, this being a distinction which is facially neutral (and there was no evidence that such a distinction had a statistically significant impact on the employment opportunities of pregnant females). Hager v. Heide Health Sys.-Eagleton Homes (LIRC, 04/29/92).

Assuming only for the sake of discussion that the term “pregnancy, childbirth, maternity leave or related medical conditions” in sec. 111.36(1)(c), Stats., encompasses medical conditions of newborn infants such that an absence from work of the mother necessitated by her role in caring for the infant is a disability which the employer must treat equally with other disabilities, the Complainant in this case did not establish a violation of the Act because she did not demonstrate that it was medically necessary for her to stay home with her children rather than attending a manager’s meeting as her employer directed. Egger v. Sterling Optical (LIRC, 03/26/92).

Pregnancy and pregnancy-related medical conditions are not covered by the handicap discrimination provisions of the WFEA. The WFEA prohibits discrimination on the basis of pregnancy as a form of sex discrimination. Goodrich v. Duro Paper Bag Mfg. Co. (LIRC, 02/14/92).

Where the employer included absences caused by pregnancy in computing total use of accident and sickness leave benefits and disciplined all employees who used excessive amounts of these benefits, there was no violation of the Act. The Complainants failed to prove disparate impact on females since the statistical evidence was insufficient to demonstrate that females were affected by this discipline policy at a rate greater than that which would normally be expected. Also, it was not illegal for the employer to treat pregnancy disability in the same fashion that it treated all other disabilities when disabilities were a factor with disciplinary rather than benefit consequences. The Act simply requires that disability connected to pregnancy be treated the same as other disabilities; it does not require that no negative consequences ever be allowed to flow from pregnancy-related disabilities. Lane v. Uniroyal Tire Co. (LIRC, 04/26/88).

The denial of accrued sick leave solely to women on maternity leave is sex discrimination. Gen. Tel. Co. v. LIRC (Kraczek) (Dane Co. Cir. Ct., 02/06/81), aff’d, (Ct. App., Dist. IV, unpublished opinion, 12/09/81).

A disability pay plan which withholds benefits from pregnancy-disabled employees violates the Wisconsin Fair Employment Act. Kimberly-Clark v. LIRCM, 95 Wis. 2d 558, 291 N.W.2d 584 (Ct. App. 1980).

A woman who becomes disabled because of an operation peculiar to her sex must be given the same scope of disability benefits as the man who is disabled because of an operation peculiar to his sex. It does not matter that women, as a class, may in one year receive more in dollar benefits than men as a class, or that the average woman may receive more than the average man. It does matter that individuals are treated as individuals and are treated equally in terms of compensation for disability, even if they may have disabilities arising out of factors peculiar to their sex. Goodyear Tire & Rubber v. DILHR, 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978).

It was unlawful to deny a teacher use of her accumulated sick leave for pregnancy absences where other employees were permitted to use accumulated sick leave toward absences for other disabilities. Waupun Area Sch. v. DILHR (Lyon) (Dane Co. Cir. Ct., 12/13/78).

An employee benefits plan which excludes pregnancy disability from its coverage is discriminatory even where the plan also excludes disabilities predominantly affecting males and even where female employees averaged more in total yearly benefits received than male employees. Sears v. LIRC (Demeny) (Dane Co. Cir. Ct., 12/04/78).

A denial of disability benefits to pregnant employees is sex discrimination where an employer’s sickness and accident plan makes benefits generally available for other types of disabilities. Ray-O-Vac v. DILHR, 70 Wis. 2d 919, 236 N.W.2d 209 (1975).