Is this gender based discrimination?

[mightymoose]

Jurisdiction

California

I'm not sure if discrimination laws work this way.
A worker at a national retail store says that a pregnant co-worker is not being held to the same work requirements as others in the same position. Because of her pregnancy the other workers are being asked to make up the difference.
In short, she is doing less and they are doing more for the same pay.
I've always thought of discrimination laws protecting the pregnant female, but does the same law apply to protect the other workers from having to take on her workload with no compensation?
How do employers typically handle this?

 

[army judge]

I've always thought of discrimination laws protecting the pregnant female, but does the same law apply to protect the other workers from having to take on her workload with no compensation?

I've not seen any court challenges, or legislation changes to address your question.

A cursory search revealed nothing along the above lines, either.

However, in our litigious society, I'm sure some clever attorney will file a case sooner or later.

 

[mightymoose]

Employment stuff isn't really up my alley. A relative is griping that the pregnant female is essentially being excused from any manual labor but still holding the same position and pay as others who have to do her share. Seems discriminatory toward the coworkers but I have no idea what laws, if any, address it.

 

[adjusterjack]

@cbg may have a comment about that issue.

Seems to me that this is similar to the "reverse discrimination claims" of decades ago when "diversity" was called "affirmative action."

The purpose of "affirmative action" was to give minority workers an assist in employment. Complaints were legion about the resulting discrimination against non-minority employees.

 

[justblue]

Employment stuff isn't really up my alley. A relative is griping that the pregnant female is essentially being excused from any manual labor but still holding the same position and pay as others who have to do her share. Seems discriminatory toward the coworkers but I have no idea what laws, if any, address it.

Very likely the pregnant woman is getting an accommodation...you know, so she doesn't have either preterm labor or a miscarriage.

 

[mightymoose]

Very likely the pregnant woman is getting an accommodation...you know, so she doesn't have either preterm labor or a miscarriage.

The issue isn't so much about whether she is getting an accommodation, the issue is whether her pregnancy can bring more of a workload on others without compensation.
She is apparently unable to do the requirements of the job but is still in the position and getting paid the same as others who are doing the work

I would expect if a reasonable accommodation was made it would involve temporarily moving her to a light duty job where she is capable of doing those tasks.

 

[cbg]

As you have described it, this is not illegal discrimination. The extra work is not being handed off on the basis of race, sex, national origin and so on.

If essential functions of the job are being handed off, then it's probably not an accommodation. Neither the ADA nor the laws prohibiting pregnancy discrimination require the release of essential duties.

However, it is the opt of the employer who does what duties, and the law does not require additional compensation for extra duties. (A union contract may, but the law doesn't.) So while depending on factors we can't know in this format, it may or may not be unfair. I am perfectly willing to declare it unfair if there is no medical reason for the off-loading of these duties. But unfair is not illegal, and on the basis of what MM has described, it is not illegal.

 

[welkin]

The issue isn't so much about whether she is getting an accommodation, the issue is whether her pregnancy can bring more of a workload on others without compensation.
She is apparently unable to do the requirements of the job but is still in the position and getting paid the same as others who are doing the work

I would expect if a reasonable accommodation was made it would involve temporarily moving her to a light duty job where she is capable of doing those tasks.

The argument you are making is ridiculous IMO. When someone in a department is fired or laid off, do all other members of that department get new compensation to pick up the slack? You know the answer is no.

The case you present is temporary. The woman is pregnant, not laid off and as long as she is still working in the department, she is entitled to her wages and all others pick up the slack of what she can't do because of her physical condition. Even if she were moved to a different department with a lighter workload, the others (that still work in the dept.) would not get higher compensation.

This is one of the pettiest arguments I have heard in labor law.

 

[mightymoose]

Thanks for the feedback. I don't know what is actually taking place, just what was described to me, so maybe I can ask about a few more details.

The heart of it is that the pregnant female is still in the position and doing less work for the same pay, while others have to make up the difference. It comes across as preferential treatment. This is different than if someone is fired or a position is empty as there is no unequal treatment.

From your responses, I am hearing that preferential treatment toward the pregnant female that reduces her responsibilities and that increases work for others is not considered gender based discrimination. This is something that is within the employers management options, and while it may feel unfair it is not necessarily illegal.

 

[cbg]

You are hearing correctly. Particularly if any of the "others" who are picking up the slack are also female. Not everything that is unfair is illegal.

 

[mightymoose]

Perhaps I've been calling it the wrong thing. Maybe this falls under pregnancy discrimination rather than gender, if anything.

 

[Zigner]

Perhaps I've been calling it the wrong thing. Maybe this falls under pregnancy discrimination rather than gender, if anything.

No, it does not.

 

[Tax Counsel]

The federal laws regarding employment discrimination collectively known as Title VII were amended in 1978 by the Pregnancy Discrimination Act. The Act is explained in plain language by the EEOC on its page Pregnancy and Pregnancy-Related Disability Discrimination. In short, there is an employment discrimination law that deals specifically with pregancy discrimination rather than just being lumped in with sex discrimination.

 

[cbg]

If the pregnant woman were undergoing harsher or adverse treatment because of her pregnancy, that would be pregnancy discrimination.

Give it up, MM. Unless there are facts you are not providing, this may or may not be fair. It may or may not be preferential treatment. But fairness is not mandated and preferential treatment is only prohibited in limited situations, which do not appear to apply here. Your friend does not have any legal issue.

Now, if there are facts you or your friend have omitted that you think might change the answer, I'm perfectly willing to revisit the situation. But what you have provided is not illegal and does not give your friend any legal recourse.