As published in the New Hampshire Town and City July/August 2018 issue. A publication of New Hampshire Municipal Association.
Pregnancy discrimination is a violation of both state and federal law. The Federal Pregnancy Discrimination Act was enacted in 1978, finding that discrimination on the basis of pregnancy constitutes illegal sex discrimination in violation of Title VII of the Civil Rights Act. Likewise, New Hampshire’s anti-discrimination law, RSA 354-A:7, VI(a), provides that the word “sex” includes pregnancy and medical conditions which result from pregnancy.
An employer may not terminate an employee because she is pregnant.1 An employer also may not refuse to hire a female applicant because she is pregnant. Pregnant women also must be permitted to work as long as they choose to do so prior to having their baby. In other words, an employer cannot tell a pregnant employee that she must begin her maternity leave by a certain date.
How To Bring A Legal Claim for Pregnancy Discrimination
If a woman believes she has been discriminated against in New Hampshire on the basis of her pregnancy, her first course of action should be to bring an administrative charge at the New Hampshire Commission for Human Rights (“NHCHR”). The NHCHR is the administrative agency that handles employment discrimination cases in New Hampshire under a work-sharing agreement with the federal Equal Employment Opportunity Commission (“EEOC”). An employee must bring her claim at the NHCHR within 180 days after the alleged act of discrimination. RSA 354-A:21, III. The NHCHR will do a “dual filing” of an employee’s charge of pregnancy discrimination so that the claim is filed both under state and federal law
(Title VII).2 After the employee’s charge is filed with the NHCHR, the employer will be required to file a response to the charge, under oath.
If the employee’s charge remains at the NHCHR, the NHCHR will assign an investigator to investigate the charge. The investigation may include meeting with witnesses for the employee and the employer and collecting documents from both parties. At the conclusion of the NHCHR’s investigation, the agency will issue either a “probable cause” finding or a “no probable cause” finding. RSA 354-A:21, II(a). If a probable cause finding is issued, the NHCHR shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.3 RSA 354-A:21, II(a). If a no probable cause finding is issued, then the employee’s charge shall be dismissed, subject to a right of appeal to the superior court. RSA 354-A:21, II(a). If the discrimination is not resolved following the probable cause finding, then the NHCHR will hold a hearing before a panel of three commissioners of the NHCHR and issue a decision and award damages to a prevailing employee (where appropriate) after the hearing. RSA 354-A:21, II(b)-(d).
Filing Suit in Superior Court or Federal District Court
An employee who has filed a charge of pregnancy discrimination at the NHCHR can remove her claim from the NHCHR, after it has been pending at the Commission for a period of 180 days, and file a lawsuit either in a state superior court or the federal district court in Concord, New Hampshire (U.S. District Court for the District of New Hampshire). RSA 354-A:21-a.4 Once a suit is in court, the NHCHR will discontinue its investigation (if any). An employee who files a lawsuit in Court will then be entitled to a jury trial in state or federal court. The damages described below are available to an employee who has taken her case out of the NHCHR and filed in Court.
Damages Available for Pregnancy Discrimination
If an employer is found to have discriminated against an employee on the basis of her pregnancy and, in particular, has terminated an employee because of her pregnancy, then under Title VII,5 the employee may recover her lost wages and benefits (“back pay”) and future lost wages and benefits (“front pay”),6 compensatory damages,7 punitive damages,8 and attorneys’ fees and costs. If an employer is found to have terminated an employee because of her pregnancy in violation of New Hampshire’s state anti-discrimination statute, RSA 354-A, then the employee may recover her lost wages and benefits (“back pay”) and future lost wages and benefits (“front pay”), compensatory damages, enhanced compensatory damages,9 and attorneys’ fees and costs.
Pregnancy Discrimination Cases
There have been several recent cases of pregnancy discrimination in New Hampshire.
The case of Heather A. Taylor v. eCoast Sales Solutions, Ltd., 35 F. Supp. 3d 195 (D.N.H. 2014) was decided by the U.S. District Court for the District of New Hampshire. In that case, the plaintiff worked from home during her pregnancy (based upon doctor’s orders), and then took a maternity leave. While she was working from home, her boss told her that “she needed to be back in the office and [she] shouldn’t be out on leave and working from home due to [her] pregnancy.” Ten days after Ms. Taylor returned from maternity leave, the same boss who had made that statement, terminated her.
At the close of the discovery phase of the case, the employer moved for summary judgment, seeking to preclude the plaintiff’s case from proceeding to a jury trial. The Court denied the employer’s motion for summary judgment, holding that there were issues of material fact in dispute as to whether the plaintiff’s working from home and taking leave due to her pregnancy played an impermissible role in the employer’s decision to fire her. In this case, the employer had claimed that its real reason for terminating the plaintiff was that it had learned that the plaintiff engaged in misconduct after she returned from her maternity leave.
In denying the employer’s motion for summary judgment in this case, the Court cited to the First Circuit Court of Appeals decision in Travers v. Flight Servs. & Sys. Inc., 737 F.3d 144 (1st Cir. 2013). In its decision, the Court emphasized the fact that the plaintiff was terminated ten days after she returned from her maternity leave. In addition, the Court emphasized the fact that during the ten days between plaintiff’s return to work and her termination, for the first time since she began her employment with eCoast, she was not given any sales goals or quotas, despite the fact that she had asked her supervisor for them. Finally, the Court noted in its decision denying summary judgment that the company’s CEO (eCoast had stated in the discovery that the CEO was the person who made the decision to terminate the plaintiff) had told the vice president of human resources that he did not like people working from home.
Both federal and state law also contain leave protections related to pregnancy.
New Hampshire RSA 354-A:7, VI(b)
RSA 354-A:7, VI(b) provides that:
An employer shall permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by her employer unless business necessity makes this impossible or unreasonable.10
Case law which has developed shows that an employer in New Hampshire has an uphill battle if it wants to try to show that business necessity made it impossible or unreasonable to return a woman to her position following her maternity leave.
It is particularly important for employers to remember the provisions of RSA 354-A, VI(b). Many employers think that 12 weeks is the absolute cap on maternity leave, given the provisions of the federal Family and Medical Leave Act of 1993. However, RSA 354-A:7, VI(b) has no cap on the number of weeks an employee can take off, so long as the leave of absence is for “…the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.”
If an employer violates RSA 354-A:7, VII(b), then an employee can bring a charge of pregnancy discrimination (and, ultimately, a lawsuit, as well), as described herein.
The Family and Medical Leave Act of 1993
The Family and Medical Leave Act of 1993 (“FMLA”) provides additional protections to pregnant employees. However, not all employees are eligible for leave under the FMLA. In order for an employee to take FMLA leave, she needs to work for an employer that employs 50 or more employees (within a 75-mile radius of her worksite) during 20 or more workweeks in the current or preceding calendar year. 29 C.F.R. §825.104.11 She also needs to have been employed by the employer for one year prior to the leave and has to have worked 1,250 hours in the year immediately prior to the start of the employee’s leave. 29 C.F.R. §825.110(c)(1).12 If a pregnant employee is an eligible employee under the FMLA, then she may take up to 12 weeks of unpaid leave in the case of the birth of a child. It is possible that an employer may have insurance policies (such as short-term disability) that may provide payments to an employee prior to or during her maternity leave; however, under the FMLA, the employee’s time off may be unpaid (but with continuing health insurance benefits, if applicable).
If a husband and wife both work for the same employer, the spouses are permitted a combined total of 12 weeks for the birth of their child. 29 C.F.R. §825.120. This rule does not apply, however, in the following circumstances: (a) the leave is for the mother’s pregnancy-related disability; (b) the leave is for the father to care for the mother; and/or (c) if the leave is for either parent to care for a seriously ill baby. 29 C.F.R. §825.120(3-6).
It is also noteworthy that a pregnant woman may be able to take FMLA leave time prior to the birth of her baby if she has a serious medical condition associated with her pregnancy, or requires pre-natal care. For example, a pregnant woman can take FMLA leave time for morning sickness (even if she does not see a doctor). 29 C.F.R. §825.115(f).
The FMLA has an important reinstatement provision. When an employee (father or mother) returns from FMLA leave, he/she must be reinstated to the position he/she held when the leave commenced or an “equivalent position.” That position must be “virtually identical to the original position.” The term “virtually identical” means the same pay, benefits, duties, responsibilities, privileges, status, shift, overtime opportunities, and geographically proximate worksite. 29 C.F.R. §§ 825.214 and 825.215.
Legal Claims for Alleged Violation of the FMLA
Employers are prohibited from discriminating against an employee for asserting FMLA rights, filing charges, or testifying in a matter related to the FMLA. 29 C.F.R. §825.220.
Employers cannot interfere with an employee’s FMLA leave, and cannot use FMLA leave as a negative factor in employment decisions. 29 C.F.R. §825.220(b).
An employee who believes her employer has violated the FMLA may either file a complaint with the U.S. Department of Labor or file a private lawsuit.13 29 U.S.C. §2617.
Damages Available for Violation of the FMLA
If an employer is found to have violated the FMLA, the employee is entitled to: (1) the amount of any compensation she was denied or lost because of the violation; (2) interest on that amount; (3) as “liquidated damages,” a doubling of her lost compensation plus interest; and (4) attorneys’ fees and costs. 29 U.S.C. §2617(a)(1), and (3).
It is important for both employees and employers to understand their rights and responsibilities regarding pregnancy and pregnancy-related leaves of absence. Given the interplay among Title VII, RSA 354-A, and the FMLA, and the fact that one, two, or all of those laws may be applicable to a particular employee, employees and employers should obtain legal advice from a competent employment attorney whenever there are questions about a pregnancy or an issue related to an employee’s pregnancy-related leave of absence. Since women are an integral part every employer’s workforce, and women will continue to bear children, and require leave time related to their pregnancies and childbirth, employers are well-advised to comply with applicable laws in order to avoid legal claims, but more importantly, to retain valuable women within their workforce.
Heather M. Burns is in an attorney with Upton & Hatfield, LLP. Heather may be reached by phone at (603) 716-9777.
 State law applies to employers with six or more employees; federal law applies to employers with 15 or more employees.
2 The filing under federal law may be made so long as the employee was employed by an employer employing 15 or more employees.
3 After a probable cause finding is issued, an employer may remove the charge to the superior court for trial. RSA 354-A:21-a, I.
4 If the employee files her suit in a state superior court and also alleges a violation of the federal statute, Title VII, then the employer may remove the suit to the U.S. District Court for the District of New Hampshire.
5 For an employee to have a claim under Title VII, she has to have worked for an employer who has employed more than 15 employees for 20 or more calendar weeks in the current or preceding calendar year. (42 U.S.C. §2000e-3(b)).
6 “Back pay” covers the period of time from the employee’s termination to the date of the verdict at trial. “Front pay” is a remedy designed to restore the employee to her rightful place. It compensates the employee for future losses anticipated to be incurred because the plaintiff cannot be placed in the lost position. It is available when reinstatement, immediate hiring, or promotion is inappropriate or impossible. Front pay may be awarded until the employee obtains an equivalent position in the job market paying comparable earnings. (42 U.S.C. §2000e-5(g)).
7 Compensatory damages are available for “future pecuniary losses, emotional pain, suffering, and inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.” §1977A(b)(3) of the Revised Statutes as added by Civil Rights Act of 1991 §102.
8 Punitive damages are available when acts of discrimination were carried out with “malice or reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. §1981a(b)(1). There are federal caps on the sum of compensatory and punitive damages, depending upon the size of the employer. For an employer that employees up to 100 employees, the cap is $50,000; for an employer that employs between 101 and 200 employees, the cap is $100,000; for an employer that employs between 201 and 500 employees, the cap is $200,000; and for an employer that employs 500 or more employees, the cap is $300,000.
9 Enhanced compensatory damages may be awarded when the Court finds the employer’s discriminatory conduct to have been taken with willful or reckless disregard of the employee’s rights under RSA 354-A, (RSA 354-A:21-a(I)).
10 The leave may be unpaid unless the employer’s policies provide for paid family/maternity leave or unless the employer allows others with temporary disabilities to use paid benefits such as sick and/or vacation time. RSA 354-A:7, VI(c).
11 Public employers are covered by the FMLA, regardless of the number of employees. However, an employee must still be employed by a public employer that employs 50 or more employees within a 75-mile radius in order to be eligible to take leave.
12 An employee’s time in the military counts toward the 1,250 hours. 29 C.F.R. §825.110(c)(2) and 825.702(g).
13 For an FMLA claim, there is no requirement that an employee first brings that claim to an administrative agency like the NHCHR or the EEOC. A claim for violation of the FMLA can be brought directly in Court.