I am pregnant and I am working in Washington State. What rights do I have as a pregnant or expecting parent at my job?
Washington LawsThat Protect Pregnant Parents Against Pregnancy Discrimination
In Washington, parents have a number of rights related to pregnancy and parental leave. Washington has a patchwork of laws that protects pregnancy-related accommodations, medical leave, pregnancy leave, parental leave, and job security for parents and pregnant workers. Below we will discuss several rights that should be provided to pregnant or expecting parents.
I. HEALTHY STARTS ACT
The first law that protects pregnant parents is the Healthy Starts Act, or “HSA”. In order to be eligible for the rights of the HSA, the employer must have at least fifteen (15) employees. See RCW 43.10005(1)(a). If the employer meets this criteria, the HSA expressly states it is an “unfair practice” to “[r]equire an employee to take leave if another reasonable accommodation can be provided for the employee’s pregnancy.” See RCW 43.10.005(2)(d). The HSA also requires that employers must allow for per se “reasonable accommodations” to pregnant persons including but not limited to:
- – providing more frequent, longer, or flexible restroom breaks;
- – modifying a no food or drink policy;
- – job restructuring, providing seating or allowing the employee to sit more frequently if their job requires them to stand;
- – part-time or modified work schedules;
- – reassignment to a vacant position;
- – providing for a temporary transfer to a less strenuous or less hazardous position;
- – scheduling flexibility for prenatal visits;
- – providing break time for an employee to express breast milk for two years after the child’s birth each time the employee has need to express the milk and providing a private location, other than a bathroom, if such a location exists at the place of business or worksite;
- – providing assistance with manual labor and limits on lifting; and
- – “[a]ny further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the department of labor and industries or the attending health care provider of the employee.”
See RCW 43.10.005(1)(c)(i)-(ix); see also Arroyo v. Pac. Mar. Ass’n, Wn. App. LEXIS 928 (Div. I, 2023). In addition, under the HSA, RCW 43.10 et. seq., it is an unfair practice for an employer to take adverse action against an employee who requests, declines, or uses an accommodation under this section that affects the terms, conditions, or privileges of employment.
Consult with a Pregnancy Discrimination Attorney in Washington Regarding Your Eligibility and Rights.
You should be able to focus on yourself and your child during pregnancy. If you are an eligible employee and you are planning on or interested in any of these accommodations, McHugh Law, PLLC can help you work with you, your medical provider, and your employer to find accommodations that work best for you. If you are seeking these accommodations and your employer has denied them, you have suffered an adverse action, or you have been terminated for attempting to utilize these accommodations, you may be able to seek compensation from your employer for breaking the law. Contact McHugh Law if your employer has interfered with your rights under the HSA.
II. THE WASHINGTON LAW AGAINST DISCRIMINATION
Additionally, the Washington Law Against Discrimination (“WLAD”) prohibits discrimination against pregnant women. Discrimination because of pregnancy-related activity is sex discrimination under the WLAD. See RCW 49.60.180; see also WAC 162-30-020. Its purpose section “clearly condemns employment discrimination as a matter of public policy.” Roberts v. Dudley, 993 P.2d 901, 908, 140 Wash. 2d 58 (2000). The Pregnancy Discrimination act, created through the WLAD, goes further; its stated purpose is to “equalize employment opportunity for men and women.” WAC 162-30-020(1). One of the ‘Findings’ of the rule is that “[d]iscrimination against women because of pregnancy or childbirth lessens the employment opportunities of women.” WAC 162-30-020(2). The rule labels as an unfair practice the termination of a woman because of pregnancy or childbirth.
If you have been discriminated against or have been terminated due to your pregnancy or childbirth, you may be able to seek compensation against your employer for violating your rights.
III. PARENTAL LEAVE AND THE RIGHT TO REINSTATEMENT
The Washington Paid Family Medical Leave Act, (“WPFMLA”) RCW 50A et. seq. additionally protects your rights to pregnancy and parental leave. Eligible employees have the right to take protected leave (RCW 50A.04.020), and to be free from interference, discrimination, and retaliation by employers (RCW 50A.04.085) for taking leave. A person can apply with the Employment Security Department to seek paid leave in Washington, and then take paid parental or pregnancy leave.
Eligibility and Rights
If an employee takes leave under the WPFMLA for pregnancy or parental leave, if the employer has 50 employees or greater, the employee is guaranteed that they be reinstated once they return from their leave. Additionally, the employer cannot discriminate, retaliate against, or interfere with someone’s rights under WPFMLA.
If you are an eligible employee, and your employer has either refused to grant leave under the WPFMLA, has interfered with your leave, or has terminated you for taking medical leave, you may be eligible to seek compensation for discrimination under the WPFMLA. Contact McHugh Law, PLLC for a consultation.
IV. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
Often, many of the laws above do not apply because a parent or pregnant person works for a smaller employer with fewer employees than the required thresholds (such as 8 employees for the WLAD, 15 employees for the HSA or 50 employees for the WPFMLA.)
In such cases, if a person is terminated for being pregnant or taking medical leave, it is still possible to file a claim for wrongful discharge in violation of public policy. An employee is wrongfully discharged if that discharge “contravenes a clear mandate of public policy.” Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1089 (Wash. 1984).
In Roberts v. Dudley, the plaintiff alleged that Dudley discharged her because she was pregnant and that the discharge was wrongful in violation of Washington’s public policy against sex discrimination, relying on the WLAD. Roberts v. Dudley, 993 P.2d 901, 903, 140 Wash. 2d 58 (2000). The Roberts court held that the WLAD created a clear mandate of public policy against sex discrimination that governs all Washington employers, even though the WLAD’s statutory remedies only apply to employers with eight or more employees. Id. at 908-909; RCW 49.60.040(3). Although Dudley never employed eight or more employees, the public policy expressed in the WLAD provided a basis for the plaintiff’s wrongful discharge claim. Id.
Our Washington Attorney Can Still Fight Your Pregnancy Rights Against a Smaller Employer!
Therefore, even if you work for a smaller employer, if you are terminated for being pregnant, taking medical leave, or requesting accommodations for your pregnancy, you still may be able to file a lawsuit against your employer for violating the public policy against pregnancy discrimination.
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Colin F. McHugh is an experienced employment attorney in Washington and Oregon. He has represented several parents in accessing pregnancy and parental accommodations, taking pregnancy and parental leave, and litigated pregnancy cases in court. Mr. McHugh has litigated many cases regarding pregnancy and parental leave cases including this recent press story here.
If you have experienced pregnancy discrimination at work or been terminated for being pregnant, you can find out more information by contacting Colin’s team below.
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