Happy Mothers’ Day weekend to all, including you dads and kids!
How much do you know about moms’ rights in the workplace in the current era? Take our quiz and find out! As always, the answers will appear at the end of each question, so you can cheat all you want, and we’ll never know. If you make it to the end, there will be a special gift, selected especially for you.
On these questions, please assume that federal law applies. Also, please note that all companies and their names and these scenarios are 100 percent made up by me. Totally fabricated. Lies, if you will.
Ready? Here we go!
NO. 1: Goggle is hiring a Director of Finance. It is considering internal and outside applicants, and the most qualified individual by far is the stellar Glenda, who reported to the prior Director. But Goggle hires less-qualified outside applicant Gloria because Glenda has four kids, and Gloria is unmarried and childless. The second choice was George, who has five kids. George is also less qualified than Glenda, but his wife is a stay-at-home mom. The Chief Financial Officer is afraid that Glenda will be too consumed with family responsibilities and may also get pregnant again soon.
Is this hiring decision legal?
A. Heck, no!
B. It stinks, but it’s legal. Glenda and Gloria are both women. George came in second only because his wife is a full-time mom, not because he’s a man. In other words, no sex discrimination. Also, no pregnancy discrimination because nobody is pregnant.
ANSWER: A. Even if Glenda isn’t currently pregnant, and even though Gloria is also female, Glenda is being discriminated against in violation of Title VII because of her sex and childbearing status. (You knew that!)
NO. 2: Vroomteems has a large remote workforce. Three of its remote workers are nursing moms: Janelle and her co-worker, Sharona, are nonexempt customer service representatives. Blondie is their (exempt) supervisor.
When Janelle has to express milk during the workday, she tries to do it while working (for example, while on the phone, and during videoconferences but with her camera off). Sharona finds she is better able to relax and “let down” if she stops working while expressing milk, so she takes a genuine break and then resumes work when she is done. Blondie does the same.
Which of these statements is FALSE?
A. Janelle must be paid for her lactation time.
B. Blondie must be paid for her lactation time.
C. Sharona must not be paid for her lactation time.
D. Sharona may or may not have to be paid for her lactation time.
ANSWER: C is false. Here's a lengthy explanation (if it's too much for Friday on a holiday weekend, feel free to skip to Question 3).
Janelle is easy. She's working. Therefore, she has to be paid.
Regarding Blondie, partial-day docking for lactation breaks could cause her exempt position to become nonexempt, meaning that she would have to be paid for all hours worked, including overtime. Exempt employees should be paid their regular weekly salary even if they have to take lactation (or other) breaks during the workday and perform no work during those breaks.
NOTE: The Family and Medical Leave Act specifically allows partial-day docking of exempt employees for intermittent or reduced schedule leave. But nursing breaks are not covered by the FMLA, and the PUMP for Nursing Mothers Act does not have a similar provision.
Regarding Sharona, because she is nonexempt and not working at all during her lactation breaks, Vroomteams wouldn't normally have to pay her for that time. But that’s only the general rule. If Vroomteems provides paid breaks to employees for other reasons (including applicable state or local laws that require paid breaks), it would have to allow Sharona to use her paid break time for lactation. Also, if Sharona has PTO available and wants to use it to cover her breaks, Vroomteems would have to let her do that.
I think they meant "Of," but whatever.
NO. 3: Seymour has been employed with Ample for six months. His wife, Doris, is in the sixth month of a high-risk pregnancy. Seymour asks for intermittent time off so that he can take Doris to her doctor’s appointments. You tell him that he is not eligible for intermittent FMLA leave because he hasn’t been employed with Ample for 12 months. A few days later, he comes back and shows you something he found on the internet saying that he is entitled to the time off as a reasonable accommodation under the Pregnant Workers Fairness Act. Is he right?
A. Yes.
B. No.
C. It depends.
ANSWER: B. The PWFA applies only to the employee who is actually pregnant. If Doris were the employee, then she would be entitled to pregnancy accommodations regardless of her length of service. But Seymour is not.
That said, under the circumstances I would encourage Ample to do whatever it could to accommodate Seymour.
NOTE: If Seymour were FMLA-eligible, he would be entitled to FMLA leave based on the “serious health condition” of his spouse and possibly also based on the “serious health condition” of his child.
NO. 4: Marlene, who has worked for Microsquish for three years, is a phenom. She is six months’ pregnant, still running marathons, never had a moment of morning sickness, looks fantastic, and feels even better. She needs time off only so the doctor can verify that her blood pressure and weight are still perfect, and measure her belly to confirm that her equally phenomenal unborn child is still growing and thriving. Is Marlene legally entitled to time off for this well visit with her doctor?
A. Yes.
B. No.
ANSWER: A. No matter how healthy Marlene is, she is entitled to “serious health condition” FMLA leave for prenatal care, assuming she has the time available. (You knew that!)
NO. 5: Tardi is four months pregnant when she interviews for a job with Z. She does not disclose the pregnancy, and she gets the job. On her second day at work, she tells her supervisor, Beth, that she’s pregnant and will need time off for prenatal visits and morning sickness, plus maternity leave when the baby is born five-or-so months hence. Beth wants to fire Tardi for not having disclosed her condition during the hiring process. Can she do that?
A. No, unless there is proof that Tardi knew she was pregnant during the hiring process and willfully concealed it.
B. Yes. Although Tardi wasn't legally required to disclose the pregnancy, any ethical person would have done that. Plus, Beth is a female, and probably a mom herself.
C. No.
ANSWER: C. It would have been nice if Tardi had disclosed her pregnancy early on (assuming she knew about it), but if Beth terminates her now, Z could be liable for refusing to make reasonable accommodations for pregnancy under the PWFA, for PWFA retaliation, and for pregnancy discrimination under Title VII. Better to suck it up. No matter how many kids Beth has.
HOW’DJA DO?
4-5 correct: Great!!! You're "a candle that's set in a window at night," Dear Mother Machree!
2-3 correct: Flawed, but you're still a decent mom. Sorta. You're Peg Bundy!
0-1 correct: Ree! Ree! Ree! Ree! You're Mrs. Bates!
Just kidding! You all did great! And here’s that special gift I promised you:
After this quiz, you've earned that bottle of wine!
- Of Counsel & Chief Legal Editor
Robin also conducts internal investigations and delivers training for HR professionals, managers, and employees on topics such as harassment prevention, disability accommodation, and leave management.
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This is Constangy’s flagship law blog, founded in 2010 by Robin Shea, who is chief legal editor and a regular contributor. This nationally recognized blog also features posts from other Constangy attorneys in the areas of immigration, labor relations, and sports law, keeping HR professionals and employers informed about the latest legal trends.
