Question of the Month: What Should Employers Know About Pregnancy Discrimination?

Pregnancy discrimination happens when an employer treats an applicant or employee unfavorably because they’re pregnant, gave birth to a child, or have a medical condition related to their pregnancy or childbirth. Despite being against the law, pregnancy discrimination remains a pervasive problem, at great personal and professional cost to its victims. Every year, the Equal Employment Opportunity Commission (EEOC) receives thousands of charges related to pregnancy discrimination. Each year, the resolutions cost businesses millions of dollars.

What does pregnancy discrimination look like?

Great question. Some examples include:

• Asking a job applicant if they are or intend to become pregnant, then ruling them out because they answer yes.
• Telling an employee that their upcoming pregnancy-related leave will delay a project, risking their chance at a promotion.
• Requiring an employee to take leave when other effective accommodations are available, or no accommodations are needed.
• Pressuring an employee to have or not have an abortion.
• Making jokes about pregnancy or a pregnant employee’s body (if unwanted and severe or pervasive).
• Denying an employee an opportunity or reducing their role out of concern about health risks.
• Requiring an apparently healthy pregnant employee to provide a doctor’s note to prove they can still do their job duties.
• Retaliating against an employee for a past pregnancy by terminating them while on parental leave.

Are there laws that prevent and protect against pregnancy discrimination?

Another good question, and yes. There are two federal laws that specifically protect employees from pregnancy discrimination.

The Pregnancy Discrimination Act (PDA), enacted in 1978, is an amendment to Title VII of the Civil Rights Act of 1964 and applies to private employers with 15 or more employees. It forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment.

The Pregnant Workers Fairness Act (PWFA), effective in June 2023, also applies to employers with 15 or more employees. It requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions. There is an exception if providing the accommodation would cause an undue hardship (defined as a significant difficulty or expense) on the employer. This law expands employer obligations beyond existing requirements under the Americans with Disabilities Act (ADA) because under the PWFA, being entitled to a pregnancy-related accommodation doesn’t require that the employee’s condition rise to the level of disability. Also, employees are entitled to accommodations even if they can’t perform their essential job functions on a temporary basis.

5 things employers can do to stay compliant with PDA and PWFA

Here are five ways employers can protect their workplace and employees from pregnancy discrimination:

1. If you’re an employer with 15 or more employees, accommodate employees’ and applicants’ known limitations related to pregnancy, childbirth, or related medical conditions. Possible accommodations might include providing more frequent or longer breaks, modifying a food or drink policy, providing seating or allowing employees to sit more frequently if their job requires standing, observing limits on lifting, and providing job restructuring, light duty, or modified work schedules.

2. Add a pregnancy accommodations policy to your handbook if you don’t already have one.
   If you’re subject to a state or local law that provides similar accommodations, make sure your policy captures the most employee-friendly aspects of all applicable laws.

3. Ensure that managers are aware of the law and types of accommodations that may be required.

4. Treat pregnant employees just as favorably as other employees.

5. Don’t take any adverse action against an employee or applicant for requesting or using an accommodation.

4 other pregnancy-related laws employers should know

Beyond PDA and PWFA, there are other federal laws that may apply to employees/applicants who are, have been, or will be pregnant:

PUMP Act

Under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP), which amends the Fair Labor Standards Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work. This right is available for up to one year after the child’s birth. While similar to a 2010 lactation accommodation law, the PUMP Act ensures that exempt employees have lactation rights as well.

FMLA

Under the federal Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, a new parent (including a foster or adoptive parent) may be eligible for 12 weeks of leave that can be used for care of the new child. Employee eligibility requirements apply.

ADA

The Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, prohibits employers from discriminating against qualified individuals with disabilities—including pregnancy-related disabilities—in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

More from Mineral

In 2022, the Supreme Court overturned Roe v. Wade, created uncertainty for employers seeking to ensure their benefits plans can fully meet the reproductive health needs of all employees, no matter where they live. Our webinar, Employer Healthcare Benefits in a Post-Roe v. Wade World, offers advice on how to offer healthcare benefits to support reproductive healthcare services and how to handle discussions in the workplace. It’s a powerful hour, featuring compelling and important information for businesses of all sizes.

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