What Employers Should Know About Pregnancy Discrimination

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. 

Examples of Pregnancy Discrimination

What does pregnancy discrimination look like? Examples include but aren’t limited to the following:

• Asking a job applicant if they are or intend to become pregnant and then ruling them out because they answered 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

Laws Against Pregnancy Discrimination

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 new Pregnant Workers Fairness Act (PWFA) also applies to employers with 15 or more employees and is effective June 27, 2023. 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 what was already required by 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.

Many state and local laws go above and beyond these two federal laws providing additional protections for pregnant employees, and often these laws apply to employers with a lower employee count. Check the state law pages on the platform for more information.

Employer Obligations Under the PDA and PWFA

You can protect your workplace and your employees from pregnancy discrimination by doing the following:

• 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 but aren’t limited to providing more frequent or longer breaks, modifying a food or drink policy, providing seating or allowing the employee to sit more frequently if their job requires standing, observing limits on lifting, and providing job restructuring, light duty, or a modified work schedule.
• 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.
• Ensure that managers are aware of the law and types of accommodations that may be required.
• Treat pregnant employees just as favorably as other employees.
• Don’t take any adverse action against an employee or applicant for requesting or using an accommodation.

Related Laws

There are other federal laws that may apply to applicants or employees who are, have been, or will be pregnant. A few of these are summarized below.

PUMP Act
Under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which amended 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 this sounds like the lactation accommodation law that has been around since 2010, the PUMP Act now ensures that exempt employees have these 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.