Pregnancy Discrimination and Pregnancy Laws
The Pregnancy Discrimination Act (PDA) (as amended to Title VII of the Civil Rights Act of 1964) protects women from pregnancy discrimination. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related-purposes, including receipt of benefits, as other persons not so affected but similar in their ability or inability to work.
Evidence of discrimination can take the form of verbal abuse, lack of support of a pregnant employees health and well-being compared to peers, long working hours compared to peers, and extreme actions such as demoting and firing pregnant employees.
Additionally, pregnancy can bring cause health conditions such as gestational diabetes, hyperemesis gravidarum edema, preclampsia, post-partum depression, and others. Such health conditions likely arise to the level of a disability under the Americans with Disabilities Act (ADA) entitling the employee to reasonable accommodation, such as flexible hours, remote work, and unpaid leave.
The Family and Medical Leave Act (FMLA) protects the use of FMLA leave for the birth of a child, for prenatal care and incapacity related to pregnancy, and for the employeesserious health condition following the birth of a child. A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or child birth).
The Fair Labor Standards Act (FLSA) provides for some protections concerning lactation.
Additionally, the Pregnant Worker's Fairness Act (PWFA) was enacted June 2023. It applies to businesses with 15 or more employees. The PWFA provides protections for pregnant employees and employees with pregnancy related medical conditions.
Subject to court decisions that interpret the PWFA differently, as of 2023, the term "pregnancy related medical conditions" appears to include conditions that exist pre-pregnancy (for example, conditions related to menstruation or infertility) in addition to conditions that arise post-partum (depression, physical trauma from child birth). It may also include conditions related to termination of pregnancy. It certainly includes common pregnancy related conditions such as pre-term labor risk, diabetes, hyperemesis gravidarum, preeclampsia, and others.
The PWFA provides two primary protections to pregnant employees and employees with pregnancy related medical conditions: Reasonable Accommodation and protection from Retaliation.
Reasonable Accommodation
Under the PWFA, an employer must provide reasonable accommodation to an employee who has known limitations related to pregnancy or a pregnancy related medical condition unless doing so would cause "undue hardship" to the employer.
To begin the accommodation process, an employee should contact her employer and request an accommodation by identifying her limitations related to pregnancy or a related medical condition and communicating a need for an adjustment or change at work. The medical condition that leads to the request, whether physical or mental, can be modest or minor. It need not rise to the level of a disability under the ADA .
Once the employer knows about the employee's condition, the employer has an duty to engage with the employee in an "interactive process" to determine how the employer can effectively accommodate the employee. Some potential accommodations, to name only a few, include:
remote work
parking changes
part-time work
flexible hours
temporarily suspending certain job duties
additional breaks to rest, eat, drink, or use the restroom
change to environment that allows the employee to alternate between sitting and standing.
Employers and employees can be creative: potential accommodations are limited only by reasonableness, effectiveness and undue hardship to the employer. Undue hardship is "significant difficulty or expense" for the operations of the employer.
Under the PWFA, an employer cannot force an employee to accept an accommodation without first engaging with the employee in this process. Even then, an employer cannot force an employee to take leave, whether paid or unpaid, accept a reduced work schedule, or stop traveling as a proposed accommodation.
Lastly, unlike an accommodation under other laws (such as the ADA), the PWFA provides that an employee does not need to be able to perform all the essential functions of her job if the inability to do so is "for a temporary period" and an accommodation would allow her to perform the essential functions in "the near future." The EEOC defines "in the near future" as 40 weeks and "temporary" as "lasting for a limited time, not permanent, and may extend beyond "the near future."
Both the failure to engage in the interactive process, and the failure to provide a reasonable accommodation can expose an employer to liability.
Retaliation Prohibited
The PWFA also prohibits adverse employment actions (threats, coercion, interference, intimidation, harassment, discipline, demotion, termination) in retaliation for an employee exercising her rights under the PWFA. This includes not only the employee exercising her own rights under the PWFA, but also for reporting or opposing unlawful discrimination related to pregnancy and pregnancy related medical conditions.
The PWFA limits an employer's ability to require supporting medical documentation for an accommodation request to situations where the same is "reasonable." Otherwise, an employer must rely on the employee's word as to her current situation and needs. Where the known limitation and need for accommodation are "obvious" the employer cannot require medical record documentation. Requesting such records when the limitation and need is obvious, or when it would be unreasonable to do so, would likely constitute a retaliatory act.
Contact Us if you believe your rights have been violated as a result of pregnancy or a pregnancy related medical condition, including a failure to provide reasonable accommodation or retaliation for exercising your rights.
Additionally, the Pregnant Workers Fairness Act (PWFA) expands long-overdue protections to ensure that workers experiencing pregnancy, childbirth, or related medical conditions have the right to reasonable accommodations in the workplace. The law applies to incidents that occurred on or after June 27, 2023.
Under the PWFA it is unlawful for an employer to:
(1) not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
(2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in section 2000gg(7) of this title [section 102(7)];
(3) deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;
(4) require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or
(5) take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.
Among those listed above, the PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. This law builds upon existing protections against pregnancy discrimination under Title VII of the Civil Rights Act.
The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer.
The EEOC has educational resources, including tips for workers to request accommodations, a “Know Your Rights” video series, and a revised “Know Your Rights” poster required to be posted in most workplaces. Previously released resources include a Q&A on “What You Should Know about the Pregnant Workers Fairness Act,” an infographic for employers, and an informational poster about the PWFA for healthcare providers’ offices.