What Business Owners Should Know about Pregnancy Discrimination

A police chief relegates all pregnant officers to “desk duty” during their third trimesters. A supervisor repeatedly teases his pregnant employee about the size of her belly. A business owner won’t hire young women for jobs that require extensive travel because they might soon have children and become unable to fulfill those responsibilities. All of these scenarios are examples of pregnancy discrimination, and they are against the law.

Pregnancy Discrimination Puts Women and Families at an Economic Disadvantage

Although federal law has forbidden discrimination based on pregnancy, childbirth, and related conditions for 40 years now, it is still a major problem according to the Equal Employment Opportunity Commission (EEOC). Between 1992 and 2010, the number of pregnancy discrimination allegations swelled from 3,385 to 6,119 per year. That’s an 80 percent increase.

Some employment experts think that the increasing rates of discrimination might be related to the sluggish economy. Since so many families have limited pay and job opportunities, more women are forced to work further into their pregnancies or go back to work sooner after giving birth. Today, the economy has improved somewhat, and the EEOC now receives about 3,000 to 3,500 pregnancy discrimination complaints per year.

What does this mean for women and families? It’s simple. Employers often discriminate against all women of childbearing age because they might become pregnant soon. Women are more likely to lose out on promotions, pay raises, and career opportunities because employers perceive them as less dedicated to their jobs, or less able to perform.

In 40 percent of families with children, the mother is the primary income earner.

According to the Department of Labor, women make up 47 percent of the US workforce. What’s more, 70 percent of mothers with children under 18 work outside the home. Of those working mothers, more than 75 percent work full time. And in 40 percent of families with children, the mother is the primary income earner. That’s a large portion of working Americans and their families who are losing out on income and opportunity due to discrimination.

What Is Pregnancy Discrimination?

According to the Pregnancy Discrimination Act of 1978, it is illegal for an employer to discriminate “on the basis of pregnancy, childbirth, or related medical conditions.” This means that employers can’t make any decisions about hiring, firing, disciplining, or otherwise managing an employee or job applicant based on that person’s pregnancy status.

Let’s unpack that a bit. To some employers, this might look like it means that they can’t fire or refuse to hire a person because she’s pregnant. But it’s not that simple. Here are a few examples of illegal pregnancy discrimination in the workplace:

Harassing an employee for being pregnant.

Even after decades of pregnant women telling the world that they don’t appreciate jokes or derogatory comments about their bodies, there are still plenty of people who continue to think they’re funny and harmless. But the truth is that these comments are offensive. And if you say them repeatedly at work to a pregnant woman, they constitute illegal harassment.

And pregnancy harassment isn’t limited to jokes. If a supervisor or co-worker repeatedly comments on a woman’s pregnancy status in a way that creates a hostile work environment, that is harassment. For example, a manager might “hint” to an employee that her pregnancy is making it harder for her to do her job. Perhaps the manager hopes that with enough hints, the employee will decide to quit or transfer to another position.

Some employers may reason that they are protecting the woman’s health or the health of her baby by urging her to choose a job that’s less stressful or physically demanding. But this behavior is illegal for the same reason that employers can’t fire an employee for being pregnant. It is up to the pregnant woman and her health care provider to decide what’s best for her health. This is not for her employer to decide.

Refusing to hire a pregnant person (or a woman who you believe might become pregnant).

You are not allowed to make decisions about hiring or firing based solely on a person’s pregnancy status. And just as importantly, refusing to hire a woman because you assume she will become pregnant in the future is also illegal. 

This applies even if you think that a particular job is not well-suited for a pregnant woman. Some employers might think that a pregnant woman would not be able to travel, lift heavy objects, or work long hours. But that’s not necessarily true. If a person is able to fulfill her major job responsibilities, you can’t refuse to hire her because she’s pregnant or may become pregnant. You also can’t pass over her application because she’s recently given birth.

Making other decisions based on pregnancy.

Making decisions about promotions, trainings, pay, layoffs, firing, job assignments, or benefits based on pregnancy or related conditions is absolutely a form of pregnancy discrimination. For example, you can’t decide that you won’t put an employee on a long-term project because she might become pregnant and take maternity leave before the project is over. You also can’t force a pregnant woman to accept a transfer to a less physically-demanding position during her pregnancy. Or limit her access to your company’s health plan because you believe her medical costs will be high. These are all forms of illegal discrimination.

Refusing to provide reasonable accommodations for pregnant and breastfeeding women.

Sometimes, employees become temporarily disabled. What would you do if your administrative assistant developed carpal tunnel syndrome, or your construction foreman needed a hip replacement? Provide light duty or supportive equipment? Allow them to take disability leave and return to their jobs after they recover?

Whatever you would do for another temporarily disabled employee, the law requires you to also do for an employee who is temporarily disabled because of pregnancy.
In addition, the Affordable Care Act requires employers with 50 or more employees to provide new mothers with a safe, private place to pump milk that is not a bathroom. You must also allow the employee enough break time to pump.

Undue restrictions on pregnancy-related medical leave.

If your employee goes on maternity leave, you’re required to hold her job for up to 12 weeks, or allow her to return to another job with similar pay and other conditions.

Do you allow your employees to take medical leave when they are sick or injured? If so, you must also allow women to take medical leave during pregnancy and after childbirth.

You also can’t put special restrictions on pregnancy-related medical leave that you don’t have in place for other employees. For example, you can’t say that a woman must use up her sick leave before taking temporary disability leave, or that she must provide documentation from a doctor, unless you also require the same thing from every employee who takes medical leave.

Furthermore, if your employee goes on maternity leave, the Family and Medical Leave Act requires you to hold her job for her for up to 12 weeks, or allow her to return to another job with similar pay, benefits, and other conditions.

Retaliating against an employee for filing a pregnancy discrimination complaint.

This might be one of the most common forms of pregnancy harassment. According to the EEOC, many employers choose to fire, demote, or otherwise “punish” pregnant women after they complain about pregnancy harassment. It’s not surprising; people often feel compelled to” strike back” against someone who lodges a complaint at them. But filing a pregnancy discrimination complaint is perfectly legal, and vindictive behavior towards that individual is not.

The Bottom Line

Pregnancy discrimination is a major problem in the US workforce. Despite advances in women’s economic parity, the EEOC still receives thousands of reports of pregnancy discrimination every year. Not only is this discrimination illegal, but it also hurts women and families. Let’s work together to put pregnancy discrimination behind us for good.