The Pregnancy Discrimination Act – What You Need to Know

Even though workplace pregnancy discrimination has been illegal since 1978 and most states have laws on the books forbidding employer bias against pregnant women, many women report they have experienced discrimination in the workplace.

About 20% of women — 1 in 5 working mothers — say they were subjected to workplace pregnancy discrimination. A slightly higher number (23%) of working women say they have considered leaving their jobs due to:

• A lack of reasonable accommodations
  OR
• Fear of discrimination during pregnancy

Equally disturbing, 1 in 5 working women (21%) said they were afraid to tell their employers about their pregnancies because of fears of discrimination or retaliation.

More than 20% of working women are afraid to tell their employers about their pregnancies.

The numbers were reported by the Bipartisan Policy Center, a Washington, D.C.-based think tank, and come from a national sample of 2,200 adults surveyed by Morning Consult in February 2022.

Bias against working mothers is on the federal regulators’ radar. In announcing a 2021 lawsuit against automaker Ford Motor Company, an attorney for the U.S. Equal Opportunity Commission (EEOC) said, “Enforcing the ban on pregnancy discrimination is critical to ensuring equal employment opportunities for women and an important priority for the EEOC.”

What is pregnancy discrimination?

Pregnancy discrimination involves treating a woman — whether a job applicant or an employee — unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

“The issues most commonly alleged in pregnancy discrimination charges have remained relatively consistent over the past decade,” according to EEOC guidance on pregnancy discrimination and enforcement.

The majority of charges include:

• Allegations that a worker’s employment was terminated because of pregnancy
• Claims of disparate terms and conditions of employment based on pregnancy, such as closer scrutiny and harsher discipline than that administered to non-pregnant employees
• Suspensions pending medical releases
• Medical examinations that were not job-related or consistent with business necessity
• Forced leave

What is the Pregnancy Discrimination Act?

Discrimination against pregnant employees can result in a lawsuit.

To fight pregnancy discrimination, Congress amended Title VII of the Civil Rights of 1964 by adding the Pregnancy Discrimination Act (PDA) in 1978 to clarify that discrimination based on pregnancy, childbirth, or related medical conditions is a form of prohibited sex discrimination.

According to the EEOC, the PDA has two fundamental requirements:

• An employer may not discriminate against an employee based on pregnancy, childbirth, or related medical conditions.
• Employers must treat women affected by pregnancy, childbirth, or related medical conditions the same as other persons not so affected but similar in their ability or inability to work.

Under the PDA, employers cannot discriminate against pregnant women when it comes to:

• Hiring and firing practices
• Pay, promotions, and other compensation
• Job assignments or training opportunities
• Benefits such as leave and health insurance

The federal law applies to all employers having at least 15 employees.

Hiring bias

Pregnancy cannot be a factor in determining whether to hire or fire a worker. An employer cannot refuse to hire a woman because of her pregnancy-related condition as long as she can perform the primary functions of her job.

A Colorado personal injury law firm agreed to pay $30,000 in 2018 to settle a pregnancy discrimination lawsuit filed by the EEOC. The federal agency alleged that the firm fired a legal assistant the day after she disclosed her pregnancy, just 10 days after it hired her. The EEOC said the law firm explained that it let her go because she did not disclose the pregnancy during the job interview.

You cannot fire someone for not disclosing pregnancy during the job interview.

In addition, employers cannot rely on the preferences of others in denying work to pregnant women. According to the EEOC, an employer cannot refuse to hire a worker because of the prejudices of co-workers, clients, or customers.

Requirements for employees

According to the EEOC, job applicants do not have to tell prospective employers that they are pregnant.

An Illinois nursing home violated both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 when it required women to disclose their pregnancies, the EEOC charged in a 2021 lawsuit. The EEOC said that other employees were not required to disclose medical information.

Leave and the PDA

An employer that allows temporarily disabled employees to take disability leave or leave without pay must also allow a pregnant person to do the same.

A Tacoma, Washington-based security company agreed to pay $375,000 to settle a pregnancy discrimination lawsuit. In this incident, they allegedly fired a supervisor on the Seattle Tunnel Project shortly after she told her manager she would need leave due to pregnancy.

In addition to the PDA, maternity leave might be covered under the Family and Medical Leave Act (FMLA). The FMLA requires that new parents, including foster and adoptive parents, be provided up to 12 weeks of unpaid leave to care for a child.

The PDA and temporary disability

The EEOC has stated that if an employee is temporarily unable to perform job duties due to a medical condition related to pregnancy or childbirth, the employee must be treated in the same way [the employer] treats any other temporarily disabled employee. For example, “the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees,” the EEOC has noted.

Light duty

Claims of discriminatory treatment aimed at pregnant women often come up when an employer denies light duty to a pregnant worker but has granted it to other workers. For example, those injured on the job or who have disabilities under the Americans with Disabilities Act (ADA).

If light-duty is an option for others, such as those undergoing cancer treatment, then the refusal to give the option to pregnant women can be actionable under the PDA.

A California grocer agreed to pay $2.8 million to settle a class-action lawsuit claiming that it violated California law by refusing to accommodate pregnant workers even though it allowed temporarily disabled employees to go on light duty.

You cannot single out pregnant women or treat them differently to other temporarily disabled employees.

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. The EEOC filed a lawsuit in June 2021 against an Illinois nursing home, alleging it required pregnant employees to disclose their pregnancies and that it required pregnant employees to procure doctor’s notes saying they could work without restriction, even if they hadn’t asked for accommodation.

Other laws might come into play. Impairments resulting from pregnancy, such as gestational diabetes, may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation for a disability related to pregnancy unless the employer can prove that doing so would provide an undue hardship.

Equal access to health insurance, benefits

Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as expenses for other medical conditions. You cannot impose additional or larger deductibles.

As for other types of benefits, employers must treat employees with pregnancy-related disabilities the same as other temporarily disabled employees for:

• Accrual and crediting of seniority
• Vacation calculation
• Pay increases
• Temporary disability benefits

PDA does not cover pregnancy accommodation

While the PDA forbids discrimination against pregnant workers, it does not require that employers accommodate pregnant workers. Indeed, no federal law at present requires that employers accommodate pregnant workers. Although there is a federal bill requiring such consideration, the measure hasn’t received much consideration in the U.S. Senate.

However, several states have moved forward. They mandate that employers do more than refrain from discriminating against pregnant workers. They even go one step further to accommodate pregnant workers. About 29 states require employers to accommodate expecting working women, according to Workplace Fairness.

One such state is Kentucky. The Blue GrassState’ss pregnancy accommodation law went into effect in 2019. Employers must provide pregnant workers with things including:

• More frequent or longer breaks
• Comfortable seating
• Private space that is not a bathroom for expressing breast milk

What employers should do

The EEOC recommends that employers treat pregnant employees the same as they would temporarily disabled employees. “If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her the same way any other temporarily disabled employee is treated,” the EEOC recommends. For example, non-pregnant employees get time off for physical therapy appointments, pregnant workers should get time off for pregnancy-related appointments.

Compliance training for pregnancy discrimination

Compliance training for supervisors and managers is also necessary. Businesses should train managers and supervisors on the PDA’s requirements and relevant local and state laws. Forty-seven states and Washington, D.C., have approved laws that forbid discrimination against pregnant workers.

Employers can also offer training on workplace bias, which may have helped in the case dealing with the Washington-based security company. It was alleged that a supervisor told the plaintiff that security work is unsuitable for a pregnant woman.

Cynthia Thomas Calvert, a family discrimination law attorney and principal at Workforce 21C says that without being aware of it, negative assumptions are made about the value of pregnant employees.

Assumptions include that they:

• Will be sick too much
• Will take long leaves
• Won’t be as competent
• Won’t be as committed to their jobs
• Will be lazy
• Are likely to quit

“To make matters worse, after they have their babies, they will be mothers,” Thomas Calvert continues. “That triggers a set of different (but related) negative assumptions about dependability and commitment.”

Pregnancy Discrimination Act – Final thoughts

There are multiple legal protections for pregnant workers, but claims of discrimination and retaliation still occur. Employers can avoid pregnancy labor law violations by:

• Providing training
• Adopting policies that forbid workplace bias aimed at expecting mothers