Several federal laws protect against pregnancy discrimination or grant rights to workers based on pregnancy or related medical conditions. These rights and protections may include rights to:
- be free from discrimination, harassment, and stereotypes
- reasonable workplace accommodations, such as job modifications, extended or additional breaks, and leave
- leave for pregnancy, childbirth, related medical conditions, and bonding
- equivalent fringe benefits, such as health insurance.
For example, the Pregnancy Discrimination Act (PDA), applies to employers with 15 or more workers. It protects women from discriminatory actions based on pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act (FMLA), which applies to employers of 50 or more workers, provides leave entitlements to pregnant workers. Pregnancy itself is not a disability. Some pregnant workers may be eligible for additional protection under the Americans with Disabilities Act (ADA), due to relating conditions. The ADA applies to employers with 15 or more workers.
Maternity and Pregnancy Discrimination
In 1978, the PDA amended Title VII to clarify that discrimination based on sex also includes discrimination based on pregnancy.
Fundamental Requirements of the PDA
The PDA, which covers employers with 15 or more workers, added two fundamental requirements to the law:
- Covered employers may not discriminate against an employee or applicant based on her pregnancy, childbirth, or related medical conditions
- Women affected by pregnancy must receive similar treatment to other persons who have a similar ability or inability to work.
The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits. Pregnant workers have protection from discrimination based on current pregnancy, past pregnancy, and potential pregnancy.
Equal Employment Opportunity Commission (EEOC) Guidance on Discrimination
In July 2015, the EEOC issued revised guidance addressing pregnancy discrimination. Though EEOC guidance is not regulation, it indicates how existing laws will be interpreted and enforced. Employers should consider the advice in developing and applying policies related to pregnant workers and accommodations. EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Scope of pregnancy.
The EEOC’s 2015 guidance makes it clear that Title VII prohibits discrimination based on “the whole range of the childbearing process.” The legislation includes not only current pregnancy but also past, potential, or intended pregnancy. Also included are medical conditions related to pregnancy or childbirth.
Reproductive risk, fertility, and childbearing.
Gender-specific policies restricting women from specific jobs are generally prohibited. For example an employer banning a fertile woman from a job with exposure to harmful chemicals would constitute discrimination. An employer’s concern about risks to a pregnant employee will rarely if ever, justify such restrictions. An employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant.
An employee or applicant may not receive discrimination because of a past pregnancy, childbirth, or related medical condition. For example, an employer would violate the PDA by terminating an employee shortly after she returns from medically-related pregnancy leave.
Lactation and breastfeeding.
Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may constitute discrimination. An employee must have the same freedom to address lactation-related needs that she would have to address other similarly limiting medical conditions. For example, suppose an employer allows employees to change their schedules or use sick leave for routine doctor appointments. In that case, they must allow female employees to adjust their schedules or use sick leave for lactation-related needs.
Termination of pregnancy.
The PDA also protects women from discrimination related to the termination or loss of a pregnancy. This legislation includes having or contemplating an abortion. Employees receive protection from discrimination for deciding not to terminate a pregnancy.
Bona Fide Occupational Qualification (BFOQ) defense.
In some instances, employers may claim that excluding pregnant or fertile women from specific jobs is lawful due to a BFOQ. This defense, however, is too narrow. The employer must show that pregnancy actually interferes with a female employee’s ability to perform the job. This proof must be based on objective, verifiable skills required by the job. Employers have rarely been able to establish a pregnancy-based BFOQ.
The PDA applies to applicants as well as employees. Thus, an employer cannot refuse to hire an otherwise qualified applicant based on her pregnancy-related condition. Discrimination in hiring includes decisions based on stereotypes about or prejudices against pregnant workers or coworkers, clients, or customers’ biases. The employer should concentrate on the required training period, physical requirements, and specific functions of the job for all applicants. An employer should not focus on whether an applicant is pregnant, has children, or is of childbearing age.
Concerns for Health and Safety
Even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited. For instance, it is unlawful for an employer to reassign a pregnant employee to a lower-paying job involving fewer deadlines due to the assumption that the stress in her current job would increase pregnancy risks. Employers should never require a pregnant employee to take leave, light duty, or other work accommodations that she does not want or request.
Two federal laws, the PDA and the ADA, may require employers to provide reasonable accommodations to pregnant workers under two federal laws: the PDA and the ADA.
EEOC Guidance on Accommodations
EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues is available online at eeoc.gov.
Light duty as a benefit. Specifically, the EEOC guidance restates that an employer is required, by the PDA, to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave and leave without pay.
Reasonable Accommodations under the ADA
A pregnant employee may also be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment.
Examples of reasonable accommodations.
Some examples of reasonable accommodations that may be necessary for a disability due to pregnancy-related impairments include:
- redistributing marginal functions that the employee is unable to perform due to the disability
- altering an essential or marginal job function (e.g., standing, climbing, lifting, or bending)
- modifying workplace policies
- purchasing or modifying equipment and devices
- modifying work schedules and granting leave (which may be unpaid leave if the employee does not have accrued paid leave)
The EEOC also states that temporary assignment to a light-duty position may be a reasonable accommodation for a pregnancy-related condition that constitutes an ADA-protected disability. For example, if a pregnant employee’s physician places lifting restrictions on the employee and certifies that she should not lift or push more than 20 pounds due to her pregnancy-related condition, a light-duty position may be appropriate for that employee.
Pregnancy and the ADA
The ADA defines the term “disability” as an impairment that substantially limits one or more major life activities. Although pregnancy itself is not an impairment within the meaning of the ADA, some pregnant workers may have impairments related to their pregnancies.
Pregnancy-related impairments. Sone impairments of the reproductive system may make a pregnancy more difficult and, thus, may necessitate certain physical restrictions to enable a full-term pregnancy or may result in limitations following childbirth. Impairments involving other major bodily functions can also result in pregnancy-related limitations.
Workers may be entitled to leave for pregnancy, conditions related to pregnancy, or child bonding under the antidiscrimination provisions of laws such as the ADA and PDA or under the leave requirements of the FMLA.
FMLA and the birth of a child.
Under the FMLA, bonding leave for the birth of a child is available to either men or women.
There are some special requirements and exceptions for the birth of a child:
- Leave for the birth of a child must occur within 12 months of the date of birth.
- An employer is not required by the FMLA to grant intermittent or reduced leave to eligible employees to care for their newborn. Employers, however, may elect to do so. However, if the mother has a serious health condition in connection with the birth of her child, or if the newborn child has a serious health condition, the employer’s consent to intermittent or reduced leave is not required.
- Employees can take as much or as little FMLA bonding leave time as they want (subject, of course, to the 12-week maximum period) and need not provide any certification. Leave for birth is available automatically and does not relate to any medical need of either the parent or the newborn child.
Pregnancy Discrimination Act (PDA).
Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:
- May not fire a pregnant employee for being absent if her absence falls under the employer’s sick leave policy
- Can not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions
- May not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
- Must allow an employee who is temporarily disabled because of pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.
An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave. If the pregnant employee used leave under the FMLA, the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
Under the PDA, leave related to pregnancy, childbirth, or related medical conditions may be limited to women affected by those conditions. However, if general parental leave is offered, this leave must be provided to similarly situated men and women on the same terms.
Employer may not require leave
An employer may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee’s best interests.
Pregnancy and Benefits
Federal law does not require employers to provide healthcare insurance for employees. If the employer offers insurance however, it must cover expenses for pregnancy-related conditions on the same basis as for other medical conditions.
Terms and conditions of coverage. Employers that have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy.
Medical expenses for services. The employer’s health insurance plan may not impose limitations applicable only to pregnancy-related medical expenses for any services. The plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy.
Insurance for expenses arising from an abortion is not required except where the life of the mother would be endangered if the fetus were carried to term or where medical complications have arisen from an abortion.
In the area of fringe benefits, employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees. In other words, a woman unable to work for pregnancy-related reasons is entitled to sick leave and other benefits on the same basis as employees who are temporarily disabled for other medical reasons and unable to work.
Lactation and Breastfeeding
As noted above, because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may constitute discrimination. Additionally, the Fair Labor Standards Act (FLSA) requires employers to provide reasonable break time and facilities for nursing mothers.
FLSA Requirements for Nursing Mothers
Section 4207 of the Affordable Care Act (ACA) requires employers to provide reasonable break time for a covered employee to express breast milk for her nursing child for at least 1 year after the child’s birth.
Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to express breast milk. The Department of Labor (DOL) has published a Fact Sheet providing general information on the break time requirement for nursing mothers.
Compensation for breaks
The FLSA does not require employers to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide paid breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.
The ACA’s amendment to the FLSA regarding breastfeeding does not apply to white-collar exempt employees (29 U.S.C. 213(a)) or certain employees within particular industries or individuals that hold specific positions (29 U.S.C. 213(b)).
To the extent employers choose to provide these rest breaks to salaried, exempt employees, they should not seek to make deductions from salaries for lactation breaks. Salaried, exempt employees generally must receive their full salary for any week in which they perform work, regardless of the quantity of work they provide. Employers with fewer than 50 employees are also not subject to this requirement if it would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer’s business. These provisions do not preempt a state law that provides greater protections to employees.
Frequency and duration. According to the DOL, the frequency of breaks needed to express breast milk varies. As a general guideline, the DOL states that nursing mothers typically will need breaks two to three times during an 8-hour shift.
Amenities for a lactation break room. A bathroom, even if private, is not a permissible location for lactation facilities.
Where practicable, employers should make a room available for use by employees taking breaks to express milk. When it’s not practicable to provide a room, an employer can create a space with partitions. Any windows in the designated room or space should be covered to ensure the space is shielded from view.
An employer can avoid liability under the federal and state laws above by undertaking the following best practices:
- Effectively train managers on applicable laws, workplace policies, and how to respond to requests for assistance and accommodation.
- When complaints occur, respond promptly and effectively.
- Implement strong policies against pregnancy discrimination and harassment.
- Evaluate leave policies to ensure restrictive practices do not discriminate on the basis of pregnancy or related medical condition.
- Similarly evaluate any workplace accommodation policies, such as those granting light duty or job modification. Make it clear, through policies and practice, that these and other reasonable accommodations are available to workers with pregnancy-related impairments.
- Never require a pregnant employee to take leave, light duty, or other work accommodations that she does not want.
- Check state and local laws for additional requirements.