The federal Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964.  Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII.  Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.

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If you are pregnant, have been pregnant, or may become pregnant, and if your employer has 15 or more employees, you are protected against pregnancy-based discrimination and harassment at work under federal law.  You may also have a legal right to work adjustments that will allow you to do your job without jeopardizing your health.

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An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of her job.  An employer cannot refuse to hire her because of its prejudices against pregnant workers or because of the prejudices of co-workers, clients, or customers.  The PDA also forbids discrimination based on pregnancy when it comes to any other aspect of employment, including pay, job assignments, promotions, layoffs, training, fringe benefits, firing, and any other term or condition of employment.

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An employer may not single out pregnancy related conditions for medical clearance procedures that are not required of employees who are similar in their ability or inability to work.  For example, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy related conditions to do the same.

Pregnant employees must be permitted to work as long as they are able to perform their jobs.  If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby's birth.  Nor may an employer have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.  

Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay must allow an employee who is temporarily disabled due to pregnancy to do the same. Employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave.

Further, under the Family and Medical Leave Act (FMLA) of 1993, enforced by the U.S. Department of Labor, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid, or paid if the employee has earned or accrued it) that may be used for care of the new child.  To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees. 

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If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay.

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Additionally, impairments resulting from pregnancy 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, absent undue hardship (significant difficulty or expense).  For example, an employer may be required to provide modified duties for an employee with a 20-pound lifting restriction stemming from pregnancy related sciatica, absent undue hardship. 

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Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as expenses for other medical conditions.  The PDA specifies, however, that insurance coverage for expenses arising from abortion is not required, except where the life of the mother is endangered or medical complications arise from an abortion. 

Pregnancy related expenses should be reimbursed in the same manner as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charge basis. The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions.  No additional or larger deductible can be imposed.

Under Title VII, benefits can be denied for medical costs arising from an existing pregnancy if a health insurance plan excludes benefit payments for pre-existing conditions.  Other laws, however, may apply to the coverage of pre-existing conditions.

Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

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If an employer provides any benefits to workers on medical leave, the employer must provide the same benefits for those on medical leave for pregnancy related conditions. Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

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Another federal law that applies to post-birth mothers is the Patient and Affordable Care Act which amended Section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide: 

• a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

• 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 an employee to express breast milk.

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An employer shall not be required to compensate an employee receiving reasonable break time for any work time spent for such purpose.  Furthermore, an employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

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Nothing in this federal law shall preempt a State law that provides greater protections to employees than the protections provided for under the FLSA.  

                                                                                                         Common FAQ:

Q:  If an employer knows that an employee is pregnant or may become pregnant, could the employee get fired?

A:  No. Under the PDA, employers are not allowed to discriminate against you based on the fact that:

• you are pregnant;

• you were pregnant;

• you could become pregnant, or intend to become pregnant;

• you have a medical condition that is related to pregnancy; or

• you had an abortion, or are considering having an abortion.

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In general, this means that you cannot be fired, rejected for a job or promotion, given lesser assignments, or forced to take leave for any of these reasons.  An employer does not have to keep you in a job that you are unable to do or in which you would pose a significant safety risk for others in the workplace.  However, your employer cannot remove you from your job or place you on leave because it believes that work would pose a risk to you or your pregnancy. 

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​Q:  What if I am being harassed because of pregnancy or a pregnancy-related medical condition?

Harassment based on pregnancy or a pregnancy-related medical condition is not allowed under the PDA and ADA.  You should tell your employer about any harassment if you want the employer to stop the problem.  Follow your employer's reporting procedures if there are any.  If you report the harassment, your employer is legally required to take action to prevent it from occurring in the future.

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Q: What can an employee do if they are having difficulty doing their job because of pregnancy or a medical condition related to their pregnancy?

A:  The employee may be able to get an accommodation from the employer that will allow the employee to do their regular job safely."  Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home. You may be able to get an accommodation under the PDA if your employer gives accommodations to employees who have limitations that are similar to yours, but were not caused by pregnancy. 

You may be able to get an accommodation under the ADA if you have a pregnancy-related medical condition that meets the ADA definition of "disability."  A condition meets the definition if it would, when left untreated, "substantially limit" one or more major life activities (e.g., lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating) or major bodily functions (e.g., digestive, genitourinary, bowel, bladder, neurological, circulatory, or cardiovascular functions).  A condition does not have to be permanent or severe, or result in a high degree of functional limitation, to be "substantially limiting."  It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them.  If your symptoms come and go, what matters is how limiting they would be when present.

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You don't need to have a particular accommodation in mind before you ask for one, though you can ask for something specific.  However, you should know that the ADA doesn't require your employer to make changes that involve significant difficulty or expense.  Also, if more than one accommodation would work, the employer can choose which one to give you.

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Q:  What if there's no way that the employee can do their regular job, even with an accommodation? 

A:  First, if the employee is told by a health care provider that they cannot do their job safely and, for example, need light duty or can't do their job because of a limitation or restriction, the employee may want to make sure that it's really true.  The health care provider may not have considered the possibility that an accommodation would allow the employee to do their regular job safely. 

Things like reduced workloads and temporary reassignments often come with reduced pay, but the employer is not allowed to reduce the employee's pay because they need an accommodation to do their regular job. If the employee really cannot do their regular job safely, even with an accommodation, the employee might be able to get altered job duties under the PDA.  Depending on how the employer treats non-pregnant employees with similar limitations, the PDA might require the employer to reduce the employee's workload, remove an essential function of their job, or temporarily assign the employee to a different position if the employer does those things for non-pregnant employees with limitations similar to the employee's.

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Q:  What if the employee cannot work at all because of their pregnancy? 

A:  If the employee cannot work at all and they have no paid leave, the employee still may be entitled to unpaid leave as an accommodation. The employee may also qualify for leave under the Family and Medical Leave Act, which is enforced by the United States Department of Labor. 

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Q:  What should an employee do if they need an accommodation, light duty, or leave because of their pregnancy?

A:  The employee should start by telling a supervisor, HR manager, or other appropriate person that they need a change at work due to pregnancy.  The employee should inform their employer if the source of their problem at work is a pregnancy-related medical condition, because they might be able to get an accommodation under the ADA.

An employer cannot legally fire the employee, or refuse to hire or promote the employee, because they asked for an accommodation, or because they need one.  The employer also cannot charge the employee for the costs of an accommodation.  Employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, so it may be better to ask for an accommodation before any problems occur or become worse.

Under the ADA, the employer may ask the employee to submit a letter from their health care provider documenting that they have a pregnancy-related medical condition, and that they need an accommodation because of it. The health care provider might also be asked whether particular accommodations would meet the employee's needs.  Employees can help their health care provider understand the law of reasonable accommodation by bringing a copy of the EEOC publication Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work to their appointment.

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Q:  What should I do if I think that my rights have been violated?

A:  The Equal Employment Opportunity Commission (EEOC) will help an employee to decide what to do next, and conduct an investigation if the employee decides to file a charge of discrimination.  The employee must file a charge within 180 days of the alleged violation in order to take further legal action (or 300 days if the employer is also covered by a state or local employment discrimination law), so it is best to begin the process early.  It is illegal for the employer to retaliate against the employee for contacting the EEOC or filing a charge.

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If you have any further questions or need additional information about pregnancy or maternity discrimination, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.