Pregnancy discrimination is defined as discrimination on the basis of pregnancy, childbirth, and related conditions. Pregnancy discrimination can include all of the following actions by an employer:
- refusing to hire a pregnant applicant;
- firing or demoting a pregnant employee;
- denying the same or a similar job to a pregnant employee when she returns from a pregnancy-related leave;
- treating a pregnant employee differently than other temporarily disabled employees; and
- failing to grant a male employee health insurance coverage for his wife's pregnancy related conditions if a female employee's husband has comprehensive health insurance coverage through the same company plan.
Under the law, pregnancy is considered a temporary disability, as are related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any other related medical condition. Your employer must therefore give pregnant employees the same treatment and benefits that it gives to employees with other temporary disabilities.
Here are some examples of potentially illegal pregnancy discrimination:
- During an interview, a job placement agency asks an applicant how many children she has and if she is planning to get pregnant again. The applicant says she is four months pregnant. The agency tells her to come back after she has her child and is ready to work.
- A female employee tells her boss at work that she is pregnant. Her boss fires her after learning the news, even though she is still able to work for several more months.
- A pregnant worker at a fast food restaurant asks her boss if she can stop lifting heavy boxes during her pregnancy. The boss says no, even though another employee did not have to lift boxes at work while recovering from surgery. The pregnant worker is forced to quit her job.
- A pregnant worker needs to take time off to visit her doctor for prenatal care. She is docked and eventually disciplined for missing time from work, even though other workers who need ongoing medical treatment are not docked nor disciplined.
The federal laws which prohibit pregnancy discrimination and provide for disability and parenting leaves are Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978, (see section 2000e(k) of the law for the specific language concerning pregnancy) and the Family and Medical Leave Act of 1993 .
Title VII covers many forms of discrimination you may encounter because of your sex in decisions about hiring, firing, work assignments and conditions, promotions, benefits, training, retirement policy and wages. In 1978, Congress passed the Pregnancy Discrimination Act (P.D.A.) (see §2000e(k)) amending Title VII to clarify that discrimination based on pregnancy is a form of sex discrimination. Title VII prohibits employers from treating pregnant women or temporarily physically disabled new mothers differently from other temporarily sick, injured or disabled employees.
In 1993, Congress enacted the Family and Medical Leave Act (FMLA) . The FMLA guarantees an employee, male or female, who has been working at least a year for a company with 50 or more employees the right to job-protected, 12-week, unpaid leave to recover from a serious medical condition -- including pregnancy -- or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. Under the FMLA, you have the right to take this 12 week unpaid leave every year, and to have your health benefits maintained during your leave. The FMLA also guarantees that at the end of the leave you will be given the same job you left or another job equivalent in pay, benefits and other terms and conditions. For more information about FMLA, see our page on family/medical leave.
Depending on the type of discrimination, pregnancy discrimination may violate Title VII, the Family and Medical Leave Act, or both laws. This also depends on whether an employee qualifies for protection under each law and whether leave is involved. The laws of some states also make it illegal to discriminate on the basis of pregnancy, and some state laws have different requirements than Title VII or the FMLA for awarding pregnancy leave. For more information, please see our page on state pregnancy discrimination laws.
Title VII covers pregnant women whose physical condition qualifies them for disability leave under company policy, and who work for employers with 15 or more employees, labor unions, or employment agencies.
The FMLA covers employees, male or female, who have been working at least a year for employers with 50 or more employees, and allows these employees to take unpaid leave to care for a newborn or newly-adopted child or for certain seriously ill family members, or to recover from their own serious health conditions. For more information about FMLA, see our page on family/medical leave.
Although smaller employers are not required to offer pregnancy or other disability leave under Title VII or the FMLA, they may be required to do so by state law. For more information, please see our page on the minimum number of employees needed to file a claim under your state law. Or, the company itself may choose to offer paid or unpaid disability leave, either voluntarily or through a union contract.
If you are represented in the workplace by a union or if you are a union official, you should keep in mind that a number of aspects of FMLA leave are mandatory subjects of bargaining. These bargainable issues include: 1) pay for employees during FMLA leave; 2) health insurance coverage for employees on FMLA leave; 3) whether and to what extent an employee must utilize vacation or sick leave prior to using FMLA leave; and 4) which method of calculating required hours worked for FMLA eligibility is used.
An employer cannot refuse to hire you because of your pregnancy-related condition as long as you are able to perform the major functions of your job. An employer cannot refuse to hire you because of its own prejudices against pregnant workers or the prejudices of co-workers, clients or customers. Therefore, an employer cannot ask you if you are pregnant or plan to have children.
If you are still early on in your pregnancy and not showing, you may choose to keep that information to yourself. Even if you volunteer the information or the employer is otherwise aware that you are pregnant, however, an employer cannot legally make hiring decisions based upon that information, but you should also recognize that it could be very difficult to prove that the reason you were not hired was because of your pregnancy.
A pregnancy will eventually start to show, so you may want to notify your employer that you're pregnant as you approach that point. Prior to that point, if you do not require or anticipate any kind of leave for medical visits or pregnancy-related sickness, and are otherwise able to perform the major functions of your job, you may choose not to share that information with your employer.
You may also wish to consult with your employer, its human resources department, company handbook, or your union to determine your company's policies about using sick leave, short-term disability leave, or FMLA leave (if you are eligible). Each type of leave may have different advance notification requirements that you may be required to follow. If advance notification is required in order to utilize leave, you should comply with the notification requirements even though it requires you to disclose your pregnancy.
6. Can my employer prevent me from working while I'm pregnant or require me to take a certain amount of leave?
Although some companies tell pregnant women that they must leave work a specified amount of time before their due date, it is illegal for an employer to force you to go on maternity or disability leave while you are still able to work. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If you have been absent from work as a result of a pregnancy-related condition and you recover, your employer may not require you to remain on leave until the baby's birth. Also, an employer may not have a rule preventing you from returning to work for a predetermined length of time after childbirth.
If you are unable to perform certain aspects of your job, such as heavy lifting or working with toxic chemicals, your employer must accommodate you to the same extent it accommodates other temporarily disabled employees, such as providing “light duty,” shifting certain job duties to other employees, or permitting transfer to a vacant position. For example, if a coworker disabled by a back injury subject to a lifting restriction was shifted to another position not requiring heavy lifting or was given modified job duties such that lifting was no longer required, a pregnant employee should be similarly accommodated.
An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work, but may use any procedure used to screen other employees' ability to work. For example, if an employer requires 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 submit such statements.
7. Can my employer keep me from working in certain areas or doing certain tasks because of health and safety concerns?
No. If you are able to perform the basic functions of your job, and do not request any change in your job duties, you must be permitted to keep doing your job at all times during pregnancy. If you voluntarily request a modification of your job duties, then an employer must treat the request the same as other similar requests made by temporarily-disabled employees.
An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work or to perform certain tasks. However, an employer may use any procedure used to screen other employees' ability to work. For example, if an employer requires its employees to submit a doctor's statement concerning their lifting requirements before being excused from heavy lifting, the employer may require employees affected by pregnancy related conditions to submit such statements.
The law doesn't prohibit employment decisions based on an employee's conduct that may be caused by pregnancy. For example, an employer doesn't have to treat an employee who was late due to morning-sickness any differently or better than an employee who was equally late for a different health reason.
8. Can my employer move me to another position while I am pregnant so as not to offend clients or customers?
No. An employer cannot move you to another position or otherwise change your job because of its prejudices against pregnant workers or the prejudices of co-workers, clients or customers.
If your company grants leave to other temporarily disabled employees, it must also grant you leave for the period of time you are disabled by pregnancy and its related conditions. Unfortunately, if other temporarily disabled workers are not entitled to leave or benefits, then neither are pregnant women or temporarily physically disabled new mothers, unless they are entitled to leave under the FMLA. Nothing in Title VII requires an employer to provide disability leave or pay medical or hospital coverage to any worker.
The law doesn't prohibit employment decisions based on an employee's conduct that may be caused by pregnancy. For example, an employer doesn't have to treat an employee who was late due to morning sickness any differently or better than an employee who was equally late for a different health reason.
If your company grants leave to other temporarily disabled employees, it must also grant you leave for the period of time you are disabled by pregnancy and its related conditions. Unfortunately, if other temporarily disabled workers are not entitled to leave or benefits, then neither are pregnant women or temporarily physically disabled new mothers, unless they are an employee covered by the FMLA. Nothing in Title VII requires an employer to provide disability leave or pay medical or hospital coverage to any worker.
Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. Any leave, seniority, or reinstatement rights other workers get from your employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled.
For more information on leave or reinstatement rights under the FMLA, see our page on family/medical leave.
Any benefits other workers get from your employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled. If employees with conditions such as heart attacks, surgery, etc., receive disability pay, it must also be provided for women who are temporarily disabled due to childbirth. Likewise, when calculating vacation time, seniority, pay increases, or any other tenure-related benefits, an employer may not treat time spent on pregnancy leave differently than time spent on leave for other reasons. If you are eligible for leave under the FMLA, then your employer is required to maintain your health insurance benefits during the time you take FMLA leave.
Any benefits, including paid leave, other workers get from your employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled. If, for example, employees who have heart attacks or surgery receive disability pay, it must also be provided for women who are temporarily disabled due to childbirth.
However, neither Title VII nor the FMLA require an employer to offer paid leave during or after pregnancy. Depending on your company's policies and accumulated leave time, you may be eligible to use sick leave, vacation leave, or other leave time to maintain your salary while you are on pregnancy leave.
If you are represented in the workplace by a union or if you are a union official, you should keep in mind that issues such as whether you can obtain paid leave during pregnancy (whether taken as part of FMLA leave or not) is a mandatory subject of bargaining.
Generally yes, if your employer provides health insurance coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), employer-provided health insurance must cover expenses for pregnancy-related conditions in the same manner as costs for other medical conditions.
Pregnancy-related expenses should be reimbursed exactly 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, increased or larger deductible can be imposed.
Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees. Also, new employees may not be denied pregnancy-related care because they are pregnant when they enroll in the plan.
However, federal law does not require an employer to offer or pay for medical or hospital coverage for employees. So if an employer does not offer health insurance to any or some employees, it is not required to offer coverage to pregnant employees.
Discrimination against a pregnant woman who is unmarried would appear to be a form of pregnancy and/or marital status discrimination. However, some courts have held that religious organizations or organizations working with youth may discriminate against employees who do not subscribe to the organization's principles that have been universally applied to all employees. Since these organizations had specific principles condemning premarital sex, the employers were allowed to terminate unmarried pregnant employees on the basis that they were terminated for engaging in premarital sex. However, to avoid a valid claim of sex discrimination, these employers would need to demonstrate that they do not treat men who are known to engage in premarital sex differently than women who engage in premarital sex who disclose this information by way of their pregnancies.
If you work for a non-religious employer, however, your employer may find it difficult to maintain a legitimate business justification for policies or practices which discriminate against unmarried women who are either pregnant or already have children. The personal religious beliefs of one supervisor would rarely, if ever, be a legitimate basis for discrimination in this situation, especially if other company employees had been treated differently.
According to the EEOC, the governmental agency that enforces Title VII, pregnancy-related benefits cannot be limited to married employees.
There are two types of leave which are often referred to as pregnancy or maternity leave:
- disability leave, which consists of the time a woman is unable to perform work because of pregnancy, childbirth and their aftermath, and
- child care or child-rearing leave, which consists of the time after birth or adoption during which a parent (of either sex) cares for the child.
Obviously, a man would not be eligible for the first type of leave, but may be eligible for the second, depending on eligibility for FMLA or other legally guaranteed leave and/or company policy.
17. I was pregnant, but am no longer pregnant, and need time off to recover. Am I covered by the law?
If you are temporarily physically or mentally disabled by the loss of your pregnancy through, for example, miscarriage or abortion, you would be legally covered to the extent that your employer covers other temporary physical or mental disabilities.
Unfortunately, if other temporarily disabled workers at your company are not entitled to leave or benefits, then neither are women who are or were pregnant. Nothing in Title VII requires an employer to provide disability leave or benefits.
You also may be denied leave if you are not disabled according to your medical provider and you do not have any other form of leave, such as vacation time, that your employer will permit you to take.
18. My employer's medical plan covers most health conditions, but excludes abortion and contraceptive devices and medication. Is this legal?
Under Title VII, health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.
However, the EEOC, the governmental agency enforcing Title VII, has ruled that the law requires employers to provide the same insurance coverage for prescription contraceptives that they do for other drugs, devices, or services that are used to prevent the occurrence of medical conditions other than pregnancy. It is the EEOC's position that because the Pregnancy Disability Act prohibits discrimination against a woman based on her ability to become pregnant, it necessarily covers a health plan's exclusion of prescription contraceptives since they are a means by which a woman may control precisely that ability to become pregnant.
This issue is currently the subject of several lawsuits against employers who refuse to offer contraceptive coverage. So far, a federal court in Seattle has ruled that this coverage is required by law. However, the law in this area is still evolving and will likely be subject to debate until more courts and laws specifically address the issue.
When you request a leave, do so in writing, explaining the reason for leave and how long a leave you need. Keep copies of everything you send and receive from your employer, as well as copies of doctor's notes and any other medical documentation.
If you continue to be denied leave, you may want to file a grievance. If you are a union member, you may be able to file a formal grievance through the union. Try to get a shop steward or other union official to help you work through the grievance process. Some employers have policies for handling a dispute regarding leaves. You may be able to resolve the dispute at your job internally. Find out what the policies are, by looking in your employee manual or other sources of personnel policies. Your company's human resources department may be able to help.
However, even if you file a grievance with your employer, the deadlines to file in court or with an administrative agency still apply, so be sure not to miss them.
The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to an individual's pregnancy in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination. For more information, please see our page on filing a complaint.
The Department of Labor is the agency of the federal government responsible for investigating charges of family and medical leave discrimination in workplaces of 50 or more employees. Some states have their own family and medical leave laws. For more information, please see our page on state family/medical leave laws.
Victims of sex discrimination (including pregnancy discrimination) can recover remedies to include:
- back pay;
- front pay;
- compensatory damages (emotional pain and suffering);
- punitive damages (damages to punish the employer);
- other actions that will make an individual "whole" (in the condition he or she would have been but for the discrimination).
Remedies also may include payment of:
- attorneys' fees;
- expert witness fees; and
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.
Your state law may allow for greater or different remedies than federal law. For more information, please see our page on filing a complaint.
For more information on remedies for a violation of the FMLA, please see our page on family/medical leave.
For more information on filing a complaint for a violation of the FMLA, please see our page on family/medical leave.
For more information on filing a complaint for pregnancy discrimination, select your state from the map or list below.
This page was updated on December 19, 2008