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Your Rights Pregnancy Discrimination

Outten & Golden LLP

Giskan Solotaroff Anderson & Stewart LLP

Pregnancy discrimination in the workplace occurs when an employer discriminates on the basis of pregnancy, childbirth or related conditions. Pregnancy discrimination may include denial of time off or reasonable accommodations for pregnant employees, firing or demoting a pregnant employee, forced time off or restrictions on work, and any other negative employment action taken because of an employee's pregnancy or related medical condition. Pregnancy discrimination is prohibited underTitle VII of the Civil Rights Act of 1964 and is enforced by the Equal Employment Opportunity Commission (EEOC). To learn more about pregnancy discrimination, read below:

This page provides answers to the following questions:

1. What is pregnancy discrimination?

2. Which federal laws cover pregnancy discrimination?

3. Who is protected under the law?

4. Do I have to tell potential employers I'm pregnant?

5. Do I have to tell my current employer I'm pregnant?

6. Can my employer prevent me from working while I'm pregnant or require me to take a certain amount of leave?

7. Can my employer keep me from working in certain areas or doing certain tasks because of health and safety concerns or to avoid offending clients or customers?

8. Can my employer deny me pregnancy leave or pregnancy related medical leave?

9. I was pregnant, but am no longer pregnant, and need time off to recover. Am I covered by the law?

10. Can my employer deny me accommodations at work due to a pregnancy related medical condition?

11. What happens to my job while I am on pregnancy leave?

12. Is my employer required to pay me while I am on pregnancy leave?

13. What happens to my benefits while I am on pregnancy leave?

14. Does my employer's health insurance have to cover the medical costs of my pregnancy?

15. My employer's medical plan covers most health conditions, but excludes abortion and contraceptive devices and medication. Is this legal?

16. Can I be treated differently because I am unmarried and pregnant?

17. Can men take pregnancy leaves?

18. What do I do if I am being discriminated against or denied leave or accommodations?

19. Who enforces the law?

20. What are the remedies available to me?

21. How can I file a complaint?

22. More Information About Pregnancy Discrimination

1. What is pregnancy discrimination?

Pregnancy discrimination involves treating women (applicants or employees) unfavorably on the basis of pregnancy, childbirth, or 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; or
  • 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, a pregnancy-related condition may be considered a temporary disability, this may include severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any other medical conditions. Your employer must therefore give pregnant employees the same treatment and benefits that it gives to employees with other temporary disabilities.

These 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.

2. Which federal laws cover pregnancy discrimination?

The federal laws which prohibit pregnancy discrimination and provide for disability and parenting leaves are Title VII of the Civil Rights Act of 1964 ("Title VII"), which includes the Pregnancy Discrimination Act of 1978 ("PDA"), (see section 2000e(k) of the law for the specific language concerning pregnancy) and the Family and Medical Leave Act of 1993 ("FMLA") 29 U.S.C. 2601 and following.

Title VII covers many forms of discrimination you may encounter because of your sex in decisions about hiring, firing, work assignments, work conditions, promotions, benefits, training, retirement policies and wages. The PDA was enacted in 1978 by Congress to clarify that discrimination based on pregnancy, child birth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. This act is only an extension of Title VII. PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.

The FMLA 29 U.S.C. 2601 and following 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 12 weeks of unpaid, job-protected 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.

The ADA protects individuals from employment discrimination on the basis of disability. While pregnancy itself is not a disability, pregnant workers and job applicants are not excluded from the protections of the ADA. Recent changes to the definition of “disability” make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.

Depending on your particular circumstances, pregnancy discrimination may violate Title VII, the Family and Medical Leave Act, the Pregnancy Discrimination Act, the Americans with disabilities Act, or all of these. The protection provided by these laws may depend on on whether an employee qualifies for protection under each law and whether leave is involved. Some state laws also make it illegal to discriminate on the basis of pregnancy, and may have different requirements than Title VII or the FMLA for awarding pregnancy leave.

3. Who is protected under the law?

Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, or medical conditions related to pregnancy or childbirth. These laws cover pregnant women whose physical condition qualifies them for disability leave under company policy, who work for employers with 15 or more employees, or who work for a labor union or an employment agency.

FMLA covers employees, male or female, who have been working at least a year for an employer with 50 or more employees, and allows these employees to take unpaid leave to care for a newborn or newly-adopted child, to care 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 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. A 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 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.

4. Do I have to tell potential employers I'm pregnant?

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.

5. Do I have to tell my current employer I'm pregnant?

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 need to notify your employer if you are going to take leave. You can consult with your supervisor, 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?

An employer may not compel an employee to take leave because she is pregnant, as long she is able to perform her job. Such an action violates Title VII even if the employer believes it is acting in the employee’s best interest. 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.

7. Can my employer keep me from working in certain areas or doing certain tasks because of health and safety concerns or to avoid offending clients or customers?

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 also cannot move you to another position or otherwise change your job because of anyone’s prejudices against pregnant workers.

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.

8. Can my employer deny me pregnancy leave or pregnancy related medical leave?

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.

9. 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.

10. Can my employer deny me accommodations at work due to a pregnancy related medical condition?

An employer is required under Title VII 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 without pay 42 U.S.C. § 2000e(k). 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.

11. What happens to my job while I am on pregnancy leave?

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.

12. Is my employer required to pay me while I am on pregnancy 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.

For more information about paid sick time in your state see our page on State and Local Paid Sick Leave Laws.

13. What happens to my benefits while I am on pregnancy 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.

Employers must treat pregnancy related medical leave the same as other medical leave in calculating the years of service that will be credited in evaluating an employee’s eligibility for a pension or for early retirement. AT&T Corp. v. Hulteen, 566 U.S. 701 (2009).

14. Does my employer's health insurance have to cover the medical costs of my pregnancy?

The Affordable Care Act requires employers with 50 or more employees to provide health insurance benefits to their workers. While the ACA does not require employers to pay for any portion of the coverage, it does provide tax incentives to employers who pay for 50% or more of the cost. Many employers take advantage of this benefit by paying a portion of the cost of employee health insurance.

Employers who offer employees health insurance must include coverage of pregnancy, childbirth and related medical conditions. The ACA prohibits insurers from declining coverage for pre-existing conditions, including pregnancy. Employers who have health insurance benefit plans must apply the same terms and conditions for pregnancy related costs as for medical costs unrelated to pregnancy. 29 C.F.R. § 1064.10(b)

  • If the plan covers a particular percentage of the medical costs incurred for non-pregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy-related conditions
  • If the medical benefits are subject to a deductible, pregnancy-related medical costs may not be subject to a higher deductible
  • The plan may not impose limitations applicable only to pregnancy-related medical expenses for any services such as doctor’s office visits, laboratory tests, x-rays, ambulance service, or recovery room use
  • 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

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.

15. 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 only required where the life of the mother is endangered.

The Affordable Care Act (“ACA”) requires that private health insurance plans provide no-cost coverage for contraceptives as well as other preventative services like well woman exams. However, there are some special exceptions to this rule for certain employers with religious objections to birth control. If you think your employer may fall under an exception you should consult with an employment attorney to learn more. While the law allows insurance plans to cover abortion to the extent it complies with state laws, there is no requirement that an insurer do so.

16. Can I be treated differently because I am unmarried and pregnant?

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.

17. Can men take pregnancy leaves?

There are two types of leave which are often referred to as pregnancy or maternity leave:

  1. Pregnancy Related Leave is related to any physical limitations imposed by pregnancy or childbirth; and
  2. Parental Leave is for the purposes of bonding with a child and/or providing care for a child, this may include the time after birth or adoption.

Under the FMLA fathers may take pregnancy related leave pre, or post-birth if they are the caregiver for a mother who has a serious pregnancy related condition. Fathers can also take job-protected parental leave under FMLA after a baby is born or adopted. This leave does not have to be taken all at once and may be intermittent. FMLA does not require that fathers be paid for this time.

Additionally, parental leave must be provided to similarly situated men and women on the same terms. So, if your employer provides paid parental leave to mothers, not related to any medical complication, then it must provide the same leave to fathers, or be subject to suit for sex discrimination.

18. What do I do if I am being discriminated against or denied leave or accommodations?

When you request a leave or an accommodation, 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.

If you are being discriminated against and want to file suit, you must be able to produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination. Once this is done the employer must demonstrate they had an articulable reason for treating the pregnant worker differently. If the employer satisfies that burden, then you have a chance to demonstrate that the articulable reason they gave is merely a pretext for discrimination, and was not the real reason for the employer’s action.

19. Who enforces the law?

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.

20. What are the remedies available to me?

Victims of sex discrimination (including pregnancy discrimination) can recover remedies including:

  • back pay;
  • hiring;
  • promotion;
  • reinstatement;
  • 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.

21. How can I file a complaint?

For more information on filing a complaint for a violation of the FMLA, please see our page on family/medical leave.

Anti-discrimination laws generally give you a limited amount of time to file. Generally, you have 180 days from the day the discrimination took place to file a charge. Most states follow this time limit but check with your state for more information. Federal employees have 45 days to contact an EEOC counselor.

For more information on filing a complaint for pregnancy discrimination, select your state from the map or list below.

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22. More Information About Pregnancy Discrimination:

Equal Employment Opportunity Commission
EEOC Statistics on Charges of Pregnancy Discrimination
Equal Rights Advocates
AFSCME
Department of Labor Women's Bureau



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