Discriminación por embarazo

Laws exist to prohibit workplace discrimination against pregnant employees and to require reasonable accommodations for them. Pregnancy, childbirth, and related medical conditions. may be the basis of pregnancy discrimination. Title VII of the Civil Rights Act of 1964, which is enforced by the EEOC, is the main federal law against pregnancy discrimination. Other laws – such as state laws and the newly enacted federal Pregnant Workers Fairness Act (PWFA) – are also instructive. Read below to learn more about pregnancy discrimination. You may also visit Workplace Fairness’ related pages on breastfeeding in the workplace, the Family and Medical Leave Act (FMLA), and disability discrimination.

Listen to our The PWFA: Pregnancy + Parental Discrimination Podcast to learn more about the Pregnant Workers’ Fairness Act and its protections.

Listen to Sounding the Alarm on Pregnancy Discrimination to hear former Chelsey Glasson’s (former Google employee) pregnancy discrimination story and what she is doing to advocate for pregnant workers’ rights.,

Pregnancy discrimination can occur when an employee or job applicant is treated differently from others based on: 

  • Pregnancy (including past, current, and potential pregnancies)
  • Childbirth
  • Breastfeeding
  • Abortions
  • Birth control
  • Other medical conditions related to pregnancy
  • Adverse employment actions related to these conditions are prohibited by Title VII of the Civil Rights Act of 1964. Discriminatory actions may include but are not limited to:
  • Refusing to hire a job applicant due to pregnancy
  • Firing or demoting a pregnant employee
  • Denying the same or a similar job to an employee after they return from a pregnancy-related leave
  • Harassment 
  • Denying reasonable accommodations

The following scenarios are some examples of actions that may be considered pregnancy discrimination: 

  • An employer tells a pregnant job applicant that they should re-apply for the job after they give birth
  • An employer refuses to permit a pregnant worker avoid lifting heavy objects despite granting this accommodation to another employee who was recovering from surgery
  • A pregnant worker is disciplined for taking time off work for a doctor’s appointment for prenatal care even though other workers were not disciplined for seeking ongoing medical treatment

These federal laws provide protections for pregnant employees:

Title VII of the Civil Rights Act of 1964

Title VII prohibits sex discrimination, which was amended by the Pregnancy Discrimination Act of 1978 (PDA) to include pregnancy discrimination. Adverse employment actions against workers or job applicants based on pregnancy or related medical conditions are illegal under Title VII. 

Pregnant Workers Fairness Act (PWFA)

The PWFA is a new law that became effective on June 27, 2023. In short, it requires employers to provide reasonable accommodations to workers for pregnancy and related medical conditions. More information is given below.

Americans with Disabilities Act (ADA)

The ADA prohibits disability discrimination. A worker qualifies as disabled under the ADA if a physical or mental impairment substantially limits their ability to engage in one or more major life activities, such as work. Pregnancy and related medical conditions may qualify an employee as temporarily disabled under the ADA.

Family and Medical Leave Act (FMLA)

The FMLA guarantees certain employees the right to 12 weeks of unpaid leave per year for medical conditions affecting themselves or their family members. This includes leave for pregnancy, childbirth, and caring for a new child. Learn more about who the FMLA covers here.

PUMP for Nursing Mothers Act

The PUMP Act was enacted on December 29, 2022. All workplaces covered by the Fair Labor Standards Act (FLSA) are now required to provide workers with reasonable breaks and a private location other than a bathroom to pump breast milk. This is required for up to one year after the employee gives birth. More information is given below.

State Laws

Most states have statutes relating to pregnancy discrimination and accommodations. View the relevant laws for each state on the EEOC’s websiteState laws can provide greater protections than federal laws do. Employers who are not covered by federal laws may be covered by state laws. Employers who are subject to both state and federal laws must comply with both.

Title VII, the PWFA, and the ADA apply to all employers with 15 or more employees, as well as to unions and employment agencies.

The FMLA covers employees who have been working for at least one year for an employer with 50 or more employees. Learn more about the FMLA here.

The PUMP Act applies to all employers covered under the FLSA – employers who engage in interstate commerce or who have an annual gross revenue of $500,000 or more. Businesses with less than 50 employees are exempt from the PUMP Act only if the employer can show that compliance with it would cause them undue hardship. Undue hardship is determined based on factors such as finances and the nature of a business. 

Employers may also be subject to state laws even if federal laws do not apply to them.

At a job interview, it is legal for a potential employer to ask a job applicant if they are pregnant or plan to become pregnant. However, employers are best advised to refrain from asking these questions, as they may be interpreted as an intent to discriminate later.

Job applicants are not required to disclose pregnancy. Even if an employee chooses to disclose a pregnancy or their pregnancy is apparent, employers cannot refuse to hire someone based on pregnancy unless it would prevent them from performing the essential functions of the job they are applying for. For example, there may not be a means to reasonably accommodate an employee for a job that requires heavy physical labor.

You do not have to disclose your pregnancy to your employer unless you need leave or accommodation due to it or a related medical condition. Of course, you can choose to disclose pregnancy if you want to.  

To take leave or to receive accommodation, you need to disclose your needs and your reasons for them to your employer or to your human resources department. If pregnancy impairs your ability to perform major job functions, you should request leave or temporary reassignment as an accommodation. 

An employer cannot compel an employee to take leave because of their pregnancy unless it interferes with their ability to perform an essential job function. This is true even if the employer insists on leave because they believe it is in the employee’s best interest. Instead, the PWFA requires employers to provide reasonable accommodation for pregnancy and related medical conditions. If the employee does not want to take leave, the employer must work with them to identify reasonable accommodations for them to continue working. Employers also cannot mandate leave for a period after an employee gives birth, though an employee can request such leave themself.

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. Under the PWFA, employers must provide reasonable accommodations for pregnancy and related medical conditions.. 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. Employers must hold open your job for the same length of time as they would for employees on sick or disability leave.

Company policy, state law, or a federal law may require an employer to grant an employee’s request for leave due to pregnancy or a related medical condition. Under the PWFA, employers must permit leave if it is reasonable accommodation and there is not a more appropriate alternative. The same is true under the ADA if pregnancy or a related condition qualifies the employee as temporarily disabled.

Federal employers covered by the FMLA must permit an employee to take leave for themselves or a family member if they meet the requirements for it. See Workplace Fairness’ page on the FMLA for more information. Even if a federal law does not apply, state law or company policy can step in to allow leave. 

It depends. A federal law, state law, or company policy may require an employer to permit employees to take maternity leave – time off work following childbirth.

Time off to recover may be a reasonable accommodation that employees can request under the PWFA and – if they qualify as temporarily disabled – under the ADA. If so, employers must allow it. Employees within the scope of the FMLA also must be granted leave on request for themselves or for a family member.

Even if none of these federal laws apply, a state law may mandate maternity leave. Further, company policy may require an employer to provide paid or unpaid leave.

Not if the accommodations are reasonable. Under the new PWFA, employers must provide reasonable accommodations to employees for pregnancy or related medical conditions upon request unless the accommodation would cause an “undue hardship” on the employer. This is true even if the employee does not otherwise qualify for reasonable accommodations under the ADA – which requires employees to be at least temporarily disabled. See the Equal Employment Opportunity website for more information.

Additionally, employers are required under the PUMP Act to provide breaks and a private location other than a bathroom for employees to express breast milk for up to one year after giving birth.

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.

There are some situations where it would be legal for an employer to fire someone while they are on maternity leave or upon their return. Employers are allowed to terminate employment for valid reasons, such as for complaints that arise before an employee took leave or because they are laying off multiple positions. Sometimes, an employee will decide not to return to work after maternity leave even if they had planned to. See this article on issues to consider when quitting after maternity 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.

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).

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. 

  • 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.

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.

Although it is illegal to discriminate based on pregnancy, federal law only prohibits discrimination based on marital status when it occurs against federal government workers under the Civil Service Reform Act (CSRA). However, state law or company policy may step in to prohibit it.

While Title VII does not specifically prohibit marital discrimination, employers cannot treat unmarried pregnant women differently than it treats unmarried men who have children out of wedlock. Additionally, employers cannot deny pregnancy-related benefits to unmarried employees.

This depends on the type of leave. FMLA leave is permitted for parents – mothers, fathers, and same-sex couples – for childbirth, adoption, or foster care. It also allows for leave for an employee to care for their spouse. FMLA leave is not required to be paid.

As for leave other than under the FMLA, this depends on the authority that permits leave. For example, state law or company policy may dictate that employers must provide parental leave. While the PWFA requires employers to accommodate employees for pregnancy and related medical conditions, it does not necessarily require leave for spouses.

You have several options in these situations. First, note that you should try to maintain a record of everything in writing to best support your contentions. Follow up with email confirmations for important discussions you have orally at work, request accommodations in writing, and keep copies of doctor’s notes and other documents. If you face discrimination or are denied reasonable accommodations, you can seek resolution within the workplace and / or take action outside it.

Speak with your employer and / or with human resources. Probably the easiest and least disruptive solution is to have a civil discussion with your employer and / or your workplace’s human resources department to express your concerns. If they fail to resolve the problem, then you may want to pursue external options. It is illegal for your boss to fire you or otherwise retaliate against you because you filed a complaint. Visit Workplace Fairness’ page on retaliation for more information.

File a complaint with the EEOC. You can file a discrimination charge with the EEOC, which will investigate your claim. The EEOC enforces federal laws that prohibit discrimination and require reasonable accommodations, including Title VII, the PWFA, and the PUMP Act. There are time limits on when you must file a complaint. See the question below on how to file a complaint for more information. 

File a complaint with a state or local agency. You may file a discrimination complaint with a state or local agency if a state or local law prohibits the type of discrimination you encountered. If you file with a Fair Employment Practices Agency (FEPA), your complaint will automatically be dual filed with the EEOC as well. 

File a lawsuit. It is important to note that you must file a charge with the EEOC before you are permitted to pursue a lawsuit based on a federal anti-discrimination law. The EEOC will provide you with a Notice of Right to Sue. You only have 90 days after receiving this notice to file a suit in court.

The Pregnant Workers Fairness Act (PWFA) is a new law enforced by the EEOC. As of June 27, 2023, employers with 15 or more employees must provide reasonable accommodations for pregnancy, childbirth, postpartum recovery, and other medical conditions related to pregnancy. 

What is a qualified employee? A qualified employee is someone who can do the essential functions of their job with or without a reasonable accommodation from their employer. A worker who cannot do one or more tasks that are essential to the job can still be a “qualified employee” if their inability is temporary and the worker’s inability to do that job task can be reasonably accommodated. Conditions that an employer may need to accommodate an employee for include, but are not limited to, pregnancy, pregnancy loss, lactation, nausea, fertility treatments, and postpartum depression. 

The PWFA makes it easier for workers to obtain accommodations related to pregnancy. Under the PWFA, pregnancy and related conditions are sufficient to require accommodation. In contrast, accommodations are only required under the ADA if the condition would qualify the employee as temporarily disabled.

Employers do not have to provide accommodations that would cause them undue hardship. This is determined on a case-by-case basis based on factors such as financial costs and the nature of the job at issue. Examples of reasonable accommodations include but are not limited to:

  • Extra breaks.
  • Allowing workers to sit.
  • Allowing uniform changes for maternity clothing.
  • Allowing pregnant workers to avoid heavy lifting. 
  • Scheduling around doctor appointments.
  • Allowing for time off or remote work. 
  • Providing time off after childbirth. 
  • Employers should have an interactive discussion with any employee who requests accommodations to determine what would be most appropriate for them.

Covered employers cannot:  

  • Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
  • Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
  • Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
  • Interfere with any individual’s rights under the PWFA.

More information about the PWFA is available here and on the EEOC’s website.

 

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.

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.

If you plan to file a discrimination complaint, you generally must do so soon after the incident giving rise to the complaint occurred. You typically must file a charge with the EEOC within 180 days of the alleged violation. If a state or local anti-discrimination law also prohibits the conduct, the filing deadline is extended to 300 days.

If you want to file a lawsuit based on a federal discrimination claim, you must file a charge with the EEOC first. The EEOC will send you a Notice of Right to Sue. This is typically sent after the EEOC concludes its investigation, but you can request to receive it earlier. You must file a lawsuit within 90 days of receiving the notice for a court to hear it. 

For federal employees, an additional time constraint applies. They must contact an EEO counselor within 45 days of experiencing discrimination before they can file a former complaint.

Because of the strict timelines associated with filing a complaint, you should consider contacting an employment attorney as soon as you believe you have been discriminated against.

 

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Madeline Messa

Madeline Messa es estudiante de tercer año en la Facultad de Derecho de la Universidad de Siracusa. Se licenció en Periodismo en Penn State. Con su investigación jurídica y la redacción de Workplace Fairness, se esfuerza por dotar a las personas de la información que necesitan para ser su mejor defensor.