Women increasingly contribute a significant portion of household income. Over 65% of women work while pregnant, and of those women, over 88% work into their third trimester.[1] Pregnancy discrimination cases are constantly in the news and some studies report 62% of people have witnessed pregnancy discrimination while on the job.[2] Not only do poor pregnancy policies often unfairly cost pregnant workers their jobs and maternal health, but they also cost employers huge settlements.

Workplace discrimination laws have been evolving since the inception of the Civil Rights Act of 1964. Title VII revolutionized how employers interview, hire, manage, and fire their employees, and there have been monumental strides toward equality in the workplace since then. Pregnancy discrimination, however, is one area of discrimination law that remains somewhat muddled, but a new bill is looking to clarify the obligations of employers under Title VII.

Generally, Title VII prohibits employment discrimination based on sex, race, color, national origin, or religion.[7] The prohibition extends to any adverse employment actions, including firing, refusing to hire, or otherwise discriminating in the terms, conditions, and privileges of employment.[8]

Despite this,

to list just a few cases.

Current Law

The Pregnancy Discrimination Act (PDA) amended Title VII in 1978 to prohibit workplace discrimination based on pregnancy at any point in the childbearing process.[9] The EEOC defines pregnancy discrimination as “…treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.”[10] Thousands of pregnancy discrimination claims are filed every year. Most of the charges are related to a wrongful discharge based on pregnancy, but other adverse actions may be a basis for a pregnancy discrimination claim.[11] The EEOC warns about discriminating based on pregnancy in working conditions, medical clearance procedures, temporary disability, health insurance, or benefits.[12]

Title I of the Americans with Disabilities Act (ADA) has also proven to be a positive force for eradicating workplace discrimination. The ADA requires employers to make reasonable accommodations for qualified employees with disabilities and prohibits discrimination based on disability. The 2008 Amendments to the ADA specifically included pregnancy-related disabilities.

The Family and Medical Leave Act (FMLA) provides some protections for pregnant workers as well. Under FMLA, pregnant workers may take up to 12 weeks of leave to care for the child, as long as that employee had worked for the employer for at least 12 months before taking leave.

Between Title VII, the ADA, and FMLA, federal laws provide a patchwork of employment protections for workers, but pregnant workers exist as a unique class of employees, with its own set of challenges and stigmas. While there has been some progress in confronting pregnancy discrimination in the United States, Congress and state legislatures are continuing to consider ways to strengthen the rights of pregnant workers.

The Pregnancy Discrimination Act in Practice

In the landmark pregnancy discrimination case, Young v. United Parcel Service, Inc., a UPS driver became pregnant and asked her employer for a light-duty position because she was no longer supposed to lift 70-pound packages. Her request was denied, and she was put on unpaid leave without employee medical coverage.[13] This case turned on the clause in the PDA requiring employers to treat pregnant women the same as any other employees who similarly cannot work.

The Supreme Court concluded that employers do not need to provide the same work accommodations to pregnant workers as they do to employees with non-pregnancy-related work limitations. Rather, employers must determine whether there is a legitimate reason to treat a pregnant worker less favorably than a non-pregnant worker with a work limitation.

The Supreme Court in Young established the test employees must meet under the McDonnell-Douglas burden-shifting framework to establish a prima facie cause of action for discrimination. To make a case for pregnancy discrimination after Young, an employee must show that the employer imposed a significant burden on employees, and the employer does not have a sufficiently strong reason to justify it.[14] The phrases “significant burden” and “sufficiently strong” remain vague and difficult for employers to comply with. Young provided no bright-line rules for employers looking to ensure their policies do not discriminate against pregnant employees, but here is one example the EEOC provides to illustrate a potentially discriminatory policy:

Despite the enactment of the PDA and its subsequent interpretations, pregnancy discrimination is still prevalent. Between 2010 and 2015, there were about 31,000 pregnancy discrimination charges filed with the EEOC and state agencies.[16] About a third of the charges alleged that the employee was discharged when they became pregnant, while some other common claims involve discrimination in the terms of employment, harassment, and disciplinary action.[17]

The denial of reasonable accommodations represents a significant portion of the charges. Simple examples of reasonable accommodations that have been denied include being allowed to hold a water bottle, taking extra bathroom breaks,[18] and sitting down instead of standing during a shift.[19]

Some of the most common industries reporting pregnancy discrimination claims are health care, retail, manufacturing, and education.[20] Black women are disproportionately more likely to file a pregnancy discrimination claim than women of any other racial or ethnic group.[21]

State Protections for Pregnancy Discrimination

Almost all states have some protections for pregnant workers. Some jurisdictions prohibit discrimination based on pregnancy and require employers to make reasonable accommodations to pregnant employees. Many states also require accommodations for breastfeeding. In some jurisdictions, pregnancy accommodation laws only apply to public employees.[22] Many cities and municipalities also define sex discrimination to include pregnancy discrimination.

Generally, depending on where in the country an employee is, the type of accommodations they may be entitled to during their pregnancy can be extremely different than elsewhere in the country. Advocates call for a fair national approach to closing the gaps of the PDA and ensuring equal pregnancy protections at the federal level.

Pregnant Workers Fairness Act

Congress has proposed a new bill, H.R.2694 the Pregnant Workers Fairness Act, aiming to improve these protections. Employers may not deny pregnant people employment opportunities, retaliate against them for requesting reasonable accommodations, or forcing them to take leave if another accommodation is available.[23] The bill aims to unequivocally require employers to make reasonable accommodations for pregnant employees. Current precedent under the PDA does not explicitly require employers to reasonably accommodate the needs of pregnant workers, so this bill would take a step toward clarifying the duties of employers by establishing an interactive process with the employee to determine which accommodations are reasonable.[24] After enactment, the EEOC would be responsible for promulgating guidance as to what qualifies as a reasonable accommodation.[25]

The bill would provide the same remedies to those denied reasonable accommodations under the Pregnant Workers Fairness Act as are available under Title VII, including lost pay, compensatory damages, and attorneys’ fees. The bill passed in the House of Representatives in September 2020, but it has not yet passed the Senate, despite having broad bipartisan support.

Pregnancy discrimination has been shown to impact the health of both the mother and the baby, according to a Baylor study. The study measured perceived pregnancy discrimination and found links to post-partum depression, lower birth rates, lower gestational ages, and more doctor’s office visits for babies.[26]

Although there has been significant progress in ensuring pregnant workers have an equal opportunity to earn a living, the statistics illustrate that there is a long way to go. If the Pregnant Workers Fairness Act passes the Senate, many employers will need to quickly revamp their policies around employee pregnancy to implement a process for determining reasonable accommodations, making it a necessary step in ensuring equal opportunities to pregnant employees.