Employment Discrimination on the Basis of Pregnancy
The Pregnancy Discrimination Act (PDA) was an amendment to Title VII of the Civil Rights Act of 1964 that specifically prohibited pregnancy discrimination. An employer may not discriminate against job applicants or employees with regard to any aspect of employment on the basis of pregnancy, childbirth, or a related medical condition. Aspects of employment include hiring, firing, pay, promotion, fringe benefits, and any other duty or condition of employment.
The PDA only covers those employers that have at least 15 employees. It is enforced by the Equal Employment Opportunity Commission (EEOC). Several states, such as California, Connecticut, and Michigan, also have laws requiring parity in accommodations for pregnant employees.
Medical impairments that arise because of pregnancy, like preeclampsia or gestational diabetes, may qualify as a disability under the Americans with Disabilities Act (ADA) and qualify an employee for 12 weeks of medical leave in a 12-month period under the Family Medical Leave Act (FMLA). Unlike PDA and ADA, FMLA is enforced by the Department of Labor, not the EEOC. It applies to employers with a minimum of 50 employees. Nursing mothers also have the related legal right to express milk in the workplace under the Department of Labor’s Wage and Hour Division.
Disparate Treatment and Disparate Impact
The PDA prohibits policies that are obviously discriminatory as well as neutral policies that have a negative disparate impact on female employees who are pregnant or have a related condition. This means that an employer cannot create rules that expressly prevent pregnant women from performing specific tasks only because they are pregnant or have a pregnancy-related condition.
However, employers also are not allowed to institute neutral policies that disproportionately affect women because they are pregnant or have a pregnancy-related condition. In these cases, an employee does not have to show proof of intentional discrimination. The employer may defend itself by challenging the evidence used to show disparate impact or by showing the policy is job-related and consistent with business needs. If the employer proves that there is a business necessity, the employee still may prevail by showing there is an alternative practice that meets the same need with a less discriminatory effect, which the employer failed to institute.
When a woman is temporarily disabled due to a pregnancy-related condition and cannot perform her job, an employer has to treat her the same way it treats any other employee who has a temporary disability. This means an employer may have to provide a reasonable accommodation under ADA, as long as the accommodation does not impose an undue hardship. The employer should also provide alternative assignments, FMLA leave, or unpaid leave.
Harassment and Retaliation
Harassment in the workplace based on pregnancy, childbirth, or a pregnancy-related condition is unlawful if it is so frequent or severe that it creates a hostile work environment or results in an adverse employment decision. Harassment may be perpetrated by an employee’s supervisor, a supervisor in another area, a coworker, or even a customer of the employer.
Your employer may not retaliate against you for complaining to human relations about a violation of PDA, ADA, or FMLA, or associated harassment. This means, for example, your employer cannot demote you because you complain that your supervisor reassigned you to a lower-paying and less prestigious position due to your pregnancy. Similarly, your employer cannot terminate you because you ask human relations to take action in connection with a customer’s harassment.