The federal Pregnancy Discrimination Act (PDA) generally prohibits discrimination against applicants or employees based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. How that affects employers can prove complicated, though. Here are some helpful tips to stay on the right side of the law.
Who does the PDA protect?
The Pregnancy Discrimination Act protects employees from discrimination based on current pregnancy and past and potential pregnancy. For example, you can’t fire a person because of pregnancy during or at the end of their maternity leave (past pregnancy).
You also can’t exclude someone from a job because you think it could be dangerous for them while they are pregnant, or refuse to hire them because they plan to become pregnant at some point (potential).
What does the PDA prohibit?
As part of Title VII of the federal Civil Rights Act of 1964, the Pregnancy Discrimination Act generally forbids discrimination in any aspect of employment, including:
- Job assignments
- Fringe benefits (for example, leave and health insurance benefits).
What does that mean when it comes to hiring?
It’s pretty simple — you can’t refuse to hire someone because of their pregnancy-related condition if they are otherwise qualified to perform the job’s major functions. You also can’t refuse to hire anyone because of your own preconceived notions about pregnant workers or those of co-workers, clients, or customers.
You must treat such employees the same way you would treat any other temporarily disabled employee. That means you may have to provide light duty, alternative assignments, disability leave, or unpaid leave, depending on your policies. These circumstances may also trigger the need for an employer to make a reasonable accommodations under the Americans with Disabilities Act (ADA).
NOTE: If you provide light duty to other employees, you can’t deny it to a pregnant worker because it would be more expensive or less convenient.
If the employee takes leave, you must hold their job open for the same length of time that positions are held for employees on sick or temporary disability leave. And, if you provide any benefits to workers on medical leave, you must provide those same benefits to employees on leave for pregnancy-related conditions. They also must be treated the same in terms of accrual of seniority, service crediting, vacation time calculation, pay raises, and temporary disability benefits.
But you also can apply the same requirements you normally would apply to temporarily disabled employees. If those employees must submit a physician’s note, for example, you can require employees affected by pregnancy-related conditions to do the same. You can’t, however, require such a note of pregnant employees but not others who are unable to work.
NOTE: If there is direct evidence that pregnancy-related animosity motivated the decision to deny a pregnant employee light duty, the employee needn’t show that another employee was treated more favorably than they were to prevail on her PDA claim in court. For example, if a supervisor denies a light duty request because “having a pregnant worker in the workplace is just too much of a liability for the company,” it’s a PDA violation.
Does the PDA require employers to provide reasonable accommodations to pregnant employees?
Under the ADA, private employers with at least 15 employees must provide adjustments or modifications that enable people with disabilities to apply for a job, perform a job, or enjoy the same benefits and privileges (for example, access to training) as employees without disabilities. Some state disability discrimination laws have lower thresholds for which employers are covered.
Impairments caused by pregnancy — such as gestational diabetes, preeclampsia, anemia, sciatica, and depression — likely qualify as disabilities under the ADA. In that case, you generally would need to provide a reasonable accommodation unless doing so would cause you undue hardship (that is, significant difficulty or expense).
Recent developments: Congress Mulls Additional Protections Amid Bipartisan Support
In 2021, the U.S. House of Representatives passed the “Pregnant Workers Fairness Act” by a 315-101 vote. The bill has the support of more than 250 worker rights and civil rights advocates, as well as the U.S. Chamber of Commerce and other business groups.
If passed, the law would give qualified employees affected by pregnancy, childbirth, or related medical conditions the right to reasonable accommodations that wouldn’t cause their employer undue hardship. It would apply only to employers with more than 15 employees.
The law would make it illegal for pregnant workers to be:
- Denied employment opportunities
- Retaliated against for requesting a reasonable accommodation
- Forced to take paid or unpaid leave if another reasonable accommodation is available.
Workers denied a reasonable accommodation would have the same rights and remedies as available for other Title VII violations, including lost pay, compensatory damages, and reasonable attorneys’ fees.
The bill awaits action in the U.S. Senate as of May 2022.
How does the PDA apply to return-to-work decisions?
If an employee has been off work due to a pregnancy-related condition but recovers, you can’t require them to remain on leave until they give birth. You also can’t have a rule prohibiting employees from returning to work for a set period of time after childbirth.
What can I do if I’m worried about the health of an employee or their fetus?
Not much. According to the U.S. Equal Employment Opportunity Commission, concerns about risks to a pregnant employee or their fetus will rarely — if ever — justify sex-specific job restrictions for a woman of “childbearing capacity.” For example, you can’t require a pregnant worker to take leave if they can perform their job.
Does the PDA address harassment?
Yes. The Pregnancy Discrimination Act makes it unlawful to harass anyone because of pregnancy, childbirth, or a related medical condition. Examples include:
- Unwelcome and offensive jokes or name-calling
- Physical assaults or threats
- Offensive objects or pictures
- Interference with work performance motivated by pregnancy, childbirth, or related medical conditions such as breastfeeding.
Harassment becomes unlawful when it:
- Is so frequent or severe that it creates a hostile or offensive work environment, or
- Results in an adverse employment decision (for example, termination or demotion).
Notably, harassment can occur at the hands of people other than the employee’s supervisor. A harasser can also be a supervisor in another department, a co-worker, or a third party over whom the employer has some control, such as a client, customer, or vendor.
How does the PDA affect health insurance?
If you provide health insurance, it must cover expenses for pregnancy-related conditions on the same basis as expenses for other medical conditions. In other words, the amounts payable by the insurer can be limited only to the same extent as costs for other conditions. Employees can’t be subject to additional or higher deductibles for pregnancy-related expenses.
Do any other laws protect pregnant employees?
Several other laws might provide protections. For example, under the Family and Medical Leave Act, parents may qualify for 12 weeks of leave to care for a new child.
The Affordable Care Act amended the Fair Labor Standards Act to require employers to provide “reasonable break time” for hourly employees to express milk for their nursing children, up to a child’s first birthday. You also must provide these workers a location (other than a bathroom) to do so, shielded from view and free from intrusion from co-workers and the public. You needn’t, however, pay employees for this time.
The nursing requirements don’t apply to employers with fewer than 50 employees if compliance would impose an undue hardship in terms of difficulty or expense in light of the employer’s size, nature, or structure.
Note: Lactation is a pregnancy-related medical condition, so demoting an employee because of her breastfeeding schedule risks violating the PDA.
It’s important to note that protection under these various laws run concurrently. In other words, if an employee is on leave under FMLA, protections afforded under, for example, the PDA or FLSA, would also be in effect for that employee. Employers will need to ensure that they care fully compliant in all applicable laws and regulations.
State laws may provide additional protections.