The 1978 Pregnancy Discrimination Act (PDA) protects women from being fired or discriminated against on the basis of pregnancy, childbirth, or related medical conditions at workplaces with 15 or more employees. Although the PDA has been a federal law for nearly 40 years, discrimination against pregnant women continues to be an issue in the workplace. In fact, in 2016, the U.S. Equal Employment Opportunity Commission (EEOC) received nearly 3,500 pregnancy discrimination charges, and between 1992 and 2007, the number of charges filed with the EEOC increased 65%.
There’s no question that pregnancy discrimination is a common occurrence in today’s workplace, and it’s important to have a firm understanding of how it can manifest itself. Here are 8 examples of how you could be discriminated against or even fired by your employer because you are pregnant or recently gave birth.
Examples of Pregnancy Discrimination at Work
Firing or Discriminating Against a Pregnant Employee
Harassing an Employee for Being Pregnant
Refusing to Hire Someone Because They Are Pregnant
Not Providing Reasonable Accommodations
Firing or Discriminating Against an Employee for Pumping Breast Milk
Forcing an Employee to Take Time Off, Change Jobs, or Not Considering Them for a Promotion
Restricting Pregnancy-Related Medical Leave
There are many examples of blatant pregnancy discrimination, such as when a manager fires a pregnant employee because he doesn’t think she will be able to do her job. But there are also less flagrant examples. Although an employer may have good intentions, such as being concerned about a pregnant employee’s safety on the job, it’s still illegal to discriminate against or fire a pregnant employee due to concerns for her health. For example, even if a job necessitates lifting heavy objects or being around toxic chemicals, the safety of the employee and her fetus is ultimately up to her and her physician, not her boss or employer.
Offhand or occasional derogatory comments may not constitute harassment, but frequent and pervasive conduct—such as unwelcome and offensive jokes, insults, physical assaults and threats, and intimidation—that interferes with a pregnant or new mother’s work performance and creates a hostile working environment is considered harassment. This harassment can be carried out by a supervisor, co-worker, business partner, or even by clients or customers. For example, if a manager repeatedly makes comments to his direct report about how her pregnancy status is affecting her work in the hope that she will quit or transfer to a different position, this conduct may rise to the level of actionable harassment.
If a job applicant is pregnant or could become pregnant in the future, a company cannot refuse to hire her for those reasons (The same holds true for an employee who is applying for another position within the organization.) Many companies attempt to justify this by saying that they only want to hire someone who will be able to continue to work without any interruption. The employer may want to avoid what it assumes will be a negative economic impact or disruption of work in the workplace but that is illegal. An employer can’t make an assumption based on bias or stereotypes about how that employee will act during her pregnancy or following childbirth.
If an employee has pregnancy-related complications or impairments, she must receive the same accommodations as other employees who have medical impairments. For example, if an employee injured her back and is offered a light-duty assignment until her back heals, a pregnant employee must also be provided “reasonable accommodations” to perform light-duty work during her pregnancy. Just being pregnant is not enough to trigger the duty of the employer to make accommodations, however, and the employer may require medical certification to support a request for accommodation.
A couple of accommodation examples include changing a pregnant employee’s work schedule if she has severe morning sickness or providing a stool for a pregnant employee at her workstation so that she’s not constantly on her feet. In these cases, the employees will likely have to provide a physician’s note to document their medical conditions.
Under the Affordable Care Act, an employee who is a new mother must have the opportunity to pump breast milk at work in a safe and private place other than a bathroom. She must also be given reasonable breaks to do so. However, if a company has less than 50 employees, and it can prove that providing breaks or a private space would create “undue hardship” to the company, it may not be required to offer this arrangement to its employees.
Although an employer may believe that a pregnant employee should take a certain amount of time off after giving birth or want to reassign the pregnant employee to a less stressful job, it’s illegal to do so. As long as the employee is able to perform her job, she must be allowed to do so.
Again, even though an employer may believe that they are looking out for their employee, employment decisions cannot be based on the assumption that the employee may not be capable of carrying out the tasks of a particular job. For example, an employer cannot refuse to promote an employee who has recently given birth because the company assumes she won’t be as committed to her new position.
Under the PDA, an employer is required to allow an employee who has physical limitations due to her recent pregnancy to take leave under the same terms and conditions as their employees who have an equivalent ability or inability to work. For example, an employer cannot do the following:
- Fire a pregnant employee for being on leave if it’s covered by an employer’s sick leave policy.
- Require an employee who is limited by pregnancy or related medical conditions to first use her sick leave before using other types of leave if an employer does not require the same of its employees who request leave for other medical conditions.
- Force a pregnant employee to take a shorter leave than what an employer allows for medical or short-term disability leave.
- Stop an employee who is temporarily disabled because of her pregnancy from taking leave without pay; that is, if an employer does not do the same for other employees who have the same ability or inability to work.
In addition, an employer has to hold the pregnant employee’s job open for the same amount of time they would for employees who are on sick or temporary disability leave. And under the Family and Medical Leave Act (FMLA), an employer must allow the pregnant employee to return to her job or one that’s similar in pay, benefits, and other terms and conditions of employment.
Retaliating Against an Employee Who Complains About Pregnancy Discrimination
During the past decade, the EEOC has reported that retaliation is the most common form of discrimination found in federal sector cases. But it’s also prevalent in the private sector because it’s a natural reaction for people to retaliate when they feel as though they’ve been aggrieved in some fashion.
However, it’s against the law for employers to demote, fire, harass, or otherwise “retaliate” against an employee for filing a pregnancy discrimination complaint, opposing pregnancy discrimination, or participating in a pregnancy discrimination proceeding. An example would be a pregnant employee who was told that she could no longer do her job, so she was subsequently demoted. After threatening to file a claim with the EEOC, she was then fired because her employer alleged that she misplaced a large sum of money when in reality she didn’t.
Although pregnancy discrimination is not easy to prove, it’s important to document the conversations you had with your employer and co-workers and the resulting actions that were taken against you. This information will be extremely useful if you file a complaint with your company or pursue legal action. To prove that you were discriminated against, you may also have to exhibit that you were treated differently than your co-workers who had comparable qualifications and performance records.
If you feel as though you may have been discriminated against because you are pregnant, you should speak with an employment attorney. You may be able to file a claim with the Equal Employment Opportunity Commission (EEOC), which enforces anti-discrimination laws, including the PDA. To learn more about pregnancy discrimination, download our free Guide to Protecting Yourself Against Pregnancy Discrimination.