You may think that pregnancy discrimination claims may be limited to situations where an employee informs her employer that she’s pregnant and she loses her job a short time later or while on pregnancy leave an employee is mysteriously laid off. The fact is, the law covers a wide range of possible issues ranging from an employee’s attempts to become pregnant, birth control and abortion, accommodating physical limitations of pregnant employees and employee’s past history of being pregnant.

Federal law prohibits employment discrimination based on pregnancy related issues through the Pregnancy Discrimination Act of 1978 (PDA), which amended The Civil Rights Act of 1964 (or Title VII). The law made it illegal to discriminate against a woman because of her pregnancy, childbirth or a medical condition related to pregnancy or childbirth. Illegal discrimination also includes retaliating against a person because the person complained about pregnancy related discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The PDA requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work.  The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits).  Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy, and potential pregnancy.

• Current pregnancy: It’s illegal for an employer to fire, refuse to hire, demote, or take an adverse action (demotion, cut in hours, pay rate deduction) against a woman if pregnancy, childbirth, or a related medical condition is a reason. This is true even if the employer thinks it’s acting in the employee’s interest (a workplace may be hazardous and the employer fears for well-being of fetus).
• Past Pregnancy: An employer can’t discriminate against a worker or applicant because of a previous pregnancy or prior pregnancy-related medical condition or childbirth.
• Potential or Intended Pregnancy: It’s illegal to discriminate against an employee because of her intention or potential to become pregnant.
  • This also covers situations where the workplace may contain hazardous chemicals or the employer may fear the employee may want to take maternity leave, potentially disrupting the workplace
  • If an employee takes time off for fertility treatments she shouldn’t be discrimination against
  • There should be no discrimination based on an employee’s use of contraceptives
• Medical Condition Related to Pregnancy or Childbirth: An employer can’t discriminate against an employee because of a medical condition related to pregnancy. She must be treated like other employees who have similar abilities or inabilities to perform the job but are not affected by pregnancy, childbirth or a related medical condition. This covers lactation, the use of fertility treatments to become pregnant and the employee’s consideration of or choice to have an abortion.
• Harassment: It’s unlawful to harass a female employee because of pregnancy, childbirth, or a related medical condition, just as it’s illegal to harass an employee about his or her race, color, religion, disability or sex. Such treatment becomes illegal when it’s so frequent or severe that it creates a hostile or offensive environment, or when it results in an adverse employment decision (such as being fired or demoted).
• Employees with Caregiving Responsibilities: Discrimination against a worker who has caregiving responsibilities violates Title VII if it is based on sex and violates the Americans with Disabilities if it’s based on a family member’s disability.
• Benefits of Employment: The employer must provide the same benefits of employment to women affected by pregnancy, childbirth, or related medical conditions that it provides to other employees who have similar abilities or inabilities to work. This includes:
  • Light Duty Policies: An employer needs to treat female employees affected by pregnancy, childbirth or related medical conditions the same as other employees who have similar abilities or inabilities to work concerning light duty, alternative assignments, disability leave or unpaid leave. A light duty policy that doesn’t specifically exclude pregnant workers may violate the law if it puts significant burdens on pregnant employees without a strong enough justification.
  • Leave: An employer may not compel an employee to take leave because of her pregnancy if she is able to perform her job. It must also allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions (including length) as others who are similar in their ability or inability to work. The employer:
    • May not have different procedures for pregnant employees for medical clearance procedures that are not required of employees who are similar in their ability or inability to work
    • May not demote or fire a pregnant employee from her job due to pregnancy as long as she is able to perform her job
    • Must allow a return to work following recovery from a pregnancy-related condition just as other employees are allowed to return from sick or disability leave for other reasons
  • Medical Benefits: If health insurance is offered to employees it must include coverage of pregnancy, childbirth and related medical conditions.

Employers with fifteen or more employees fall under the PDA. If your employer is smaller than that, the New Jersey Law Against Discrimination also prohibits employment discrimination based on pregnancy and it covers all employers, no matter how many employees they have.

A related federal law is the Family Medical Leave Act (FMLA). It allows for up to twelve weeks of unpaid leave in a twelve month time frame due to the birth or adoption of a child. It would also allow a spouse or immediate family member to take leave to help care for a woman with a pregnancy related medical condition as long as it would be considered a “serious health condition.” In order to qualify you would have to have worked 1,250 hours in the past twelve months and the employer needs to have at least fifty employees.

Under the Americans with Disabilities Act (ADA) those suffering the substantial impairment of a major life activity must be reasonably accommodated and not discriminated against by a covered employer. Such impairment would not be pregnancy but a related condition such as diabetes or infertility may be considered a disability under the law.

The PDA covers just about any employment issue that may arise concerning a woman’s past, present or future pregnancy. If you believe your rights under the PDA or another employment law have been violated, contact our office so we can discuss your situation, how the law may apply and the best ways to protect your rights.