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How are pregnant employees protected against discrimination?

Posted by B&F System Admin | Jan 21, 2022

Many women are pregnant at some point during their working life, yet workplaces often still treat pregnancy as an impossible obstacle to hiring, career advancement or even continued employment. After giving birth and returning to work, new mothers often face judgment, questions about their commitment and challenges accessing private and hygienic lactation spaces.

What is pregnancy discrimination?

Broadly, pregnancy discrimination is unfair treatment due to pregnancy, childbirth, early motherhood, lactation or a pregnancy-related medical condition.

Pregnancy discrimination can happen in any job at any level. Hourly workers performing heavy physical tasks sometimes face injury or risk to the pregnancy. Corporate leaders see opportunities for promotion handed to less qualified non-pregnant team members. Even world-class athletes see contract negotiations stall, as Olympic gold medalist Allyson Felix did after asking Nike to guarantee she wouldn't be docked for her postpartum performance.

While pregnancy discrimination can occur in any industry, it can also take different forms, centering, for example, on a lack of accommodation, the refusal to hire or promote, punishment for pregnancy-related conditions or an unrequested reduction in work hours.

Protections under the Pregnancy Discrimination Act

Under the Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act, an employer cannot allow pregnancy to influence decisions related to hiring, firing, pay, job assignment, promotions, layoffs, training or benefits. When employees temporarily can't perform certain duties due to pregnancy or recovery from childbirth, the employer is required to treat them as they would other temporarily disabled employees. Depending on company policy, this might mean reassignment or light duty work, paid disability leave or unpaid time off.

Lawsuits alleging pregnancy discrimination due to a lack of accommodation are often challenging to prove, as they must show that while the company did not accommodate its pregnant employee, they did accommodate other temporarily disabled workers. In 2020, Walmart agreed to a $14 million class action settlement with 4,000 women who had worked there while pregnant in 2013 and 2014. During that time, the company didn't offer pregnant people the same accommodations it made for injured or temporarily disabled employees, like light duty assignments. Attorneys representing the workers successfully showed that Walmart offered other employees the accommodations it denied to pregnant workers, forcing the women to leave their job or risk their health by not following doctors' notes.

The Pregnancy Discrimination Act also makes it illegal to harass a woman because she's pregnant. Like other forms of workplace harassment, the abuse must create a hostile work environment or result in a negative outcome, like firing or demotion. 

Other protections for pregnant employees

Aside from the protections offered by the Pregnancy Discrimination Act, other laws offer additional safeguards. The Family and Medical Leave Act (FMLA) requires that employers of a certain size give any new parent (mother, father, adoptive or foster) access to up to 12 weeks of leave if the parent has worked at the company for at least 12 months. Depending on the company policy and paid time off accrued, this leave may be paid or unpaid.

Pregnancy-related conditions, like preeclampsia, may also be protected under the Americans with Disabilities Act.

When nursing mothers return to work, Section 7 of the Fair Labor Standards Act (FLSA) requires that employers provide break time for lactation in a private space that's not also a bathroom.

Supporting pregnancy and parenthood in the workplace

While pregnancy discrimination is unfortunately widespread, there's a lot that companies can do to show support for pregnant employees and new parents. With a labor shortage and growing burnout, demonstrating a caring attitude backed up by real policies and benefits may help attract talent, retain skilled workers and boost morale. Managers can be sure their employees understand and access parental benefits. Leadership can offer flexible work if needed, avoid making assumptions, and expect that all parents—mothers and fathers—will sometimes have family responsibilities.

If you believe you've experienced pregnancy discrimination, it's important to learn about your options. At Barrett & Farahany, we are happy to answer any questions about your situation. Please contact us to get started today.

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