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What Is Considered Pregnancy Discrimination?

June 14th, 2022
Philadelphia Employment Discrimination Lawyers at The Gold Law Firm P.C. Advocate for Pregnant Employees.

Pregnancy discrimination is against the law. Pregnant women cannot be treated less well than nonpregnant women or men in terms of the conditions of their job. For example, a pregnant woman or a woman recovering from childbirth cannot be denied time off from work if nonpregnant employees are given such leave.

Under expanded federal law and most state and local laws, pregnant women now are entitled to reasonable accommodations, including but not limited to job modifications, schedule changes, flextime, and even time off from work.

The Pregnancy Discrimination Act (PDA) is an amendment to the Title VII of the Civil Rights Act. This federal statute prohibits discrimination based on pregnancy, childbirth, or pregnancy-related medical conditions. Under the Act, employers cannot refuse to hire a qualified candidate based on pregnancy status. Pregnancy is considered a temporary disability under the law, so pregnancy discrimination is also a violation of the Americans with Disabilities Act (ADA).

What does this mean? If a woman is temporarily unable to perform her job due to a medical condition related to her pregnancy or childbirth, the employer must treat her the same way it treats any other temporarily disabled employee. For example, the employer may need to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

An employer also cannot assume a pregnant woman is unable to work because she is pregnant. It is against the law to fire a pregnant employee because an employer was concerned about the employee’s health and safety or that of her unborn child when performing certain types of work. At the same time, if safety precautions are used by nonpregnant employees, such as equipment or uniforms, adjustments must be made so that a pregnant employee can remain on the job while still using the same uniform or equipment.

The PDA also prohibits stereotyping pregnant workers. For example, it is illegal to evaluate a pregnant worker’s performance differently than a similarly situated nonpregnant female or male employee. It is also illegal to assume pregnant employees are less dedicated to their jobs, more emotional, or less able to do their jobs.

Employers cannot assume that a woman does not want to return to work after having children. They cannot make decisions about an employee’s job, compensation, or future based on her having been or thinking about becoming pregnant. 

In addition, impairments resulting from pregnancy, such as gestational diabetes or preeclampsia, may be considered disabilities under the ADA. In these cases, an employer may have to provide a reasonable accommodation, including leave or job modifications, that enable the pregnant employee to perform her job. The law allows consideration for the employer who may not need to make modifications if they will cause significant difficulty or expense.

Pregnancy and Work Leave

Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay must let an employee who is temporarily disabled due to pregnancy do the same. An employer cannot single out pregnancy-related conditions for special procedures relating to their ability to work. For example, an employer that requires employees to submit a doctor’s statement regarding their ability to work before granting leave or benefits can require employees with pregnancy-related conditions to offer the same.

Under the Family and Medical Leave Act (FMLA), a new parent, including foster and adoptive parents, may be eligible for 12 weeks of leave to care for the new child. The employee must have worked for the employer for 12 months before taking the leave to be eligible. The employer must have a specified number of employees.

Pregnancy Discrimination and Harassment

Discrimination and harassment in the workplace are illegal, including when aimed at a pregnant person or one who has just given birth. Harassment becomes illegal when it is so frequent or severe that it creates an offensive or hostile work environment or when it results in an adverse employment decision, such as the victim being fired or demoted. A pregnant person should contact a lawyer if they experience workplace harassment or discrimination due to their pregnancy.

Pregnant Employees’ Rights

Pregnant employees may have additional rights under the FMLA, enforced by the U.S. Department of Labor. Nursing mothers may also have the right to express milk in the workplace under a provision of the Fair Labor Standards Act.

​Under the PDA, specific accommodations may be required for pregnant women if an employer offers similar accommodations to their nonpregnant employees. The PDA only covers employers with 15 or more employees.

​Also, an amendment to the ADA (ADAAA) requires that pregnancy be treated similarly to other disabling conditions, meaning that a pregnant employee may be able to request and be granted a reasonable accommodation based on her pregnancy, pregnancy-related condition, or post-childbirth recovery. To be entitled to a reasonable accommodation, an employee must be able to show that they have a disability as defined by the ADAAA, even if this disability is temporary.

Reasonable accommodations can include:

  • Reassigning job duties.
  • Reducing heavy lifting or providing assistance.
  • Having a chair to sit in occasionally or sitting full time instead of standing during the workday.
  • Carrying a water bottle. 
  • Taking more frequent breaks to use the restroom, have a snack, or rest.
  • Working a modified or part-time schedule.
  • Taking leave.

​Most pregnant women can continue safely working during pregnancy and typically want to work. Many employers recognize that it is in their best interests to accommodate pregnant employees so they can stay on the job; however, some do not. That is when it would make good sense for a pregnant woman, or one who has just given birth, to consult with a lawyer.

Quick Facts to Know

The PDA prohibits discrimination in all aspects of employment, including hiring, firing, promotion, pay, and other employment benefits. It disallows policies limiting or preventing women from doing jobs simply because they are pregnant or of childbearing age. It also forbids policies that disparately impact women because they are pregnant or able to become pregnant.

You cannot be fired for filing a complaint against your employer if you believe they have violated the PDA.

If you take pregnancy or maternity leave, your employer must hold your job open for the same amount of time a position would be held open for an employee on leave because of sickness or disability.

You do not have to tell potential or current employers that you are pregnant. An employer cannot refuse to hire you because of your pregnancy as long as you can perform the job. An employer cannot ask if you are pregnant or plan to have children.

Philadelphia Employment Discrimination Lawyers at The Gold Law Firm P.C. Advocate for Pregnant Employees

Our experienced Philadelphia employment lawyers at The Gold Law Firm P.C. believe that no one should suffer discrimination at work, including pregnant women. If you have been mistreated because you are pregnant, call us at 215-569-1999 or contact us online to schedule a free consultation. From our offices in Philadelphia and Pennsauken, New Jersey, we represent employees throughout South Jersey and Southeastern Pennsylvania, including Wilkes-Barre, Scranton, Northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.

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