While a pregnancy announcement at work can be welcomed and exciting, sometimes it can stress the relationship between employer and employee. Surprisingly, pregnancy discrimination often is one of those awkward discussion topics that tends to be avoided, or it gets tucked neatly away within the company handbook to be dealt with by Human Resources.
Pregnancy discrimination is illegal, and the last thing that you want to do as a business owner is find yourself amid a pregnancy discrimination claim. It’s a serious issue that can leave employers more anxious than the expectant parents were during their first ultrasound. But fear not! Equipping yourself with the right knowledge of the law can better prepare you to run your business and not infringe on anyone’s right to nondiscriminatory treatment in the workplace.
Federal law
The U.S. Equal Employment Opportunity Commission enforces three federal laws that protect job applicants and employees who are pregnant. These three laws are Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act), the Pregnant Workers Fairness Act and the Americans with Disabilities Act.
Title VII (as amended by the Pregnancy Discrimination Act of 1978). This law prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions.[1] Under this law, pregnancy discrimination is described as treating an individual unfavorably in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits (e.g., leave and health insurance), and any other terms or conditions of employment.[2] This discrimination can be based on a current, past or potential pregnancy, a medical condition related to pregnancy or childbirth—including breastfeeding/lactation—having or choosing not to have an abortion, and birth control.[3]
For example, refusing to hire a job applicant solely because she is pregnant is in violation of this law. Another example is terminating a pregnant worker’s employment upon learning of her pregnancy or directly after she takes medical leave.
Title VII requires that every employer, employment agency and labor organization post and maintain a notice in the customary location(s) in the workplace detailing these rights, as well as directions on how to file a complaint under the law.
Pregnant Workers Fairness Act. The PWFA is a federal regulation that requires a covered employer to provide “reasonable accommodation” to a qualified employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions, unless the accommodation would cause such employer an “undue hardship.”[4]
This regulation applies to accommodations only. An example of a potential PWFA violation (and quite possibly a violation of the ADA, if the condition is serious enough) is if an employer rejects a pregnant worker’s request for a later start time due to her experiencing severe morning sickness when it would not cause the employer undue hardship. Another example may be if an employer fails to reasonably accommodate a pregnant employee’s request for additional bathroom breaks.
The PWFA requires that employers place posters to notify employees of their rights under this law in conspicuous locations in the workplace where notices are customarily located.[5]
Americans with Disabilities Act. The ADA is a federal law that prohibits discrimination against an applicant or employee based on a disability, including a disability related to a pregnancy, such as diabetes that develops during pregnancy.[6] Pregnancy is not itself categorized as a disability under the ADA, however, some pregnant workers may have one or more impairments that develop and are related to their pregnancy that will then qualify as a disability under the ADA.[7] This may lead to an employer being required to provide a reasonable accommodation for the pregnancy-related disability.[8]
Under the ADA, employers are required to keep all medical records and information, including that which is related to pregnancy, confidential and in separate medical files.[9]
To be compliant with the ADA, employers must post a notice in an accessible format to applicants, employees, and members of labor organizations, describing the law’s provisions.[10]
Nursing mothers. Laws that protect the rights of nursing mothers in the workplace are just as important, and they can be associated with pregnancy discrimination. Under the Fair Labor Standards Act, employers are required to provide reasonable break time for an employee to express breast milk for a nursing child for one year after the child’s birth each time such employee has need to express the milk.[11] Nursing employees also are entitled to a place to pump at work—other than a bathroom—that is shielded from view and free from intrusion from co-workers and the public.[12]
These rights were extended on Dec. 29, 2022, when President Joe Biden signed the Consolidated Appropriations Act of 2023 into law, which includes the Providing Urgent Maternal Protections for Nursing Mothers Act.[13]
State law
In addition to the federal laws that protect pregnant workers, each state in the PIA Northeast footprint has its own state law(s) that mirror or exceed federal protections. Some states also have laws that create paid family and medical leave programs to offer job protection in connection with pregnancy.
To avoid a pregnancy discrimination claim, it is important to review the laws of each state in which you employ workers to make sure you are abiding by them.
How employers can protect themselves from claims
If this issue makes you nervous, as a precaution you may want to consider employment practices liability insurance to protect your agency against claims of pregnancy discrimination, among other employment-related issues. Typically, EPLI covers claims made by employees (or former employees) regarding wrongful termination, discrimination, sexual harassment and other workplace-related issues.
While EPLI can provide financial protection for legal fees, settlements and judgments, it’s important to note that having this insurance doesn’t prevent discrimination claims from being made. Make sure you understand the specifics of coverage, and how it can best serve your agency.
While having this insurance is great financial protection for your agency, it is essential to implement strong policies and training to minimize the risk of any pregnancy discrimination claims occurring in the first place.
And, if you ever find yourself wondering if what you might be doing as an employer could constitute as pregnancy discrimination, it is always wise to consult your agency attorney to discuss the matter and work toward solutions, so you and your agency remain compliant with the law and your employees feel supported. Here’s to making workplaces better for everyone, one baby step at a time!
This article originally appeared in the January 2025 issue of PIA Magazine.
[2] Ibid.
[3] U.S. Equal Employment Opportunity Commission
[7] Ibid.
[8] Ibid.
[9] Ibid.
[12] Ibid.
[13] Ibid.
Danielle Caswell, Esq.
Danielle Caswell joined PIA Northeast as associate counsel in the Government & Industry Affairs Department in 2023. She earned her bachelor’s degree from New York University and her law degree from Brooklyn Law School with a particular focus on intellectual property, information, and media law. Prior to joining PIA, Danielle was an associate at a law firm in New York City where she focused primarily on intellectual property and entertainment-related transactional and litigation matters.
