Pregnancy Discrimination & Harassment
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
OVERVIEW OF STATUTORY PROTECTIONS
Pregnancy Discrimination Act
Congress enacted the Pregnancy Discrimination Act in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Thus, the Pregnancy Discrimination Act extended to pregnancy Title VII’s goals of achieving equality of employment opportunities and removing barriers that have operated in the past to favor an identifiable group of employees.
By enacting the Pregnancy Discrimination Act, Congress sought to make clear that pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.
Fundamental Pregnancy Discrimination Act Requirements
In the years since the Pregnancy Discrimination Act was enacted, charges alleging pregnancy discrimination have increased substantially. In fiscal year (FY) 1997, more than 3,900 such charges were filed with the Equal Employment Opportunity Commission (EEOC) and state and local Fair Employment Practices Agencies, but in FY 2013, 5,342 charges were filed.
In 2008, a study by the National Partnership for Women & Families found that pregnancy discrimination complaints have risen at a faster rate than the steady influx of women into the workplace. This suggests that pregnant workers continue to face inequality in the workplace. Moreover, the study found that much of the increase in these complaints has been fueled by an increase in charges filed by women of color. Specifically, pregnancy discrimination claims filed by women of color increased by 76% from FY 1996 to FY 2005, while pregnancy discrimination claims overall increased 25% during the same time period.
The issues most commonly alleged in pregnancy discrimination charges have remained relatively consistent over the past decade. The majority of charges include allegations of discharge based on pregnancy. Other charges include allegations of disparate terms and conditions of employment based on pregnancy, such as closer scrutiny and harsher discipline than that administered to non-pregnant employees, suspensions pending receipt of medical releases, medical examinations that are not job related or consistent with business necessity, and forced leave.
Americans with Disabilities Act (ADA)
Part I of this document provides guidance on Title VII’s prohibition against pregnancy discrimination. It describes the individuals to whom the Pregnancy Discrimination Act applies, the ways in which violations of the Pregnancy Discrimination Act can be demonstrated, and the Pregnancy Discrimination Act’s requirement that pregnant employees be treated the same as employees who are not pregnant but who are similar in their ability or inability to work (with a particular emphasis on light duty and leave policies). Part II addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnancy-related impairments, particularly when employees with pregnancy-related impairments would be entitled to reasonable accommodation, and describes some specific accommodations that may help pregnant workers. Part III briefly describes other requirements unrelated to the Pregnancy Discrimination Act and the ADA that affect pregnant workers. Part IV contains best practices for employers.
i. the pregnancy discrimination act
A. Pregnancy Discrimination act coverage
In passing the Pregnancy Discrimination Act, Congress intended to prohibit discrimination based on “the whole range of matters concerning the childbearing process,” and gave women “the right . . . to be financially and legally protected before, during, and after [their] pregnancies.” Thus, the Pregnancy Discrimination Act covers all aspects of pregnancy and all aspects of employment, including hiring, firing, promotion, health insurance benefits, and treatment in comparison with non-pregnant persons similar in their ability or inability to work.
Extent of Pregnancy Discrimination Act Coverage
Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination based on the following:
- Current Pregnancy
- Past Pregnancy
- Potential or Intended Pregnancy
- Medical Conditions Related to Pregnancy or Childbirth
1. current pregnancy
The most familiar form of pregnancy discrimination is discrimination against an employee based on her current pregnancy. Such discrimination occurs when an employer refuses to hire, fires, or takes any other adverse action against a woman because she is pregnant, without regard to her ability to perform the duties of the job.
a. Employer’s Knowledge of Pregnancy
If those responsible for taking the adverse action did not know the employee was pregnant, there can be no finding of intentional pregnancy discrimination. However, even if the employee did not inform the decision makers about her pregnancy before they undertook the adverse action, they nevertheless might have been aware of it through, for example, office gossip or because the pregnancy was obvious. Since the obviousness of pregnancy “varies, both temporally and as between different affected individuals,” an issue may arise as to whether the employer knew of the pregnancy.
example 1 -Knowledge of Pregnancy
When Germaine learned she was pregnant, she decided not to inform management at that time because of concern that such an announcement would affect her chances of receiving a bonus at the upcoming anniversary of her employment. When she was three months pregnant, Germaine’s supervisor told her that she would not receive a bonus. Because the pregnancy was not obvious and the evidence indicated that the decision makers did not know of Germaine’s pregnancy at the time of the bonus decision, there is no reasonable cause to believe that Germaine was subjected to pregnancy discrimination.
b. stereotypes and Assumptions
Adverse treatment of pregnant women often arises from stereotypes and assumptions about their job capabilities and commitment to the job. For example, an employer might refuse to hire a pregnant woman based on an assumption that she will have attendance problems or leave her job after the child is born. Employment decisions based on such stereotypes or assumptions violate Title VII. As the Supreme Court has explained, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Such decisions are unlawful even when an employer relies on stereotypes unconsciously or with a belief that it is acting in the employee’s best interest.
example 2 – Stereotypes and Assumptions
Three months after Maria told her supervisor that she was pregnant, she was absent several days due to an illness unrelated to her pregnancy. Soon after, pregnancy complications kept her out of the office for two additional days. When Maria returned to work, her supervisor said her body was trying to tell her something and that he needed someone who would not have attendance problems. The following day, Maria was discharged. The investigation reveals that Maria’s attendance record was comparable to, or better than, that of non-pregnant co-workers who remained employed. It is reasonable to conclude that her discharge was attributable to the supervisor’s stereotypes about pregnant workers’ attendance rather than to Maria’s actual attendance record and, therefore, was unlawful.
example 3 – Stereotypes and Assumptions
Darlene, who is visibly pregnant, applies for a job as office administrator at a campground. The interviewer tells her that July and August are the busiest months of the year and asks whether she will be available to work during that time period. Darlene replies that she is due to deliver in late September and intends to work right up to the delivery date. The interviewer explains that the campground cannot risk that she will decide to stop working earlier and, therefore, will not hire her. The campground’s refusal to hire Darlene on this basis constitutes pregnancy discrimination.
2. Past Pregnancy
An employee may claim she was subjected to discrimination based on past pregnancy, childbirth, or related medical conditions. The language of the Pregnancy Discrimination Act does not restrict claims to those based on current pregnancy. As one court stated, “It would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place.”
A causal connection between a claimant’s past pregnancy and the challenged action more likely will be found if there is close timing between the two. For example, if an employee was discharged during her pregnancy-related medical leave (i.e., leave provided for pregnancy or recovery from pregnancy) or her parental leave (i.e., leave provided to bond with and/or care for a newborn or adopted child), and if the employer’s explanation for the discharge is not believable, a violation of Title VII may be found.
example 4 – Unlawful Discharge During Pregnancy or Parental Leave
Shortly after Teresa informed her supervisor of her pregnancy, he met with her to discuss alleged performance problems. Teresa had consistently received outstanding performance reviews during her eight years of employment with the company. However, the supervisor now for the first time accused Teresa of having a bad attitude and providing poor service to clients. Two weeks after Teresa began her pregnancy-related medical leave, her employer discharged her for poor performance. The employer produced no evidence of customer complaints or any other documentation of poor performance. The evidence of outstanding performance reviews preceding notice to the employer of Teresa’s pregnancy, the lack of documentation of subsequent poor performance, and the timing of the discharge support a finding of unlawful pregnancy discrimination.
A lengthy time difference between a claimant’s pregnancy and the challenged action will not necessarily foreclose a finding of pregnancy discrimination if there is evidence establishing that the pregnancy, childbirth, or related medical conditions motivated that action. It may be difficult to determine whether adverse treatment following an employee’s pregnancy was based on the pregnancy as opposed to the employee’s new childcare responsibilities. If the challenged action was due to the employee’s caregiving responsibilities, a violation of Title VII may be established where there is evidence that the employee’s gender or another protected characteristic motivated the employer’s action.
3. Potential or Intended Pregnancy
The Supreme Court has held that Title VII prohibits an employer from discriminating against a woman because of her capacity to become pregnant. Thus, women must not be discriminated against with regard to job opportunities or benefits because they might get pregnant.
a. Discrimination Based on Reproductive Risk
An employer’s concern about risks to the employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman with childbearing capacity. This principle led the Supreme Court to conclude that a battery manufacturing company violated Title VII by broadly excluding all fertile women — but not similarly excluding fertile men — from jobs in which lead levels were defined as excessive and which thereby potentially posed hazards to unborn children.
The policy created a facial classification based on sex, according to the Court, since it denied fertile women a choice given to fertile men as to whether they wished to risk their reproductive health for a particular job. Accordingly, the policy could only be justified if the employer proved that female infertility was a bona fide occupational qualification (BFOQ). The Court explained that decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.
b. Discrimination Based on Intention to Become Pregnant
Title VII similarly prohibits an employer from discriminating against an employee because of her intention to become pregnant. As one court has stated, “Discrimination against an employee because she intends to, is trying to, or simply has the potential to become pregnant is . . . illegal discrimination.” In addition, Title VII prohibits employers from treating men and women differently based on their family status or their intention to have children.
Because Title VII prohibits discrimination based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become pregnant. The EEOC will generally regard such an inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.
example 5 – Discrimination Based on Intention to Become Pregnant
Anne, a high-level executive who has a two-year-old son, told her manager she was trying to get pregnant. The manager reacted with displeasure, stating that the pregnancy might interfere with her job responsibilities. Two weeks later, Anne was demoted to a lower paid position with no supervisory responsibilities. In response to Anne’s EEOC charge, the employer asserts it demoted Anne because of her inability to delegate tasks effectively. Anne’s performance evaluations were consistently outstanding, with no mention of such a concern. The timing of the demotion, the manager’s reaction to Anne’s disclosure, and the documentary evidence refuting the employer’s explanation make clear that the employer has engaged in unlawful discrimination
c. Discrimination Based on Infertility Treatment
Employment decisions related to infertility treatments implicate Title VII under limited circumstances. Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure. In contrast, with respect to the exclusion of infertility from employer-provided health insurance, courts have generally held that exclusions of all infertility coverage for all employees is gender neutral and does not violate Title VII. Title VII may be implicated by exclusions of particular treatments that apply only to one gender.
d. Discrimination Based on Use of Contraception
Depending on the specific circumstances, employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and/or pregnancy. Contraception is a means by which a woman can control her capacity to become pregnant, and, therefore, Title VII’s prohibition of discrimination based on potential pregnancy necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives. For example, an employer could not discharge a female employee from her job because she uses contraceptives.
Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. Because prescription contraceptives are available only for women, a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, prescription drugs that prevent high blood pressure or to lower cholesterol levels, and/or preventive dental care, then prescription contraceptives also must be covered.
4.medical condition related to pregnancy or childbirth
a. Discrimination Based on Reproductive Risk
Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.
example 6 – Uniform Application of Leave Policy
Sherry went on medical leave due to a pregnancy-related condition. The employer’s policy provided four weeks of medical leave to employees who had worked less than a year. Sherry had worked for the employer for only six months and was discharged when she did not return to work after four weeks. Although Sherry claims the employer discharged her due to her pregnancy, the evidence showed that the employer applied its leave policy uniformly, regardless of medical condition or sex and, therefore, did not engage in unlawful disparate treatment.
Title VII also requires that an employer provide the same benefits for pregnancy-related medical conditions as it provides for other medical conditions. Courts have held that Title VII’s prohibition of discrimination based on sex and pregnancy does not apply to employment decisions based on costs associated with the medical care of employees’ offspring. However, taking an adverse action, such as terminating an employee to avoid insurance costs arising from the pregnancy-related impairment of the employee or the impairment of the employee’s child, would violate Title I of the ADA if the employee’s or child’s impairment constitutes a “disability” within the meaning of the ADA. It also might violate Title II of the Genetic Information Nondiscrimination Act and/or the Employee Retirement Income Security Act.
b. Discrimination Based on Lactation and Breastfeeding
There are various circumstances in which discrimination against a female employee who is lactating or breastfeeding can implicate Title VII. Lactation, the postpartum production of milk, is a physiological process triggered by hormones. Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination. For example, a manager’s statement that an employee was demoted because of her breastfeeding schedule would raise an inference that the demotion was unlawfully based on the pregnancy-related medical condition of lactation.
To continue producing an adequate milk supply and to avoid painful complications associated with delays in expressing milk, a nursing mother will typically need to breastfeed or express breast milk using a pump two or three times over the duration of an eight-hour workday. An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Finally, because only women lactate, a practice that singles out lactation or breastfeeding for less favorable treatment affects only women and therefore is facially sex-based. For example, it would violate Title VII for an employer to freely permit employees to use break time for personal reasons except to express breast milk.
Aside from protections under Title VII, female employees who are breastfeeding also have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that requires employers to provide reasonable break time and a private place for hourly employees who are breastfeeding to express milk.