Pregnancy DISCRIMINATION AND PREGNANCY DISABILITY LEAVE – Frequently Asked Questions
what are my employment rights if I am or become pregnant?
If your employer has five or more employees, you are entitled to rights and protections under California state law in the event of pregnancy, childbirth, loss of pregnancy, and related physical and mental conditions. These rights and protections include the right to reasonable accommodations and the right to time off from work. Employers who fire, refuse to hire, bar, harass, discharge, cut hours, or take any other retaliatory action because of a woman’s pregnancy, childbirth, or related condition may be liable for pregnancy discrimination.
What is a pregnancy disability?
A pregnancy disability is a physical or mental condition related to pregnancy or childbirth that prevents you from performing essential duties of your job, or if your job would cause undue risk to you or your pregnancy’s successful completion. Examples of pregnancy disability may include, but are not limited to: severe morning sickness, prenatal or postnatal care, need for bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, lactation conditions such as mastitis, loss or end of pregnancy, and recovery from loss or end of pregnancy. Examples of pregnancy discrimination are therefore the employer’s failure to accommodate these conditions or symptoms.
What if I have restrictions due to my pregnancy?
You may be entitled to accommodations if you have a pregnancy disability. Accommodations are changes to the work environment that allow you to perform your job. Examples of changes or accommodations are:
- Modified work duties to be less strenuous.
- Use of a stool or chair while performing work duties.
- Temporary transfer to a less strenuous or hazardous job offered by your employer.
- Longer or more frequent breaks.
- Private lactation accommodations.
- Pregnancy Disability Leave.
- Additional leave as a reasonable accommodation at the end of Pregnancy Disability Leave.
Whether you are entitled to any particular accommodation will depend upon the circumstances of your pregnancy-related disability and your workplace. However, an employer’s failure to accommodate these conditions or symptoms may be proof of pregnancy discrimination.
What is Pregnancy Disability Leave?
Pregnancy Disability Leave is leave from work to accommodate employees with a pregnancy disability. Your health care provider will recommend how long you need to take leave from work, but you are entitled to up to four monthsof Pregnancy Disability Leave per pregnancy. This leave is in addition to any other leave for which you may be eligible under the provisions of the Fair Employment and Housing Act, California Medical Leave Act, other state laws and local ordinances, and your employer’s leave policies. If your employer has a policy of providing more than four months of leave for other disabilities, then your employer must also provide you with the same leave, if required by your pregnancy-related disability.
Am I eligible for Pregnancy Disability Leave?
If your employer employs five or more employees and you have a pregnancy disability, you are eligible for Pregnancy Disability Leave. There is no minimum requirement for number of hours or years worked to be eligible. Your health care provider should recommend Pregnancy Disability Leave in order to apply for it.
Do I have to take my Pregnancy Disability Leave all at once?
You may take your Pregnancy Disability Leave all at once or “intermittently.” Intermittent Pregnancy Disability Leave is taking leave in small increments, which can be hours, days, weeks or months. This could mean taking a few hours off every day, or taking a few days or weeks off at a time. EXAMPLES: Working 4 hours per day instead of 8. Working 4 days per week instead of 5. Starting work later in the day 5 days per week. Taking 2 weeks off at a time. Taking 4 months off at once.
How do I request Pregnancy Disability Leave?
If you think you may have to take time off from work for your pregnancy-related disability, inform your employer as soon as possible. If possible, give your employer 30 days’ notice. Your employer must give you a written guarantee that you will be reinstated to your same job after Pregnancy Disability Leave, if you request it. Your employer may require that you provide a written medical certification from your health care provider substantiating your need for leave.
Will I lose my job if I take Pregnancy Disability Leave?
It is illegal for your employer to fire you because you are pregnant or because you are taking Pregnancy Disability Leave. However, Pregnancy Disability Leave does not protect you from employment actions not related to your pregnancy, such as layoffs. Employers are otherwise required by law to reinstate you to the same job you had before taking leave. In some situations, you may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job you had before taking Pregnancy Disability Leave.
If I am transferred as part of pregnancy disability accommodation, will I be transferred back to my original job?
Your employer is required to reinstate you to your original job after you are no longer disabled by pregnancy. In some situations, you may be reinstated to a comparable job (same tasks, skills, benefits, and pay).
Will I be paid if I take Pregnancy Disability Leave?
If your employer pays employees for other temporary disability leave, then your employer must pay you for your Pregnancy Disability Leave. You will be paid if you use paid vacation or paid time off during your Pregnancy Disability Leave. You may also collect partial wage replacement if you pay into State Disability Insurance (SDI). You may also be eligible for paid leave through other state laws or local ordinances, such as Paid Family Leave Benefits. http://www.edd.ca.gov/disability/Am_I_Eligible_for_PFL_Benefits.htm
Will Pregnancy Disability Leave count for sick or vacation time?
Your employer may require you to use available sick leave during Pregnancy Disability Leave. If your employer does not require you to use available sick leave during Pregnancy Disability Leave, you may use it at your discretion. Your employer may not require you to use vacation or paid time off. You may use vacation or paid time off at your discretion during Pregnancy Disability Leave.
Will I continue to be covered by my employer’s group health coverage during Pregnancy Disability Leave?
Yes. Your employer is required to pay for the continuation of your group health coverage (if you are covered by your employer) for all four months of your Pregnancy Disability Leave
Will I lose seniority or benefits if I take Pregnancy Disability Leave?
You will not lose seniority or benefits while taking Pregnancy Disability Leave. If your employer allows employees to accrue seniority and/or benefits while on other temporary disability leave or during sick or vacation leave, then you will continue to accrue seniority and/or benefits while on Pregnancy Disability Leave.
What if I am still experiencing a pregnancy disability after my four months of Pregnancy Disability Leave are up?
If you have completed your four months of Pregnancy Disability Leave, you may be eligible for leave under CFRA and you are still entitled to “reasonable accommodation” under the Fair Employment and Housing Act, which may include additional time off from work (see information about “CFRA” below).
What is a reasonable accommodation?
Reasonable accommodation is a change in the work environment or the way a job is done in order to accommodate your pregnancy disability while still performing the essential functions of your job. This caninclude taking more leave from work. Talk to your health care provider and your employer about necessary reasonable accommodations.
What accommodations am I entitled to for lactation?
You are entitled to breaks while at work in order to lactate or express milk in private. You may be entitled to Pregnancy Disability Leave for lactation-related medical conditions (such as mastitis). Ask your doctor if you need time off work for a lactation-related medical condition.
Am I entitled to leave to bond with my new child?
Yes. After you take Pregnancy Disability Leave, you are entitled to 12 additional weekswithin 12 months of birth, adoption, or beginning of foster care, to bond with your new child under the California Family Rights Act (“CFRA”). Both parents of the child are entitled to bonding leave. CFRA leave may be limited to 12 weeks total for both parents if both parents work at the same company. However, CRFA has different requirements than Pregnancy Disability Leave. CFRA leave may also be taken to care for a sick family member.
What are the CFRA requirements?
In order to take bonding leave under CFRA, you must have worked for your employer for at least 1,250 hours in the past 12 months, and the employer must have at least 50 employees who work within a 75-mile radius of your workplace location.
Am I entitled to any leave in addition to Pregnancy Disability Leave and CFRA bonding leave?
Maybe. The FEHA is clear that Pregnancy Disability Leave operates in addition to other provisions of the Act. You therefore may be entitled to leave as a reasonable accommodation, even beyond what the Pregnancy Disability Leave requires. You may also be entitled to leave under the Family & Medical Leave Act (FMLA). Both parents are entitled to FMLA leave. Additionally, you may be entitled to leave under FMLA to care for a family member.
What if I qualify for Pregnancy Disability Leave, CFRA, and Family & Medical Leave?
You are entitled to take leave under each Pregnancy Disability Leave, CFRA, and FMLA, if you qualify. Pregnancy Disability Leave and FMLA may run at the same time. CFRA will be counted separately from Pregnancy Disability Leave. CFRA will also be counted separately from FMLA taken for pregnancy disability, childbirth, or related medical conditions. Pregnancy Disability Leave and FMLA run at the same time because both cover pregnancy-related medical conditions. You will receive an additional 12 weeks of bonding leave under CFRA if you qualify.
I’m transgender and I have a pregnancy disability. Am I eligible for Pregnancy Disability Leave and other reasonable accommodations?
Yes. Transgender employees who have pregnancy disabilities are entitled to all the same rights and accommodations afforded any other employee with pregnancy related conditions. Failure to provide these accommodation may be used as evidence of pregnancy discrimination.
Can I be fired or otherwise punished for taking Pregnancy Disability Leave or reasonable accommodation?
No. It is illegal for an employer to terminate, punish, refuse to hire, harass, or discriminate against you for taking Pregnancy Disability Leave or reasonable accommodation for your pregnancy-related condition.
Can my employer require me to take Pregnancy Disability Leave?
No. Your employer may not force you to take Pregnancy Disability Leave. Even if you choose not to take Pregnancy Disability Leave, you are still entitled to reasonable accommodations for your pregnancy-related condition. EXAMPLE: Your physician recommends that you spend less time than your normal 40 hours per week at work during your pregnancy. If you are able to complete essential functions of your job from home, you may request telework for one day per week as a reasonable accommodation in order to save your Pregnancy Disability Leave for after childbirth. Your employer is required to grant you this reasonable accommodation and may not require you to use Pregnancy Disability Leave instead of telework.
I think my rights to Pregnancy Disability Leave and/or reasonable accommodation have been violated. What do I do?
If you think your rights have been violated, you should immediately contact a pregnancy discrimination attorney who will file a complaint with the Department of Fair Employment and Housing (DFEH).
Pregnancy Disability Leave, CFRA, and FMLA Requirements and Obligations
|?||Pregnancy Disability Leave (Pregnancy Disability Leave)||Bonding Leave (CFRA)||Family & Medical Leave Act (FMLA)|
|I am eligible if:||I have a pregnancy disability, and my employer has at least 5 employees.||I have worked for my employer for 1+ year, I have 1250+ hours of service in the past year, and 50+ employees work within 75 mile radius.||I have worked for my employer for 1+ year, I have 1250+ hours of service in the past year, and 50+ employees work within 75 mile radius.|
|How much leave do I get?||4 months, based on hours worked per week||12 weeks within one year of the child’s birth, adoption, or start of foster care. This leave will run after Pregnancy Disability Leave and may run after FMLA.||12 weeks within one year of the child’s birth adoption, or start of foster care OR because of a serious pregnancy-related medical condition. This leave will run at the same time as Pregnancy Disability Leave.|
|Should I notify my employer when I’m going to take leave?||Yes. Give your employer as much notice as possible.||Yes.||Yes. Give your employer 30 days’ notice if possible.|
|Am I required to take leave all at once?||No. You may take your leave all at once or intermittently.||No. You may take bonding leave in separate 2-week blocks, so long as it is within 1 year of birth.||Maybe. You are entitled to intermittent leave if you or your child has a serious health condition related to the pregnancy. Otherwise, you need the approval of your employer to take intermittent leave.|
|Will I lose my job while on leave?||No. You will be reinstated to your same or comparable job notwithstanding layoffs, etc.||No. You will be reinstated to your same or comparable job notwithstanding layoffs, etc.||No. You will be reinstated to your same or comparable job notwithstanding layoffs, etc.|
|Will I be paid on leave?||Maybe. If your employer pays employees on temporary disability, if you use vacation time/paid time off, or if you pay into SDI.||Maybe. If you use paid vacation time, paid leave, or paid time off, you will be paid. Or if you use Paid Family Leave. Otherwise, bonding leave is unpaid.||Maybe. If you use accrued paid leave during FMLA leave, you will be paid. Otherwise, FMLA leave is unpaid.|
|Am I required to use sick/vacation time?||You may be required to use sick time. You are not required to use vacation time or paid time off.||You may elect to use, or your employer may require you to use: vacation time, sick leave, or paid time off.||You may elect to use, or your employer may require you to use: vacation time, sick leave, or paid time off.|
|Will my employer continue to pay for my health coverage?||Yes. Your employer must pay for the continuation of your group health benefits for all 4 months of Pregnancy Disability Leave if your employer normally pays for those benefits.||Yes. Your employer must pay for the continuation of your group health benefits if your employer normally pays for those benefits.||Yes. Your employer must pay for the continuation of your group health benefits if your employer normally pays for those benefits.|
|Will I lose seniority or benefits?||No. You may accrue seniority or benefits if your employer allows accrual for other disability leave.||No. You may accrue seniority or benefits if your employer allows accrual for other forms of leave.||No. You may accrue seniority or benefits if your employer allows accrual for other forms of leave.|
|Do I need to provide a medical certification?||Maybe. Your employer may require medical certification.||Maybe. Your employer may require medical certification of a serious health condition.||Maybe. Your employer may require medical certification of a serious health condition.|
|Is my partner/spouse entitled to leave?||No. Pregnancy Disability Leave only applies to the parent who has a disability related to the pregnancy.||Yes. Both parents are entitled to bonding leave, but if you both work for the same employer, your employer may allow 12 weeks leave total for both parents.||Yes.|
(Source: California Department of Fair Employment and Housing)
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.
Hiring and Working Conditions
An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of her job. An employer cannot refuse to hire her because of its prejudices against pregnant workers or because of the prejudices of co-workers, clients, or customers. The Pregnancy Discrimination Act also forbids discrimination based on pregnancy when it comes to any other aspect of employment, including pay, job assignments, promotions, layoffs, training, fringe benefits (such as leave and health insurance), hiring, firing, and any other term or condition of employment.
Pregnancy and Maternity Leave
An employer may not single out pregnancy related conditions for medical clearance procedures that are not required of employees who are similar in their ability or inability to work. For example, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy related conditions to do the same.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. Nor may an employer have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
Under the Pregnancy Discrimination Act, an employer that allows temporarily disabled employees to take disability leave or leave without pay must allow an employee who is temporarily disabled due to pregnancy to do the same. Employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave.
Further, under the Family and Medical Leave Act of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid, or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.
Pregnancy Discrimination and Temporary Disability
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay.
Additionally, impairments resulting from pregnancy (for example, gestational diabetes) may be disabilities under the Americans with Disabilities Act. An employer may have to provide a reasonable accommodation for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). For example, an employer may be required to provide modified duties for an employee with a 20-pound lifting restriction stemming from pregnancy related sciatica, absent undue hardship. The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.
Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as expenses for other medical conditions. The Pregnancy Discrimination Act specifies, however, that insurance coverage for expenses arising from abortion is not required, except where the life of the mother is endangered or medical complications arise from an abortion.
Pregnancy related expenses should be reimbursed in the same manner as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charge basis. The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions. No additional or larger deductible can be imposed.
Under Title VII, benefits can be denied for medical costs arising from an existing pregnancy if a health insurance plan excludes benefit payments for pre-existing conditions. Other laws, however, may apply to the coverage of pre-existing conditions.
Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.
Equal Access to Benefits
If an employer provides any benefits to workers on medical leave, the employer must provide the same benefits for those on medical leave for pregnancy related conditions.
Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
- 11036. Prohibition against Harassment.
As set forth in Government Code sections 12926 and 12940, it is an unlawful employment practice for any employer with one or more employees or other covered entities to harass an employee or applicant because of pregnancy or perceived pregnancy, childbirth, breastfeeding, or any related medical conditions.
If your employer pays employees for other temporary disability leave, then your employer must pay you for your Pregnancy
(Source: California Code of Regulations)
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.