Labor and Employment

Avoiding Pregnancy Discrimination in the Workplace

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Learn your company's obligations when it comes to pregnant employees in the workplace.

Under Title VII of the federal Civil Rights Act of 1964, employers with at least 15 employees may not make job decisions based on certain protected characteristics, including sex. Congress passed the Pregnancy Discrimination Act (PDA) in 1978 as an amendment to Title VII, to make clear that firing, demoting, or otherwise penalizing employees because they are pregnant is a form of illegal sex discrimination.

Your company might also have a legal obligation to provide time off to employees who are temporarily unable to work due to pregnancy and childbirth. In some circumstances, your company might also need to provide reasonable accommodations to pregnant employees to allow them to do their jobs.

Understanding Pregnancy Discrimination

Your company may not make work decisions based on pregnancy, childbirth, or related conditions. Among other things, this means you may not fire an employee because she is pregnant, force an employee to take leave or to stop working at a certain point in her pregnancy, or demote or transfer an employee because she has just returned from work after having a child.

Often, pregnancy discrimination is based on old-fashioned stereotypes about what pregnant women—or new mothers—can, should, or will want to do. For example, an employer might require a waitress to take time off late in her pregnancy, based on a belief that pregnant women should not be on their feet all day. Or, an employer might move a pregnant woman to a part-time position, based on the assumption that she won’t want to work full time after having a child. Or, an employer might demote a new mother to a position that doesn’t require business travel, guessing that she won’t want to be away from her child. These are all forms of pregnancy discrimination, regardless of the intention behind them.

Reasonable Accommodations for Pregnant Employees

It is illegal for a company to provide light duty or other accommodations to all employees with work restrictions except for pregnant employees. The PDA requires employers to give pregnant employees the same job accommodations provided to employees who are temporarily disabled by other health conditions. For example, if an employer routinely allows employees who are recovering from surgery to work part time or to work a light-duty position, it would likely have to provide the same accommodations to a pregnant employee with similar work restrictions. (Learn more on the rules for light duty during pregnancy.)

An employee with a pregnancy-related or childbirth-related health condition that qualifies as a disability is entitled to a reasonable accommodation under the federal Americans with Disabilities Act (ADA). For example, if an employee suffers from gestational diabetes, your company would need to accommodate the employee’s condition, just as it would need to accommodate an employee with diabetes unrelated to pregnancy. Normal pregnancy and childbirth are not considered disabilities under the ADA. However, some state laws (including California’s) require employers to provide reasonable accommodations to all pregnant employees, even if their conditions don’t qualify as disabilities.

Time Off Work

Your company may also need to allow employees to take time off for pregnancy-related conditions, childbirth, and bonding with a new child. Under the federal Family and Medical Leave Act (FMLA), employers with at least 50 employees must allow eligible employees to take up to 12 weeks of unpaid leave for certain medical and caretaking reasons. Pregnant employees can take FMLA leave for prenatal care, incapacitation due to pregnancy or childbirth (for example, severe morning sickness or medically prescribed bed rest), and bonding with a new child. (For more information, see our article on Family and Medical Leave.)

Some states, including California, also require employers to provide unpaid time off for pregnancy disability—the period of time when an employee is physically unable to work due to pregnancy and childbirth—and for parenting leave. These laws may apply to smaller employers or provide additional time off than required by the FMLA.

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Bruce L. Atkins, Esq. | May 26, 2015
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