10 Examples of Pregnancy Discrimination in The Workplace

Pregnancy discrimination in the workplace is both illegal and common.

A recent study shows a link between a mother and baby’s health and perceived pregnancy discrimination, which is alarming considering more than 70% of all pregnant women are in the workforce. That amounts to 2.8 million women who need accommodations at some point.¹

In our experience, we tend to see pregnancy discrimination take place in ten common scenarios. These are an employer:

1. refusing to hire you because you are, or want to become, pregnant,
2. refusing to provide reasonable accommodations,
3. firing you because of your pregnancy,
4. harassing you because of your pregnancy,
5. not letting you pump milk,
6. retaliating against you for filing a pregnancy discrimination claim,
7. passing you over for a promotion – or taking other adverse employment actions – because of your pregnancy,
8. preventing or limiting your pregnancy-related leave,
9. preventing or limiting your maternity leave, and/or
10. preventing you from coming back to work.

1. Refusing to hire you for pregnancy-related reasons

It is discriminatory to refuse to hire someone because she is pregnant or plans to have children. Just because you are not yet an employee does not mean that you cannot be the victim of discrimination.

Title VII of the federal Civil Rights Act of 1964 makes it an unlawful employment practice for any employer to fail or refuse to hire someone because of their sex. Under the Pregnancy Discrimination Act of 1978 (PDA), the phrase “because of sex” includes discrimination based on:

• pregnancy,
• childbirth, and
• medical conditions related to pregnancy or childbirth.²

Many state laws also prohibit the practice of basing hiring decisions on someone’s pregnancy.

This can mean that employers are not allowed to ask whether you are pregnant or intend to start a family during the job application process. If they do so, you tell them that you are, and then they refuse to hire you, it can be a sign of pregnancy discrimination.

2. Refusing to provide reasonable accommodations

It can also be pregnancy discrimination if your employer does not make reasonable accommodations for any physical or mental impairments that are related to your pregnancy. If you are not suffering a disability from your pregnancy, though, these accommodations do not have to be made.

The Americans with Disabilities Act (ADA) forbids workplace discrimination on the basis of your disability.³ Under this federal law, a “disability” is a physical or mental impairment that substantially limits one or more of your major life activities.⁴ A major life activity includes but is not limited to:

• seeing,
• hearing,
• eating,
• sleeping,
• walking,
• standing,
• lifting,
• bending,
• speaking,
• breathing,
• learning,
• reading,
• concentrating,
• thinking,
• communicating,
• working,
• caring for oneself, and
• performing manual tasks.⁵

It also includes the operation of a major bodily function, like the:

• immune system,
• cell growth,
• digestive,
• bowel,
• bladder,
• neurological,
• brain,
• respiratory,
• circulatory,
• endocrine, or
• reproductive system.⁶

If your pregnancy substantially limits one of these functions or activities, your employer has to make reasonable accommodations so you can perform your job. What accommodations are reasonable are determined on a case-by-case basis.

Generally, though, employers have to modify or adjust your job so you can perform your essential job functions.⁷ This often involves providing light duty to temporarily disabled employees, or altering your work schedule around any morning sickness symptoms you have.

3. Firing you because of your pregnancy

Firing you for being pregnant – or for pumping breast milk – is employment discrimination. It also amounts to wrongful termination because it is based on sex discrimination.

Both state and federal laws forbid terminating workers because they are in a protected class. Examples of protected classes under Title VII of the federal Civil Rights Act of 1964 include:

• race,
• color,
• national origin,
• religion, and
• sex (which includes pregnancy).⁸

Firing someone for having one of these protected traits is discriminatory and unlawful. Because the termination is unlawful, it is also wrongful termination.

4. Harassing you because of your pregnancy

If your employer harasses you for being pregnant, it can amount to pregnancy discrimination. However, isolated or trivial remarks are not sufficient: The harassment has to create a hostile work environment.

To qualify as a hostile work environment, the harassment has to be either:

• severe, or
• pervasive.⁹

Furthermore, the harassment has to be severe or pervasive enough to alter your working conditions.¹⁰ Whether it is sufficiently severe or pervasive involves looking at all of the circumstances.¹¹

Finally, to create a hostile work environment, the harassment has to target a protected class. One such protected class is your sex. Under the Pregnancy Discrimination Act, your sex includes your pregnancy status, childbirth, or pregnancy-related conditions associated with it.¹² Therefore, severe or pervasive harassment based on your pregnancy creates a hostile work environment.

For example if your boss is constantly making vulgar jokes about your pregnancy or threatens to fire you if you “slack off” due to your pregnancy, that could be a hostile work environment.

5. Not letting you pump milk

It can also be discriminatory if your employer does not provide you with a place to pump breast milk during and after your pregnancy. However, not all employers are covered by this anti-discrimination law.

The federal Affordable Care Act (ACA)¹³ amended the Fair Labor Standards Act (FLSA),¹⁴ the most prominent federal employment law. The ACA added protections for pregnant workers who had to express breast milk during and after their pregnancy. The law provides you with:

• a lactation break, and
• a private area to pump milk.¹⁵

The lactation break is unpaid. However, new mothers have a right to it for up to one year after their child’s birth.¹⁶

The private area must be:

• shielded from view,
• free from intrusion from coworkers and the public, and
• something other than a bathroom.¹⁷

However, the law only covers employers who have 50 or more employees. If your employer has fewer than 50 employees, it does not have to provide these breastfeeding protections if it would impose an undue hardship on the company.¹⁸

Many states, like California, provide more robust protections for lactating workers.¹⁹

6. Retaliating against you for filing a pregnancy discrimination claim

If your employer retaliates against you for filing a claim of pregnancy discrimination, that itself is a form of discrimination.

State and federal anti-discrimination laws forbid employers from taking adverse employment actions against workers who make claims of discrimination. Those adverse employment actions include:

• firing you,
• demoting you,
• transferring you to a less desirable position,
• increasing your workload,
• denying you a promotion that you otherwise would have deserved, and
• giving you negative performance reviews that are at odds with your productivity.

If employers were able to take these actions after you made a claim of discrimination, you would probably think twice before making it. This would chill claims of discrimination and lead to more problems in the workplace.

7. Passing you over for a promotion – or taking other adverse employment actions – because of your pregnancy

In the same way Title VII prohibits employers from refusing to hire you due to your pregnancy, Title VII also prohibits employers from taking other adverse employment actions due to your pregnancy. These can include, for example:

• passing you over for a promotion,
• forcing you to take time off,
• forcing you to switch jobs, and/or
• excluding you from training.

Some employers have primeval notions that pregnant workers cannot reach peak performance or may be planning to quit soon. These prejudices must not color an employer’s decisions when deciding whom to promote and when.

If you are up for a promotion and are eligible – and your employer gives the job to someone else – you may have a viable discrimination claim.²⁰

8. Preventing or limiting your pregnancy-related leave

The federal Family and Medical Leave Act (FMLA) requires employers with at least 50 employees to provide 12 weeks of unpaid leave to employees for specified reasons such as pregnancy. If your pregnancy is causing you physical limitations (which is standard in the final weeks), your employer must let you take FMLA leave the same way it would allow other employees who are too ill or injured to work.

Furthermore, if you are pregnant, your employer cannot force you to use your sick days first before you can take FMLA leave (unless your employer requires all employees to use their sick days before using FMLA leave). Plus the length of your leave cannot be shorter than what your employer allows for other employees on medical or short-term disability leave.

9. Preventing or limiting your maternity-leave

In addition to pregnancy and childbirth, a qualifying reason for taking FMLA leave is “baby-bonding.” If you are eligible for FMLA leave, you cannot be forced to cut your maternity leave short. (Note that you can take no more than 12 weeks of FMLA leave in one year: So if you took four weeks for pregnancy, you can take only eight weeks for maternity leave.)

Note that if you have your child through adoption or a surrogate, you are still entitled to maternity leave under the FMLA to bond with a new child. Sometimes we see employers wrongly denying new mothers maternity leave just because they did not give birth.

10. Preventing you from coming back to work

Once you are able to return to work after taking FMLA leave, your employer must have your old job waiting for you. If not, the job must be similar in pay, benefits, and job duties.

Sometimes employers assume new mothers will not be as diligent or ambitious as they were before, and they quietly demote them or just eliminate their jobs. This is unlawful and grounds for a discrimination lawsuit.

What laws forbid pregnancy discrimination?

Numerous state and federal laws forbid pregnancy discrimination. Some are more widespread than others. Some provide greater protections to pregnant employees than others do.

Some federal laws that cover pregnancy discrimination include:

• Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating against you because of your pregnancy,
• Pregnancy Discrimination Act of 1978, which changed Title VII to cover pregnant women and covers workplaces with 15 or more employees,
• Americans with Disabilities Act (ADA), which forbids employers from discriminating against you for a disability that is caused by your pregnancy or related medical conditions,
• Fair Labor Standards Act (FLSA), which provides employees for large employers with lactation breaks and private areas to take them in,
• Affordable Care Act (ACA), which changed the FLSA to provide these breaks and lactation rooms, and
• Family and Medical Leave Act (FMLA), which provides maternity leave to care for a newborn, as well as a source of sick leave during the employee’s pregnancy.

Many states also have their own anti-discrimination laws that provide additional protections. In California, for example, the Fair Employment and Housing Act (FEHA) makes it unlawful for employers to discriminate on the basis of pregnancy.²¹ This law applies to any employer that has 5 or more employees.²²

California also has the Pregnancy Disability Leave Law (PDL), which provides up to 4 months of temporary disability leave per pregnancy. While this is unpaid leave, employers have to continue to provide you with health insurance.

What are my legal options?

If you have been the victim of pregnancy discrimination, you can file a lawsuit against your employer. Before doing so, however, you generally have to exhaust your administrative remedies, first. Only if this does not rectify your workplace situation can you file a lawsuit for discrimination.

You will usually have to file an internal complaint with your company’s human resources department, first. This may involve filing a discrimination demand letter with your employer. Such a demand letter tells your employer that, if the discriminatory practices do not stop, you will take the matter further.

If the internal complaint or demand letter does not produce results, you can file a discrimination claim with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC will facilitate mediation or arbitration to resolve the case. You may also file a similar claim with a similar state agency, as well. In California, for example, your complaint would go to the Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH).

If there is still no resolution to your discrimination case, you can obtain a right-to-sue letter. This allows you to file your lawsuit for pregnancy discrimination in court.

Throughout this process, it is essential to have the legal advice of a pregnancy discrimination attorney.

Additional reading

For more in-depth information, refer to these scholarly articles:

• To tell or not to tell? Examining the role of discrimination in the pregnancy disclosure process at work – Journal of Occupational Health Psychology.
• Pregnancy Discrimination: Pregnant Women Need More Protection in the Workplace – San Diego Law Review.
• Examining the effects of perceived pregnancy discrimination on mother and baby health. – Journal of Applied Psychology.
• Relational Power, Legitimation, and Pregnancy Discrimination – Gender & Society.
• Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act’s Capacity-Based Model – Yale Journal of Law & Feminism.