Posted on
Pregnancy discrimination in the workplace is both illegal and common. In our experience, we tend to see this take place in seven common scenarios. These are an employer:
- refusing to hire you because you are, or want to become, pregnant,
- refusing to provide reasonable accommodations,
- firing you because of your pregnancy,
- harassing you because of your pregnancy,
- not letting you pump milk,
- retaliating against you for filing a pregnancy discrimination claim, and
- passing you over for a promotion because of your pregnancy.
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.1 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
Firing you for being pregnant is also 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,
- sex,
- sexual orientation,
- gender, including gender expression and identity,
- disability,
- religion,
- age,
- marital status, and
- 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
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
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
It also 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, this type of discrimination constitutes a form of sexual harassment.
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 1 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 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 refusing to promote you due to your pregnancy.
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
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, which changed Title VII to cover pregnant women,
- 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.
Legal References:
- 42 USC 2000e-2(a)(1).
- 42 USC 2000e(k) and Pub. L. No. 95-555.
- 42 USC 12101 et seq.
- 42 USC 12102(1).
- 42 USC 12102(2)(A).
- 42 USC 12102(2)(B).
- 29 CFR 1630.2(o)
- 42 USC 2000e et seq., as amended by the Age Discrimination in Employment Act of 1967 (ADEA) (29 USC 621 et seq.) and the Americans with Disabilities Act of 1990 (ADA) (Pub. L. No. 101-336).
- See California Civil Jury Instructions (CACI) No. 2521A.
- Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).
- Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).
- 42 USC 2000e(k) and Pub. L. No. 95-555.
- Pub. L. No. 111-148 and Pub. L. No. 111-152.
- 29 USC 201 et seq.
- 29 USC 207(r).
- Same.
- Same.
- 29 USC 207(r)(3).
- California Labor Code 1030 LAB.
- See, for example, Barrett v. Forest Labs., Inc. (.
- California Government Code 12926(r) GOV.
- California Government Code 12926(d) GOV.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.