Stereotypes have long placed pregnant women at a disadvantage in the workplace. Employers who assume that pregnant women are not capable of hard work may refuse to hire pregnant job applicants. Employers who assume that a pregnant employee will take advantage of a pregnancy leave and then quit her job may fire the employee as soon as it learns of her pregnancy. Employers who assume that pregnant women are fragile may deprive them of the opportunity to work extra shifts or to perform difficult jobs with higher pay.

Congress responded to negative stereotypes that harm pregnant women in the workforce by enacting the Pregnancy Discrimination Act (PDA). The PDA prohibits discrimination against employees because of their pregnancy status or pregnancy-related health conditions. Unfortunately, too many employers get away with pregnancy discrimination because pregnant women do not consult an employment lawyer after they are fired, harassed, or treated less favorably than employees who are not pregnant.

The Historic Importance of the PDA

The Civil Rights Act of 1964 prohibits employment discrimination because of sex. Since only women become pregnant, it should be obvious that discrimination because of pregnancy is discrimination because of the employee’s gender.

That logic was not apparent to the Supreme Court. In 1976, the Court held that an employer’s decision to exclude pregnancy-related disabilities from a disability benefit plan did not discriminate on the basis of sex. The Court reasoned that the exclusion applies to every employee who becomes pregnant, regardless of gender, so the exclusion was not sexually discriminatory. In dissent, Justice Brennan made the obvious point that denying benefits for a health condition that only affects women is necessarily a gender-based decision.

Some lower courts regarded the Supreme Court’s reasoning as categorically excluding all employment actions based on pregnancy from the prohibition against sex discrimination. Congress responded in 1978 by enacting the PDA.

PDA Protections

The PDA applies to employers that have at least 15 employees. The PDA makes it unlawful for an employer to discriminate against an employee because of her pregnancy or childbirth, or because of a medical condition related to pregnancy or childbirth.

Examples of unlawful discrimination include:

• refusing to hire a job applicant because she is pregnant;
• firing an employee because she is pregnant;
• firing an employee because she is lactating;
• using pregnancy as a reason to treat a pregnant employee less favorably than nonpregnant employees with regard to pay, job assignments, promotions, training, layoffs, fringe benefits, and other terms and conditions of employment;
• taking away seniority or accrued retirement benefits because an employee takes a maternity leave;
• depriving a pregnant employee of a maternity leave when the employer grants leave to nonpregnant employees who are temporarily disabled;
• failing to accommodate an employee’s health condition caused by pregnancy (for example, by providing light duty or alternate job assignments) in the same way an employer would accommodate a nonpregnant employee who is temporarily disabled; and
• harassing an employee because she is pregnant.

The PDA allows victims of pregnancy discrimination to sue for back pay and reinstatement to their position (if they were fired), as well as compensation for emotional distress and punitive damages.

Americans with Disabilities Act

Other employment laws provide additional protections to pregnant employees. While the physical difficulties that accompany a pregnancy are not usually disabling, certain pregnancy-related conditions may constitute a temporary disability that falls within the scope of the Americans with Disabilities Act (ADA).

For example, the Equal Employment Opportunities Commission suggests that preeclampsia and gestational diabetes might qualify as disabilities protected by the ADA, depending on the nature of the impairment that those conditions cause. Even if a pregnant employee is not disabled, the ADA protects employees when their employers regard them as being disabled.

When a disability is protected by the ADA, an employee is entitled to ask an employer for a reasonable accommodation that will permit the pregnant employee to perform her job. Offering more frequent breaks, placing the employee on a part-time schedule, or permitting the employee to work from home might be reasonable accommodations, depending on the circumstances.

Maternity and Parental Leave

Federal and Florida law does not necessarily require an employer to give a pregnant woman a leave so that she can give birth. As noted above, however, it the employer offers short-term sick leave or disability leave for other health conditions, the PDA prohibits the employer from denying a pregnant employee’s request to use that leave to cover time off from work while she gives birth.

In addition, the Family and Medical Leave Act (FMLA) requires some employers to give new mothers an unpaid leave so that they can spend time with their new baby. Employees may generally take up to 12 weeks of unpaid leave. If the employee has accrued vacation time or other paid leave, the employee can usually substitute that paid leave for the unpaid leave provided by the FMLA.

Employers that have 50 or more employees must provide leaves that the FMLA requires. Employees qualify if they have worked for the employer for at least 1,250 hours during the 12 months before the leave starts, and if the employer has 50 employees within 75 miles of the mother’s work location.

An FMLA leave is job protected. The employer must return the employee to her former job or a comparable job after the leave ends. The FMLA also prohibits retaliation against employees who request or take a leave that the employer must provide. Employees have legal remedies when they are denied a parental leave to which they are entitled, when an employer will not allow them to return to work after the leave ends, or when the employer fires or otherwise retaliates against an employee who requests or takes a leave.

Nursing Mothers

A federal law requires most employers to give reasonable break periods to nursing employees each day so that they can express their breast milk. The employer must generally provide a private space, other than a bathroom, for that purpose. The nursing break requirement extends for up to a year after the mother gives birth, provided she has a continuing need to express breast milk.

While most businesses must provide nursing break times, a business with 50 or fewer employees may be exempt if providing the break times would cause an undue hardship. Exemptions from the law’s coverage are the exception rather than the rule.

Legal Assistance for Pregnant Employees

While pregnant employees have significant legal protections, federal and Florida laws require employees to take prompt action to make a discrimination claim. In addition, evidence is easier to gather while the facts are still fresh in everyone’s mind.

Contacting an employment lawyer immediately after an employee suspects she has been the victim of pregnancy discrimination is the best way to preserve an employee’s right to pursue a remedy. Pregnant employees who are not sure whether the law has been broken, as well as employees who are concerned that their employer is likely to violate the law, can contact a Florida employment lawyer to get advice about their particular concerns.

When Saenz & Anderson agrees to represent a victim of pregnancy discrimination under the PDA, ADA, or FMLA, the discrimination victim pays no up-front fee. Federal discrimination laws generally require the employer to pay the discrimination victim’s legal fees and expenses if the victim prevails. We explain all fee agreements in detail before our clients decide whether to retain our services.