According to the Supreme Court’s decision in Young, a plaintiff can make a case of pregnancy discrimination by showing “that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others similar in their ability or inability to work.” After this is shown, a plaintiff can reach the jury “by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.”
In Young, the Court specifically held that evidence of an employer policy or practice of providing light duty to a large percentage of nonpregnant employees while failing to provide light duty to a large percentage of pregnant workers might establish that the policy or practice significantly burdens pregnant employees. If the employer’s reasons for its actions are not sufficiently strong to justify the burden, that will “give rise to an inference of intentional discrimination.”
The Basics of Pregnancy Discrimination
Title VII of the Civil Rights act of 1965 (Title VII), as amended by the Pregnancy Discrimination Act (PDA), prohibits discrimination based on the following:
- Current Pregnancy
- Past Pregnancy
- Potential or Intended Pregnancy
- Medical Conditions Related to Pregnancy or Childbirth
The PDA ensures 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.” The PDA also requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.
In determining the rights of pregnant workers under the various federal employment laws, employers and employees should keep in mind:
- 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.
- Employers are not required to give maternity leave/medical leave to pregnant employees beyond what is provided under the employer’s leave policies or the employee’s current leave entitlements under the Family and Medical Leave Act (FMLA) and other applicable leave laws. However, employers cannot not extend leave to similarly situated nonpregnant employees and not provide the same leave to pregnant employees.
- Pregnant employees may qualify as disabled under the Americans with Disabilities Act (ADA) and thus be entitled to a reasonable accommodation. Therefore, even if a pregnant employee has exhausted all FMLA leave or maternity/medical leave under the employer’s policies, they still may be entitled to additional leave as a reasonable accommodation under the ADA.
- Employers are legally obligated to provide nursing employees with break time to express breast milk as well as a place for nursing employees to express such milk. The Affordable Care Act amended section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
The updated EEOC guidance was released around same time the EEOC issued a press release announcing that a Winston-Salem health care company agreed to pay $48,000 to settle a pregnancy discrimination lawsuit brought by the EEOC. According to the EEOC’s complaint, a privately owned health care company interviewed and hired Lesley Lawson for a billing and authorization specialist position in early May 2013. A month after being hired, Lawson requested approximately four weeks of maternity leave beginning around August 2013. According to the EEOC’s complaint, Lawson’s supervisor began making plans to cover Lawson’s work while she was away on maternity leave. However, the company fired Lawson in late June 2013 after her supervisor told the company’s then-owner about Lawson’s maternity leave request. The EEOC subsequently brought suit claiming the company unlawfully fired Lawson because of her pregnancy and request for maternity leave.
Employers are encouraged to seek the advice of counsel when denying accommodations or taking adverse employment employees who have recently been pregnant, are currently pregnant, or who have indicated are planning to become pregnant. In light of the updated guidance, employers should review its policies related to light duty and reasonable accommodation requests to ensure they are in line with legitimate business needs and do not impose a significant and indefensible burden on pregnant employees.