The Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964, explicitly prohibits employers with at least 15 employees from sex discrimination on the basis of pregnancy. According to the U.S. Equal Employment Opportunity Commission (EEOC), an employer “may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy.”
While pregnancy is not considered a disability under the federal Americans with Disabilities Act (ADA), pregnancy-related conditions such as morning sickness and back pain may qualify for protection under the ADA Amendments Act (ADAAA), which expanded the definition of “disability” in 2009. “EEOC interpretations indicate that a temporary condition that lasts more than six months could indeed be considered disabling,” notes Robin E. Shea, a partner at employment law firm Constangy, Brooks and Smith LLP in Winston-Salem, N.C.
Shea explains the effect of the ADAAA for employers:
- A pregnant employee with restrictions is arguably similarly situated to a nonpregnant employee with a nonwork-related disability, who must be reasonably accommodated if the accommodation is not an undue hardship for the employer.
- The PDA requires that the pregnant employee be treated the same as her “disabled” nonpregnant counterpart. Under this rule, if an employer accommodates an employee whose disability is a back injury that temporarily prevents the employee from lifting more than 20 pounds, for example, the employer likely must also accommodate the pregnant worker whose pregnancy temporarily prevents her from lifting more than 20 pounds. In addition, some state laws require employers to accommodate limitations arising from pregnancy.
- Therefore, even though reasonable accommodations are not required per se for pregnancy, if the employer offers reasonable accommodations to nonpregnant employees with disabilities (as it must under the ADA and ADAAA), then the employer likely has to do the same for the pregnant employee as well. Otherwise, the employer may be guilty of discrimination against the pregnant employee by offering reasonable accommodations to nonpregnant but not pregnant employees.
“Not only was a 20-pound lifting restriction generally not considered disabling, but virtually no temporary impairment, no matter how severe, was,” notes Shea of the law prior to the ADAAA.
“Now, if the employer offered light duty for other temporarily disabled employees injured for off-work activity, then the employer must provide the same for a pregnant employee.”
The ADA also states that the reasonable accommodation must not impose on the employer an “undue hardship,” a term that is difficult to pin down. “Under the ADA, we almost never rely on the ‘undue hardship’ defense because the burden is too high,” Shea says. However, “There are certain types of accommodation that just aren’t reasonable, according to the court system. For example, the Supreme Court has said that violating a seniority policy to accommodate a disabled employee or creating a new position is unreasonable.”
In addition to the ADA and the PDA, employers must be aware of how the federal Family and Medical Leave Act (FMLA) and its state equivalents extend rights to pregnant employees. The FMLA gives certain employees working for covered employers up to 12 weeks of job-protected unpaid leave during any 12-month period for the following reasons:
- Birth and care of a child.
- Placement of a child for adoption or foster care.
- Care of an immediate family member (spouse, child or parent) with a serious health condition.
- Care of the employee’s own serious health condition, including a medically complicated pregnancy.
Some states, such as California, Connecticut, Maine, New Jersey, Oregon, Washington and Wisconsin, have their own family and medical leave laws. California also has a specific pregnancy protection law that requires any employer with five or more employees to provide up to four months of job-protected disability leave for a woman who is disabled due to pregnancy, childbirth or a related medical condition. If the organization provides more than four months of leave for other types of temporary disabilities, it must provide the same amount to the pregnant woman. The law applies to women working full time and part time as of the date of hire.
A growing number of other states and local jurisdictions, such as Alaska, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Texas and New York City, have passed laws governing how employers must treat pregnant women in the workplace.
Adrienne Fox is a freelance business writer in Alexandria, Va.