pregnancy discrimination

Pregnancy Discrimination

When you’re discriminated against for being pregnant, you’re also being discriminated against because of your gender. It’s important to contact a Dallas employment attorney if you are experiencing pregnancy discrimination in the workplace. Pregnancy does not and should not have an impact on your work product; thus, Congress had to instate the Pregnancy Discrimination Act (PDA) as a 1978 amendment to Title VII of the Civil Rights Act of 1964 to make this explicit. The purpose of the amendment was to combat those who wished to discriminate against women by veiling it as discrimination of a temporary status: pregnancy. In all, the PDA is an incredibly important piece of the law for preventing pregnancy discrimination in the workplace. Discriminating based on pregnancy is sex discrimination which fits into the language of Title VII but, thankfully, is made explicit by this amendment.

One case that shows why the PDA is so important is Geduldig v. Aiello. 417 U.S. 484 (1974). That case held that a state law barring pregnancy-related benefits for common work disability was constitutional. The Court rationalized that pregnancy was an objective characteristic distinct from sex and, thus, distinct from sex discrimination. Id. at 496 n.20. This case was followed by General Elec. Co. v. Gilbert held in 1976 that pregnancy discrimination was still not covered by Title VII sex discrimination. 429 U.S. 125 (1976). These two cases are clearly no longer good law and have become a focal point for describing why some laws need to be explicit to prevent pregnancy discrimination in the workplace. Failures by the Supreme Court, such as in Gilbert and Geduldig, show why the PDA was a necessary, explicit amendment to Title VII. 

Pre-Pregnancy

Pregnancy discrimination at work has been considered illegal by most people for quite a long time. There are, however, no specific laws or true texts restricting employers from asking whether someone intends to become pregnant, but an employer cannot discriminate based on the intent to be pregnant. The EEOC has stated that “an employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant.”1  This does not, however, cover asking about intent to become pregnant. EEOC advises employers against this practice because it may show an intent to discriminate against those that become pregnant. If you are struggling with pregnancy discrimination at work, make sure to read the rest of this blog series and contact one of our employment lawyers in Dallas.

Congress instated the Pregnancy Discrimination Act (PDA) as a 1978 amendment to Title VII of the Civil Rights Act of 1964 to make this explicit. The purpose of the amendment was to combat those who wished to discriminate against women by veiling it as discrimination of a temporary status: pregnancy. In all, the PDA is an incredibly important piece of the law.  Discriminating based on pregnancy is sex discrimination which fits into the language of Title VII but, thankfully, is made explicit by this amendment.

The PDA prevents discrimination “on the basis of pregnancy” and discriminating against the intention to be pregnant is, clearly, on the basis of pregnancy. As cases like Maldonado v. U.S. Bank and Griffin v. Sisters of Saint Francis, Inc. show, the PDA was designed to protect women based on their capacity to become pregnant which, therefore, covers a woman’s intention to become pregnant.  See 186 F.3d 759 (7th Circ., 1999) and 489 F.3d 838 (7th Circ., 2007).

A number of federal courts that have been asked this question to have answered in the plaintiff-affirmative: yes, employees are protected from discrimination if they intend to be pregnant. Women who are asked about their pregnancy-related intentions are not required to answer. It’s important to talk to one of our employment lawyers in Dallas to make sure you know your rights when it comes to pregnancy discrimination at work. The ‘intent to become pregnant’ is a bit of a grey area when it comes to pregnancy discrimination and the PDA. In the Northern District of Indiana, plaintiff Rochelle D. Batchelor brought a claim on the grounds that she was discriminated against, and fired, because of her intent to ‘start a family.’ While the Court recognized that she would be part of a protected class based on that statement, it also found that her actions directly relating to the course of her employment, notably her personal use of corporate funds, was why the Court ruled in favor of the defendants. Batchelor v. Merck & Co., Inc., 651 F.Supp.2d 818, 829-35 (N.D. Ind. 2008). 

The Supreme Court has also commented on the matter; in International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), the Court noted that the defendant’s policy of discriminating against or singling out people who are capable of bearing children was sex discrimination. Essentially, this Court held that a company policy against the creation of children (both men and women are capable) is different than a policy against bearing a child (only a woman is capable), the latter of which can only relate to pregnancy discrimination at work.  Id. at 187-88. The Court’s final ruling on the matter was that it would do no more than what the PDA has laid out, notably that the PDA prohibits discrimination based on a woman’s ability to be pregnant. Id. at 211. So, in some ways, the Supreme Court left open whether intent to be pregnant was different than ability to be pregnant because the Court there read that the discrimination occurred because the company policy did not also apply to male ability to produce children. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 332 (1993) (Scalia, J., dissenting) (further explaining how the Court in Johnson Controls came down with its decision and explaining the reasoning behind that Court’s use of the PDA).

Texas State Courts are in support of protecting intending mothers employed by qualifying employers. A case decided in February 2021 addressed the exact issue of ‘whether women who intend to be pregnant are protected from discrimination,’ and that Court answered in the affirmative. South Texas College v. Arriola, 13-19-00222-CV, 2021 WL 497237 at *4, Tex. Court of Appeals (Feb. 11, 2021). Because Texas had no law directly on the question, the Court noted “we find persuasive the rationale of those [federal] courts that have interpreted the PDA as prohibiting discrimination against women who have expressed an intent to become pregnant.”  Id. (citing Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004)).  What this ruling did, in effect, was add this interpretation of pregnancy discrimination at work onto the pre-existing Texas Commission on Human Rights Act (“TCHRA”) which mirrors the federal Title VII law and its interpretations.  Since the PDA was an amendment to Title VII it also influences the TCHRA, and, thus, was applicable in this ruling.

During Pregnancy and Pregnancy-Related Conditions

The federal law that prohibits pregnancy discrimination or the PDA, which relies on Title VII’s anti sex discrimination language, affords protection against a number of pregnancy-workplace related issues like harassment, discrimination, and temporary disability. Women are protected from pregnancy harassment based on pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The standard for the harassment mimics that of workplace sexual harassment employers cannot allow severe or pervasive harassment based on pregnancy.  As such, similar rules about speaking out against and formally complaining about the harassment are useful to win a claim of pregnancy discrimination. Women, and sometimes men, can also be afforded medical leave on disability grounds. If a woman experiences any of the impairments from pregnancy as recognized under the Americans with Disabilities Act (ADA), the PDA then applies ADA standards to that woman’s condition.  The standard is that an employer must make reasonable accommodations, absent undue hardship, for that pregnancy impairment and cannot discriminate based on the disability stemming from the pregnancy.  The PDA and the ADA, like Title VII, are federal laws that apply to only those employers with 15 or more employees.

Pregnancy discrimination is in a bit of a unique category of discrimination in that the perpetrator may be genuinely benevolent, but unaware that the benevolence does not justify discrimination.  Take, for example, a woman with a high-risk pregnancy who works in a somewhat physically demanding workplace that is an assisted living home that supports people with mental disabilities who, at times, will become aggressive towards caregivers. The managers at this workplace decide that the woman with the high-risk pregnancy should not work during the last month or two of her pregnancy and puts her on unpaid, job secured leave in a similar fashion to what the Family Medical Leave Act (“FMLA”) would require. One last fact: consider that the managers have a genuine concern that if the woman continues to work at this home during the final months of her high-risk pregnancy, there is a very real chance that she could lose her baby, but that there is no concern that she can do her job well. Corrine Carter claimed pregnancy discrimination on this fact pattern and won the case in 2017.  In Carter v. A&E Supported Living, Inc., the Court held that the manager’s actions were prima facie evidence of pregnancy discrimination.  That Court also explicitly noted that “benevolent concern for the health and safety of Carter and her unborn child does not excuse the discriminatory nature of [A&E’s] actions.” Carter v. A&E Supported Living, Inc., 16-00574-N, 2017 WL 5894540 (Nov. 9, 2017).

If a pregnant employee wants to seek reasonable accommodations, they and the employer must then engage in what is known as the interactive process. The interactive process relies on the requirements laid out in the ADA to prevent pregnancy discrimination.  Pregnancy is not, however, a disability in and of itself because it alone is not an impairment; however, complications and impediments that arise from pregnancy are able to be classified as a temporary disability for purposes of the ADA. If there are complications or other issues that lead to a pregnant woman needing reasonable disability accommodations then that woman should make a request for those accommodations. Employers are then obligated to oblige those accommodations so long as they are reasonable and do not create undue hardship and the employer offers accommodations to other employees with temporary disabilities. 

Employment lawyers understand how these laws have changed over time. One of the best examples on how this issue has changed over time is Young v. United Parcel Service.  575 U.S. 206 (2015). Young was a UPS worker who could no longer lift over 20 pounds due to her pregnancy and even though UPS would not accommodate this lower lifting capability; the Court remanded on the basis that the law has evolved to the point where yes, a plaintiff can bring a disparate treatment claim under the PDA.

Today there are a number of avenues for women to gain reasonable accommodations relating to disabilities and other issues that may impede their working life, which is why it is important to contact employment lawyers about your rights. The most prominent law is the ADA, but there are other methods as well. Take lactation as an example; it is not covered as a disability under the ADA but the Affordable Care Act amended section 7 of the Fair Labor Standards Act to ensure that employers offer a break and a private place (not a bathroom) for working mothers that need to express milk during the workday. There are also a number of other state laws recognizing that pregnant women and recent mothers still have needs not covered by the ADA. The FMLA, however, does consider pregnancy to be a Serious Medical Condition and, thus, makes 12 weeks unpaid leave available to eligible pregnant women.

Employment lawyers understand how the PDA and the ADA can work together on issues, but they can also be used separately for the same cause of action. Take two examples; in the first a boss fires an employee who has recently revealed she is pregnant and in the second a boss fires an employee already known to be pregnant because she cannot do something without a reasonable accommodation by the employer.  The first scenario relies on the PDA but cannot use the ADA and the second relies on the ADA but does not implicate the PDA.  In many ways, the two work to close any discrimination loopholes left open by the timing of the pregnancy discrimination.

The ADA does not recognize pregnancy as a disability but does recognize things like anemia, sciatica, gestational diabetes, preeclampsia, morning sickness, swelling in the legs, and depression, amongst other impairments, as temporary disabilities. As such, pregnant employees will be entitled to all the protections and rights as other employees would under the ADA. Its important to consult employment lawyers about these rights. Women are entitled to reasonable accommodation, absent undue hardship on the employer, for any impairments related to their pregnancy. So, for a woman with morning sickness an employer may be able to reasonably accommodate that disability by changing their working hours. An employer may also modify workplace policies such as allowing a pregnant woman to sit frequently or carry a water bottle even though non-disabled employees are not allowed to do or have those things.  Even redistributing various work-related responsibilities, such as heavy lifting or being exposed to possibly toxic materials, can be covered as a reasonable accommodation without actually modifying someone’s employment terms. 

Miscarriages can also be covered under the ADA so long as it substantially limits a major life activity. Many miscarriages, however, do not meet this definition unless they are particularly severe or have long-lasting effects. They are, however, a pregnancy-related condition and, therefore, can qualify under the PDA if an employer were to discriminate against a woman who had a miscarriage. Depression and other medical conditions stemming from a miscarriage may bring in the ADA or the FMLA and may grant any number of remedies such as reasonable accommodations or unpaid, job-protected leave under the FMLA. So, while the text of the PDA is largely wrapped up in the actual pregnancy, the end of pregnancy is also protected. To properly understand these protections, it can help to consult employment lawyers. Miscarriages have already been addressed, but there are a number of cases, including in the 5th Circuit, which argued that abortions are a medical ‘condition’ relating to pregnancy and, thus, covered by the PDA.  Even in instances of successful pregnancy and childbirth some women suffer from postpartum depression. Postpartum depression is a protected category under both the ADA and the PDA, employers cannot discriminate against women suffering from it and must reasonably accommodate them. In some cases, women may even qualify under the FMLA if the depression is serious enough and if their FMLA time has not already expired due to other leaves during the course of pregnancy and childbirth.

Men are, unsurprisingly, ineligible for protection under the PDA. However, if a man were to have a very sick or otherwise incapacitated pregnant partner/wife, they may be eligible for 12 weeks unpaid leave because of the FMLA. Men (and, assumingly, other spouses) may take leave to care for a pregnant woman before and immediately after she gives birth. While some state laws may offer greater opportunities for those partners to take leave, the FMLA permits leave only when the pregnant woman has Serious Health Concerns. These serious concerns, as relating to pregnancy, mostly focus on ‘severe’ pregnancy symptoms that cause overnight hospitalization or continuing treatment. So, extreme morning sickness, for example, could be a Serious Health Concern that may qualify a partner for FMLA unpaid leave. After pregnancy, fathers can more easily be granted FMLA leave.

Post Pregnancy and Adoption

Parental leave refers to both parents’ ability to take time off work to care for a new child, paternity leave refers to the father’s ability to do so, and maternity leave refers to a mother’s ability to do so. It is important to note, however, from the outset that these laws, the FMLA, PDA, etc., were all designed for a cisgender, heterosexual couple – a man and a woman. The focus of this discussion will use the terms to identify each party in a heterosexual couple not to exclude LGBTQ+ but only for ease of discussion in the hopes that the terms father and mother could be just, eventually, read as parent 1 and parent 2. Regardless of gender status or sexuality, navigating the statutes around pregnancy law, even without the complexity of having different requirements at the state and federal level, is difficult, which is why it is so important to contact one of our Dallas employment attorneys.

The FMLA covers both mothers and fathers to be eligible for 12 weeks unpaid leave available at any point until 1 year after the birth or adoption of a child. Often, parents can run short-term disability, vacation, and sick time concurrently during FMLA leave to ensure that there is still some income during what could be a 12-week monetary drought. However, though the FMLA does not require it, some companies offer paid maternity and, sometimes, paternity leave. Studies show that less than half of all US businesses engage in that practice, limiting pregnancy rights in the workplace. A growing number of States, including Connecticut, Washington D.C., Massachusetts, New Jersey, New York, Oregon (coming soon), Rhode Island, and Washington, do require employers to offer some form of paid parental leave either for both parents or only mothers.

Women have different sets of pregnancy rights in the workplace during pregnancy and immediately after giving birth.  The former is protected as ‘pregnancy discrimination’ under the PDA which protects against discrimination based on pregnancy in any and every aspect of employment. Maternity rights are slightly than discrimination protections in that the applicable law comes from the FMLA, and that law provides that women are granted job protected leave for 12 months after giving birth or adopting. So, pregnancy laws are largely based on protecting against discrimination whereas maternity/paternity laws focus on granting additional rights rather than per se protections, which one of our Dallas employment attorneys can explain.   

The FMLA is the base line for all qualifying employees, and to be eligible employees must (1) work for a covered employer, (2) work 1,250 hours during the 12 months prior to the start of leave, (3) work at a location where 50 or more employees work at that location or within 75 miles of it, and (4) have worked for the employer for 12 months with no requirement they are consecutive. So, state laws would then stack on top of these requirements as additional protections and rights but are not necessarily reliant on them. Take New York, for example. In New York all employees are eligible for paid parental leave so long as they have worked for an employer for 26 consecutive weeks. That’s it; no hour requirements, no number of employees, just work 26 consecutive weeks. New York does have the right, however, to change the terms of payouts when certain officials declare that the economy is failing or otherwise performing in a negative fashion. Regardless, the New York Paid Family Leave Benefit Law was one of the first to take on paid parental leave and it shows how States may choose to offer greater protections and pregnancy rights in the workplace than the FMLA. 

Rights to Return to Work

There are three main return to work rights under the FMLA: a right to return the same or an equivalent job, a right to be free from discrimination from that pregnancy and from that associated leave, and the right to return to an altered schedule of intermittent or part-time work.  In all, people on paternal leave must be treated exactly the same as other people returning from a leave based on a temporary disability. Even seemingly well-intentioned practices to protect pregnancy rights in the workplace, like not sending a recent mother on a 15-hour bus ride for work where she has no access to privacy for lactation, are still discriminatory and, ultimately, have a negative impact on that mother’s ability to advance her career because of a stigma around the pregnancy. So, women who have recently given birth have the right to all the responsibilities of their job so long as they can still meet the requirements and capabilities of the position.

Three Laws Recap and their Timing

The PDA can be used before, during, and after pregnancy to prevent discrimination based on the pregnancy or any conditions associated with it. It’s important to understand these rights, which is why our Dallas employment attorneys have already posted three blogs describing your rights beforeduring, and after pregnancy. In all, there is a complex web of federal, state, and local law protecting pregnancy rights. The FMLA can be used during or after a pregnancy and grants a total of 12 weeks unpaid, job secured leave; both parents are eligible for both times but non-pregnant partners may only use FMLA leave during a pregnancy if the pregnant woman is severely injured or incapacitated by the pregnancy. The ADA can be used during and after pregnancy to help prevent discrimination based on the ailments associated with pregnancy and also to ensure that women are reasonably accommodated at their workplace for those ailments. If your family has recently welcomed a new addition and you feel you are being mistreated at work because of it, contact one of our Dallas employment attorneys today to understand your pregnancy rights in the workplace.

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