Pregnancy Discrimination: A Growing Cause of Concern for Employers

Jeff Weintraub
March 11, 2008 — 3,314 views  
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Pregnancy discrimination claims are among the fastest-growing types of discrimination charges being filed against employers. Between 1992 and 2003, complaints of pregnancy discrimination filed with the Equal Employment Opportunity Commission (EEOC) increased by over 39%.

Title VII prohibits an employer from discharging any individual, or otherwise discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual's sex. In 1978, Congress enacted the Pregnancy Discrimination Act (PDA), which amended Title VII to specify that sex discrimination under Title VII includes discrimination on the basis of pregnancy. Both Title VII and the PDA apply to any employer with 15 or more employees. By incorporating the PDA into Title VII, Congress stated that discrimination based upon pregnancy constitutes discrimination based upon sex. Therefore, it is now well settled that a claim of discrimination on the basis of pregnancy must be analyzed in the same manner as any other sex discrimination claim.

What does the Employee have to show to prove pregnancy discrimination?

An employee claiming disparate treatment under Title VII must first establish a prima facie case of unlawful discrimination. In order to make out a case of pregnancy discrimination, an employee must initially show that:

1. the employee or his spouse was pregnant;
2. the employee was qualified for her job;
3. the employee was subjected to an adverse employment decision; and
4. there is a relationship between the pregnancy and the adverse employment decision.

If the employee establishes all four factors set out above, the employer must articulate a legitimate, non-discriminatory reason for its actions in order to escape liability for damages. If the employer can show a sufficient non-discriminatory reason, there is no longer a presumption of intentional discrimination. Therefore, the employee must then prove that the defendant intentionally discriminated against her. In order to show intentional discrimination, the employee must show, at least, that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for intentional discrimination.

When attempting to defend a claim of discrimination based on pregnancy, the employer must keep in mind that the adverse impact of an employer’s actions on pregnant employees will be compared to the impact of that same action on all employees with similar abilities and limitations. The adverse impact of a policy or practice on pregnant employees will be compared to the corresponding impact of that policy or practice on other employee groups, regardless of gender or marital status, to determine if pregnant employees are affected more harshly than the other employee groups. For example, the affect of an employer’s disability leave policy on pregnant employees will be compared to the similar impact of that policy on non-pregnant female employees, married male and female employees, and unmarried male and female employees.

How can you avoid liability for claims of pregnancy discrimination?

The most important factor in dealing with pregnancy and your employees is to treat employees affected by pregnancy, childbirth, or related medical conditions exactly the same as any other employee with similar disabilities or limitations. The PDA requires equal treatment for pregnant employees, not preferential treatment.


The PDA prohibits employers from refusing to hire a woman because of a pregnancy-related condition as long as she is able to perform the major functions of her job. When interviewing a job applicant, the employer should not ask whether the applicant is pregnant or plans to become so in the future. In determining whether a pregnant applicant is capable of performing the major functions of her job, the employer should use the same judging criteria it would use for other non-pregnant employees with similar limitations.

Maternity Leave

To begin with, an employer should consider not having a “maternity leave policy” at all. A separate maternity leave policy implies that the employer believes there is something inherently different about maternity leave than other types of short-term disability leave. If an employer is subject to the Family and Medical Leave Act (FMLA), the employer should have a general leave policy that complies with both the FMLA and any other applicable state laws. With a proper leave policy in place, the employer should apply this policy to employees seeking maternity leave in the same manner it applies to other employees (males and non-pregnant females) seeking short-term disability leave.

Second, employers cannot require employees to take maternity leave. The employer must allow the pregnant employee to work as long as she is able to perform the duties of her job. In determining whether an employee is able to perform his/her duties, the employer cannot create special procedures or tests. Instead, the employer must use the same procedures used to screen other employees’ ability to work.

If a pregnant employee is unable to perform her job due to a pregnancy-related condition, the employer must provide her with a reasonable accommodation. These accommodations can include: modified job tasks, alternative assignments, disability leave, or leave without pay. However, the employer must keep in mind that the accommodations customarily available for other employees (males and non-pregnant females) with similar physical limitations should also be available for pregnant employees. For example, if an employer provides up to 8 weeks paid leave for short-term disability, the employer must also provide up to 8 weeks paid leave for pregnancy related conditions.

Further, if an employee affected by a pregnancy-related condition requests maternity leave, the employer cannot create special requirements for the employee to qualify for such leave. However, if an employer requires all employees to submit a return-to-work certification from a physician concerning their inability to work before granting paid disability leave, then that employer may also require employees affected by pregnancy-related conditions to present the same certification from their treating physicians in order to receive paid maternity leave under the employer’s short-term disability policy.

In addition, employers should be aware that employees affected by pregnancy related conditions can also qualify for medical leave under the Family and Medical Leave Act (FMLA). Under the FMLA, “eligible” employees (both fathers and mothers) are entitled to up to 12 weeks unpaid medical leave during any 12 month period for the birth or care of a newborn child. Employees are eligible for FMLA leave if they:

1. have been employed by the employer for at least 12 months;
2. had at least 1,250 hours of service during the 12 month period; and
3. are employed at a worksite where the employer employs 50 or more employees.

If eligible, the employee is entitled to medical leave even if s/he could continue to work with a reasonable accommodation. However, if the employee decides to take FMLA leave, the employer may count any maternity leave given under their short-term disability policy towards the 12 weeks of FMLA leave, as long as the employer provides notification of this to the employee. Therefore, in the example above, the employer could count the 8 weeks of paid disability/maternity leave as part of the 12 weeks of FMLA leave.

Finally, under the PDA, the employer must hold open the pregnant employee’s job while she is on a pregnancy-related leave for the same length of time that jobs are held open for other employees on disability leave. In additions, under the FMLA, an employee is entitled to return to their former position or its equivalent.

Promotions and Discipline

Employers should be especially careful when (1) promoting non-pregnant employees while a similarly qualified pregnant employee is out on leave or (2) taking disciplinary action against a pregnant employee.

When considering promoting non-pregnant employees while a pregnant employee is out on disability leave, the employer and its Human Resource managers should carefully analyze the qualification of each potential candidate. If a pregnant employee is passed over, the employer should be able to point out other candidates who were also passed over, such as similarly qualified males or non-pregnant females, in order to show the employee’s pregnancy played no role in the decision.

Employers should also be careful when considering disciplinary action against employees affected by pregnancy-related conditions. For example, if an employer experiences problems with a pregnant employee due to numerous absences from work, the employer should determine whether attendance problems with this employee existed before the pregnancy and if so, whether these were properly documented. In any case, the employer should consult legal counsel before taking any action.

Health Care Benefits

Employer-provided health-care insurance must cover expenses for pregnancy-related conditions in the same manner as covered expenses for other medical conditions. The treatment of expenses must be the same for pregnancy-related expenses and other medical expenses regardless of whether insurance coverage is on a fixed basis or a basis of percentage of reasonable and customary charge. Moreover, the employer cannot require any additional or increased deductible for payments to the insurance provider for pregnancy-related expenses. Finally, employers must provide the same pregnancy-related health benefits for spouses of male employees as they do for their pregnant female employees.

Basically, employers must understand that the PDA and Title VII require equal treatment for employees affected by pregnancy-related conditions and those who are not. When designing policies and practices that affect the employment status of employees, the employer must analyze any possible discriminatory impact the policy or practice could have on employees affected by pregnancy-related conditions. Further, when implementing or enforcing any such policy or procedure, the employer must strive to do so consistently for all affected employees. Employers should properly document each instance of when a policy or practice is applied in order to have that information available should a complaint arise. This documentation is especially important should a complaint of pregnancy discrimination arise, because this allows the employer to show equal treatment of all employees and can be evidence of a non-discriminatory reason for taking the action in question.

Pregnancy discrimination, as with other types of discrimination, is a complicated concern that every employer must face. Employers who fail to handle the situation properly can leave themselves vulnerable to significant monetary liability. Therefore, employers who are unsure of how to handle pregnancy-related problems should always consult legal counsel before taking any action.

Jeff Weintraub

Weintraub, Stock & Grisham, P.C.