Pregnancy Discrimination

Title VII

Who is protected?

Title VII protects only employees of covered employers (see below) who have suffered injuries allegedly caused by the challenged actions of the employer. 42 U.SC. § 2000e-5(b). Some categories of workers, including the following, have particular rules governing who is protected:

• Undocumented Immigrants
  

  The EEOC will not, on its own initiative, inquire into a worker’s immigration status, EEOC, “Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws (June 27, 2002). However, all administrative remedies may not be available to undocumented workers. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (holding that federal immigration policy prohibited the NLRB from awarding back pay to undocumented workers who had never been legally authorized to work in the U.S.).

• Independent Contractors

  Many courts have held that Title VII does not apply to discrimination involving an independent contractor relationship. Most courts use a common law agency test to determine whether a worker is an “employee” or an “independent contractor” for the purposes of Title VII, analyzing many factors.

• Partners and Other Owners

  Depending on the facts of a case, partners, shareholders, and directors of a business may be considered employees under Title VII. The court will consider the facts relating to the worker’s actual role within the company on a case-by-case basis. Clackamas Gastroenterology Associates v. Wells, 538 U.S. 440 (2003).

Which employers are covered?

Title VII applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, including private employers, state and local government employers. 42 U.S.C. § 2000e(b). It also applies to labor organizations and employment agencies, 42 U.S.C. § 200e-2(b)-(d), and to the federal government, 42 U.S.C. § 2000e-16, although there are different procedures for a federal employee to pursue a discrimination claim. Even if your employer employs fewer than 15 employees, it may be considered a covered employer under Title VII if it has acted jointly with a parent or subsidiary corporation, and together the employees number more than 15; to determine whether the companies have acted jointly, a court would focus on factors such as the degree of interrelationship, degree of common ownership, control, and management, and degree of centralization of personnel functions. See, e.g., Nesbit v. Gears United, Inc., 347 F.3d 72, 84 (3d Cir. 2003) (describing factors).

Which practices are prohibited?

An employer may not fire, or refuse to hire, a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers. 42 U.S.C. § 2000e-(k). An employer also may not maintain a policy that adversely affects pregnant employees. While employers have the right to restructure jobs and responsibilities, they cannot use that right to target a pregnant employee for adverse action. An employee can show discrimination by showing the elimination of her position, or demotion, during pregnancy or maternity leave was made to displace her for impermissible reasons. See Quaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995).

If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as it treats other employees “similar in their ability or inability to do work.” See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353-54 (2015). For example, if a male or not-pregnant female employee with a back injury is not required to do heavy lifting while so disabled, or is granted leave for that time, the employer must provide the same accommodation to a pregnant employee for the time in which she is disabled due to pregnancy and childbirth. Without showing a bona fide occupational qualification (BFOQ), an employer also may not require that a pregnant worker take leave until her child is born, or for a predetermined time thereafter, provided she is able to perform her job. Cleveland Board of Educ. v. LaFleur, 414 U.S. 632 (1974) (public employer); Carney v. Martin Luther Home, Inc., 824 F.2d 643 (8th Cir. 1987).

With regard to benefits, seniority and other benefits and privileges for pregnant workers must accrue according to the same terms and conditions according to which they accrue for other people with temporary disabilities. 29 C.F.R. § 1604. Any health insurance provided by an employer must cover pregnancy-related expenses on the same basis as costs for other medical conditions. Pregnancy-related medical benefits cannot be limited to married employees. See EEOC Questions and Answers on the Pregnancy Discrimination Act, No. 13, 29 C.F.R. § 1604 app. The PDA provides protection not only to female employees on a company’s payroll, but also for the spouses of male employees: if it includes employees’ spouses, an employer’s health benefit plan must provide equal pregnancy coverage to female employees and to the spouses of male employees. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983).

Can a covered employer legally discriminate based on pregnancy?

An employer may base employment decisions on pregnancy only if it can show that the status of not being pregnant is a bona fide occupational qualification that is reasonably necessary to the normal operation of the particular business. 42 U.S.C. § 2000e-2(e). For example, in some cases involving airline flight attendants, courts have held that the BFOQ of not being pregnant was reasonably necessary to the normal operation of airline flights. See, e.g., Lanvin v. Delta Air Lines, Inc., 730 F.2d 994 (5th Cir. 1984) (upholding mandatory maternity leave policy, finding that many pregnant flight attendants will suffer severe or disabling unpredictable pregnancy-related problems that would prevent their assisting passengers to safety in an emergency). However, courts interpret the BFOQ defense narrowly. In cases involving work in hazardous conditions, even work involving substances that could harm a fetus, courts have held that so long as the employee is capable of doing the work, there is no BFOQ that would justify basing employment decisions, such as whether to allow the employee to work with hazardous chemicals, on the pregnancy. Internat’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 204 (1991).

What remedies are available?

If a court finds you have been discriminated or retaliated against in violation of Title VII, you may be entitled to remedies, including:

• Reinstatement, compelled hiring, or compelled promotion
• Back pay
• Front pay
• Retroactive seniority and benefits
• Compensatory and punitive damages (punitive damages not available against government employers)
• Attorneys’ fees

How do I vindicate my rights?

• Non-Federal Employees

You must file a charge with the EEOC in order to seek a legal remedy for pregnancy discrimination or retaliation that violated Title VII. You must file your charge within 180 days from the date of the alleged violation in order to protect your ability to vindicate your rights under Title VII. 42 U.S.C. § 2000e-5©(1). If you live in a state that has a state law prohibiting sex discrimination, however, this 180-day filing deadline is extended to 300 days or 30 days after you have received notice of termination of state proceedings if that date is earlier, because you are required to file a charge with the appropriate agency in your state. Id.

The EEOC or your state agency will investigate your charge of discrimination, and if it determines your charge has merit, it will attempt to foster conciliation between you and the employer. However, most EEOC field offices do not have the capacity to act on most complaints in a timely manner. Regardless of the EEOC’s determination, you may bring a civil action in court after 90 days have passed since you filed your charge. 29 C.F.R. § 1601.28©.

• Federal Employees

If you are a federal employee, you must first initiate a complaint by contacting your employing agency’s EEO counselor within 45 days of the alleged violation. If the complaint cannot be resolved informally, you must file a formal written complaint with the agency that discriminated against you within 15 days of the notice of the EEO counselor’s failure to resolve the matter. 29 C.F.R. §§ 1614.105(a)(1), .106(b). The agency investigation must be completed within 180 days of the date the complaint or its last amendment was filed, or within 360 days of the date the original complaint was filed, whichever is earlier. 29 C.F.R. §1614.108. A court action must be filed within 90 days of receipt of notice of final action on the formal written complaint. 42 U.S.C. §2000e-16(c).

Pregnant Workers Fairness Act (PWFA)

Who is protected?

The PWFA protects employees and applicants of covered employers who have known limitations related to pregnancy, childbirth, or related medical conditions.  

Which employers are covered?

The PWFA applies to private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations.

What does the PWFA require?

The PWFA requires that covered employers grant temporary, reasonable accommodations to workers with known limitations related to pregnancy, childbirth, or related medical conditions, including both current employees and job applicants, so long as the accommodation does not present an “undue hardship” for the employer. Employers must engage in an interactive process with the employee or applicant to determine a reasonable accommodation. An employer may not require an employee to take paid or unpaid leave if another reasonable accommodation is available. Examples of possible reasonable accommodations include a closer parking space; sitting or drinking water during a shift; additional or longer breaktimes to use the bathroom, eat, or rest; and exemption from strenuous activities. Further, employers must provide reasonable accommodations even if an employee cannot perform all essential functions of the job, so long as the employee’s inability to perform these functions is temporary.

The PWFA also prohibits employers from denying employment opportunities to qualified employers because of their need for reasonable accommodations. It further protects employees from retaliation, coercion, interference, intimidation, or threats in response to requests for or receipt of reasonable accommodation.

What remedies are available?

If a court finds that your employer has denied you a reasonable accommodation or retaliated against you in violation of the PWFA, you may be entitled to remedies, including:

• Reinstatement, compelled hiring, or compelled promotion
• Back pay
• Front pay
• Retroactive seniority and benefits
• Compensatory and punitive damages (punitive damages not available against government employers)
• Attorneys’ fees and reasonable costs

How do I vindicate my rights?

The process for vindicating your rights under the PWFA is the same as under Title VII, including the different paths for non-federal and federal employees outlined above. Employees can bring civil actions in court after exhausting all available administrative remedies, and the EEOC and Attorney General have the same investigatory powers that they do under Title VII.

Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act

Who is protected?

Nearly all Fair Labor Standards Act (“FLSA”)-covered employees have the right to take a needed break to pump and to access an appropriate space to express breast milk.

Certain employees of airlines, railroads, and motorcoach carriers are exempt from nursing employee protections under the PUMP Act. These employees may be entitled to break and/or pumping space protections under state or local laws.

Which employers are covered?

The PUMP Act applies to all employers that are covered by the FLSA, unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship. The FLSA applies to businesses with two or more employees that have an annual dollar volume of sales or business done of at least $500,000 or are hospitals, businesses providing medical or nursing care for residents, schools or preschools, or government agencies. Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer as compared to the size, financial resources, nature, or structure of the employer’s business. All employees, regardless of worksite, are counted in determining whether an employer meets the requirements for an undue hardship exemption.

What does the PUMP Act require?

The PUMP Act requires covered employers to provide nursing mothers with break times and private spaces, other than bathrooms, in which to express milk for up to one year following their child’s birth.

The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued guidance for employers on compliance with the PUMP Act, establishing the following:

• The frequency and duration of reasonable breaks, which may be taken each time an employee has need to express milk, will depend on various factors, including the age of the child; how long the mother needs to pump and how often the mother needs to pump; how far the private space for pumping is from the employee’s work station; and whether the private space is set up such that the pump and equipment are ready for use.
• Remote employees are entitled to take pump breaks of the same frequency and duration as those taken by in-person employees. Both remote and in-person employees must be completely relieved from duty in order to be considered on break while pumping.
• Covered employees must have a space “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.” A bathroom, even if private, is not a permissible location for an employer to provide to an employee needing to pump.
• An employer violates the PUMP Act’s anti-retaliation provision when it interferes with an employee’s rights under the Act or retaliates against an employee for exercising her rights, such as by switching the employee to a lower paying role.

What remedies are available?

If a court finds that your employer has denied you a reasonable accommodation or retaliated against you in violation of the PUMP Act, you may be entitled to remedies, including:

• Reinstatement, compelled hiring, or compelled promotion
• Back pay
• Liquidated damages, in an amount equal to back pay
• Punitive damages, where appropriate

How do I vindicate my rights?

Before bringing a civil action under the PUMP Act, you must notify your employer that they are not in compliance with the Act and provide them with 10 calendar days to come into compliance. This 10-day requirement does not apply, however, if you were discharged in retaliation for exercising your rights under the Act, either by requesting break time or opposing employer conduct related to the Act, or if the employer has no intention of coming into compliance with the Act.

Related Links

Read the EEOC’s notice (2007) on Family Responsibilities Discrimination here.