Despite the gains that women have achieved in the workplace, many new mothers still find the workplace to be a challenging and hostile place. Pregnancy discrimination remains prevalent: in Fiscal Year 2015, the EEOC received 3,543 charges of pregnancy-based discrimination. Employers often assume that pregnant workers, or those who have just given birth, are not dedicated to their jobs, or even that they will no longer be able to perform their jobs. Other employers may give a pregnant worker a less-demanding schedule or less-demanding duties – with fewer opportunities for advancement or less compensation – assuming the worker would prefer the change.
If you are a pregnant worker, federal, state, and local laws prohibit your employer from discriminating against you based on your pregnancy. The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, requires your employer to treat you the same as other employees – including women – who are not pregnant but otherwise similar to you in their ability or inability to work. The Family and Medical Leave Act also provides some protection for pregnant employees and parents of newborns.
A. 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 Aliens
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).
B. 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).
C. 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).
D. 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).
E. Pregnancy-Related Conditions
It may be that the Americans with Disabilities Act Amendments Act (“ADAAA”), will provide an alternate – and perhaps easier – road for pregnant employees to establish a claim of discrimination. As Justice Kennedy noted in his dissent in Young, the ADAAA “expand[ed] protections for employees with temporary disabilities,” which would include pregnancy- and childbirth-related medical conditions and restrictions.6 135 S. Ct. at 1367. The EEOC also recognized the significance of the ADAAA in its recent Enforcement Guidance on pregnancy discrimination. Equal Employment Opportunity Commission, Enforcement Guidance: Pregnancy Discrimination and Related Issues (2015), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#II (“Enforcement Guidance”). It may very well be that the ADA, rather than the PDA, becomes the most viable vehicle for pregnancy discrimination claims going forward.
The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities. 42 U.S.C. § 12101 et seq. The ADA defines a disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Individuals who can demonstrate the first prong are entitled to reasonable accommodations.
In 2008, Congress passed the ADA Amendments Act (“ADAAA”). The Act overturned the previously strict interpretations of what it means to be disabled under the law. The ADAAA left in place the ADA’s definition of disability but mandated that the definition of disability be broadly construed. See 42 U.S.C. § 12102(4) (“The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this act, to the maximum extent permitted under the terms of this Act.”).
In March 2011, the EEOC issued regulations implementing the ADAAA. See 29 C.F.R. § 1630. The regulations broadly construed what it means to have a “physical or mental impairment that substantially limits one or more major life activities,” and provide an expanded list of examples that constitute major life activities whose limitation could equate to a disability. For example, a major life activity may encompass “caring for oneself, performing manual tasks … standing … lifting … bending.” 29 U.S.C. § 1630.2(i). It might also mean an impact to the operation of a major bodily function, including “digestive … bladder … circulatory … and reproductive functions.” Id. The regulations also define the meaning of impairment broadly.
The EEOC built on these regulations in 2015 when it issued its Enforcement Guidance. The Enforcement Guidance explicitly addressed the application of the ADA as amended to pregnancy-related conditions, stating that, “[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA, as amended.” The Enforcement Guidance explains that an impairment’s cause and its temporary nature do not affect its status under the ADA as amended. The Enforcement Guidance then lists several examples of pregnancy-related impairments that could result in limitations that give rise to a right to reasonable accommodation under the ADA as amended, including: a diagnosis of cervical insufficiency requiring bed rest; pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); pregnancy-related carpal tunnel syndrome (affecting neurological function); gestational diabetes (affecting endocrine function); nausea that can cause severe dehydration (affecting digestive or genitourinary function); abnormal heart rhythms that may require treatment (affecting cardiovascular function); swelling, especially in the legs, due to limited circulation (affecting circulatory function); and depression (affecting brain function). This list illustrates the EEOC’s broad interpretation of “disability” under the ADA as amended, and should give rise to an increasing number of workers with pregnancy-related conditions asserting a right to reasonable accommodations. Under the EEOC’s interpretation, the ADA, as amended by the ADAAA, may now provide them with relief both under the ADA and potentially under the PDA.
F. What Remedies Are Available?
If a court finds you have been discriminated or retaliated against in violation of Title VII or the ADA, 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
G. How Do I Vindicate My Rights?
You must file a charge with the EEOC in order to seek a legal remedy for pregnancy discrimination or retaliation that violated Title VII or the ADA. 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(e)(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(e).
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 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).
If you believe that you have been subjected to pregnancy discrimination, contact the experienced lawyers at Katz, Marshall & Banks, LLP for an evaluation of your case with no further obligation.
Read the EEOC’s notice (2007) on Family Responsibilities Discrimination here.