THIS ARTICLE FIRST APPEARED IN HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S David L. Johnson.
Pregnancy discrimination has been in the news quite a bit lately. Recently, Walmart agreed to pay $14 million as part of a settlement in response to accusations that it systematically discriminated against pregnant employees by neglecting to offer light-duty assignments to pregnant women with medical conditions. Further, presidential candidate Elizabeth Warren made headlines after claiming she was fired from her teaching job in the early 1970s because she was pregnant. The developments serve as a reminder of the importance of ensuring your workplace policies comply with federal and state laws prohibiting discrimination against pregnant workers and job applicants.
Legal protections for pregnant women
Several laws come into play for pregnant workers and job applicants. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA), prevents employers from discriminating against women on the basis of pregnancy, childbirth, or a related medical condition. Let’s consider an example: Suppose a pregnant worker is temporarily unable to perform her job because of a pregnancy-related medical condition, such as severe morning sickness or doctor-ordered bed rest. In that case, her employer must treat her the same way it treats any other employee who is temporarily disabled—i.e., by providing light duty or leave. If the employer allows temporarily disabled employees to take leave with or without pay, it must provide the same accommodation to temporarily disabled pregnant workers.
By the same token, pregnant employees aren’t entitled to special treatment unless they are protected by another law. For instance, if an employee is eligible for leave under the Family and Medical Leave Act (FMLA), the law kicks in to allow her 12 weeks of leave to be used for (1) a pregnancy or childbirth-related medical condition that rises to the level of a serious health condition or (2) maternity (or paternity) leave to care for the new child (which is also available for fathers and foster or adoptive parents). Bear in mind that Tennessee has a unique maternity/pregnancy leave law that entitles eligible employees who work for companies with 100 or more employees 16 weeks of leave, which may be used for pregnancy, childbirth, adoption, and breastfeeding.
Pregnancy, in and of itself, isn’t considered a disability under the Americans with Disabilities Act (ADA). Frequently, however, a pregnancy or childbirth-related medical condition will rise to the level of a disability covered by the ADA. In that case, the employee is entitled to a reasonable accommodation for her disability if she can perform the essential functions of her job. That may include providing additional temporary leave after she has exhausted her FMLA leave or state-protected leave. And if the employee is able to perform the essential functions of her job, her employer cannot force her to take pregnancy leave. Nor can the employer impose a rule preventing employees from returning to work for a predetermined length of time after childbirth.
In addition to ensuring compliance with the laws summarized above, you should be vigilant in rooting out any workplace comments that could be perceived as suggesting bias against women based on pregnancy or childbirth. For instance, you should never ask job applicants if they intend to get pregnant. Nor should managers suggest that they will promote or assign a favorable job to one worker over another because they fear that one of the workers plans to become pregnant.
More protections on the horizon?
A bill titled the Pregnant Workers Fairness Act is currently pending in Congress. If enacted, the law would prevent employers from forcing pregnant workers to take leave if another reasonable accommodation is suitable. It would also reiterate that companies may not discriminate against pregnant workers who ask for accommodations. Regardless of whether the Pregnant Workers Fairness Act becomes law, you should ensure that your policies comply with all applicable laws and that you avoid taking any actions that have the effect of discriminating against employees on the basis of pregnancy or childbirth.