Suing for Pregnancy Discrimination

Use these links to jump to different sections:

• What Employment Actions Are Prohibited?
• Violations Are More Often By Smaller Employers
• Find an Attorney With Experience in Pregnancy Discrimination Claims

Sexual harassment and employment discrimination have become far more scrutinized following the #MeToo movement, with both awareness and legal claims on the rise. One lesser-known corner of gender-based discrimination is against pregnant women.

Adverse employment actions taken against pregnant employees (or those who have just had a baby) are prohibited by several federal anti-discrimination laws, including:

• Title VII of the Civil Rights Act of 1964;
• Pregnancy Discrimination Act of 1978 (PDA);
• Americans with Disabilities Act (ADA); and
• The Family and Medical Leave Act (FMLA).

Above the baseline created by federal law, state laws sometimes provide more robust legal protections as well.

“Even before MeToo, we were already hearing from a lot more people with pregnancy discrimination cases,” says Atlanta employment attorney Marcus Keegan. “For years, I don’t think I had anybody call me about pregnancy discrimination, and in the last three years or so, I’ve just gotten a ton of calls about pregnancy leave, sex discrimination, and any pregnancy-related medical condition.”

What Employment Actions Are Prohibited?

An employer is not allowed to discriminate against pregnant workers, whether the punishment is overt or based on another reason that serves merely as a pretext.

Discrimination and FMLA Leave

Keegan says there’s frequently an overlap between a discrimination claim and mishandling of FMLA leave.

FMLA applies to all employers with at least 50 employees and to employees who’ve worked for their employer for at least a year. When handled correctly, a pregnant woman should be able to combine necessary accommodations during pregnancy with unpaid FMLA time off—as well as any additional private disability and/or sick leave benefits—for at least 12 weeks of unpaid leave per year.

During that time, her employer-provided health insurance benefits must be maintained, and she may not be asked to perform any portion of her job while on leave, including answering emails or taking phone calls.

Typical FMLA violations involve:

• Employees whose jobs aren’t held for them when they take maternity leave
• Employees who aren’t accommodated when they need a less strenuous position while pregnant.

“They may be terminated during pregnancy, or it could be they need a restricted work schedule because of a high-risk pregnancy, and they’re told, ‘We don’t have enough work for you,’” Keegan says. “I’ve had people taking their FMLA leave and getting fired while they’re on leave, or being asked to still do their job while on FMLA leave.”

Some Pregnancy-Related Medical Conditions May Be Covered Under the ADA

It’s worth noting that pregnancy is not itself a disability covered under the ADA, but complications or related conditions—such as gestational diabetes or severe back pain—may be.

As such, these conditions must be met with the same disability accommodations as would be provided to an employee who is not pregnant.

Violations Are More Often By Smaller Employers

Keegan notes that many of the infractions he’s seen have come from small- to medium-sized employers.

“It’s less large companies doing these things since they have a system in place. When someone goes out on FMLA leave, they shut off the email and instruct people not to contact them. But small- to medium-size employers typically do not have that kind of a system, and it’s easier for them to just screw it up.”

Find an Attorney With Experience in Pregnancy Discrimination Claims

If you were terminated during pregnancy or were subject to negative consequences in your work because of pregnancy, complications, or time taken off at the birth of your baby, you may have a pregnancy discrimination claim.

If you suspect discrimination but aren’t sure what to do, don’t hesitate to consult with an experienced pregnancy discrimination lawyer who can assess your case and offer legal advice.

To learn more about discrimination lawsuits, including hostile work environments and compensatory damages, see our overviews of employment law and discrimination.