Suing for Pregnancy Discrimination

Federal and state laws prohibit employers from discriminating against workers based on the fact that they are pregnant or have pregnancy-related medical conditions.

“Even before the #MeToo movement, we were hearing from a lot more people with pregnancy discrimination cases,” says Atlanta attorney Marcus Keegan. “For years, I don’t think I had anybody call me about pregnancy discrimination, and then in the last few years, I got a ton of calls about pregnancy leave, sex discrimination, and any pregnancy-related medical condition.”

To find out about your legal rights as a pregnant worker or to sue for pregnancy discrimination, contact a discrimination lawyer.

Prohibited Pregnancy Discrimination Under Federal and State Laws

Anti-discrimination laws prohibit discriminating against workers based on protected characteristics or classes. Examples of protected classes are race, sex, age, disability, religion, and national origin. Sex discrimination laws prohibit discrimination based on a person’s gender, sexual orientation, gender identity, and pregnancy status.

Several federal laws prohibit adverse employment actions — things like firing, demoting, or refusing to hire — against pregnant employees and those who have had a baby, including:

• Title VII of the Civil Rights Act of 1964
• Pregnancy Discrimination Act of 1978 (PDA)
• Americans with Disabilities Act (ADA)
• Family and Medical Leave Act (FMLA)
• Fair Labor Standards Act (FLSA)
• Pregnant Workers Fairness Act (PWRA) of 2022
• Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) of 2022

The PDA amended Title VII to explicitly include pregnancy within the protected class of discrimination based on sex. The PWRA built on the PDA’s anti-discrimination protections by explicitly requiring employers to give reasonable accommodations for known limitations arising from pregnancy, childbirth, or related medical conditions. Likewise, the PUMP Act extended existing FLSA lactation accommodations to all workers (exempt and non-exempt).

Some state laws provide more robust legal protections for pregnant workers than federal law.

What Employment Actions Are Prohibited?

Pregnancy discrimination can include overt punishments such as firing an employee when they say they are pregnant. But discrimination is not always obvious. Employers may claim they are firing a pregnant employee for neutral reasons, which serves as a pretext. Types of prohibited employment actions include:

• Refusing to hire a pregnant worker because they are pregnant
• Giving pregnant employees worse pay, working conditions, or benefits
• Not giving an employee time or a place to breastfeed following childbirth
• Limiting advancement opportunities for workers of child-bearing age
• Retaliating against employees for reporting pregnancy discrimination

Discrimination and FMLA Leave

There is 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. FMLA protects a worker’s job when they take time off for the birth of a child, adoption, or other family medical care.

A pregnant woman should be able to combine necessary accommodations during pregnancy with unpaid FMLA time off. FMLA provides for up to 12 weeks of unpaid leave per year. During that time, their employer must maintain employer-provided health insurance benefits. Employers cannot ask workers to perform any portion of their job while on leave, including answering emails or taking phone calls.

Typical FMLA violations involve the employer:

• Not holding a worker’s job when they take FMLA-covered maternity leave
• Not providing reasonable accommodations for pregnant workers if they need less strenuous duties

“Pregnant workers may be terminated during pregnancy, or it could be that 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 asked to still do their job while on FMLA leave.”

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

Pregnancy is not itself a disability covered under the ADA. However, the ADA may cover pregnancy complications or related conditions — such as gestational diabetes or severe back pain.

These conditions must get the same disability accommodations as provided to an employee who is not pregnant. Treating pregnant workers differently than other workers is discrimination.

Violations Are More Common With Smaller Employers

Keegan notes that many of the witnessed infractions come from small- to medium-sized employers.

“It’s less often 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. It’s easier for them to just screw it up.”

Find an Attorney With Experience in Pregnancy Discrimination Claims

You may have a pregnancy discrimination claim if you get fired during your pregnancy. Pregnancy discrimination claims also involve negative employment consequences related to pregnancy, complications, or time taken off at the birth of your baby.

If you suspect discrimination but aren’t sure what to do, talk to a lawyer. An experienced pregnancy discrimination lawyer can assess your case and offer legal advice.