Pregnancy Discrimination

Women should be welcomed back to work following childbirth and attendant leave, and should have the same opportunities that they had before motherhood, the same professional opportunities as working fathers and the same opportunities as people of all genders who do not have children. In the workplace, pregnancy discrimination involves treating a woman (whether a job applicant or an employee) unfavorably because she is pregnant or is perceived to be pregnant, because she has given birth, or because she has a medical condition related to pregnancy or childbirth. Pregnancy discrimination is unlawful but, unfortunately, some employers have not gotten the message. The laws against pregnancy discrimination also prohibit an employer from treating a female employee differently because of unwarranted stereotypes about working mothers. In such cases, discrimination can often be proven through a pattern of discriminatory reassignments or “steering” after a woman becomes pregnant or returns from maternity leave, as well as through evidence such as comments that reflect, for example, skepticism regarding commitment to the job.

Wigdor LLP is frequently called upon to represent women who have been treated differently after their employer learned of or they announced their pregnancies, once their pregnancies were noticeably visible, and/or after returning to work from maternity leave. While many pregnancy cases are resolved through informal negotiation, we also have litigated such cases extensively, and some of our cases have appeared on national television, including the Today Show, Nightline and CNN. (Please see Press & News Section)

Pregnancy discrimination is a form of gender discrimination. The federal Pregnancy Discrimination Act (PDA), as well as similar state and local laws, forbids discrimination based on pregnancy in any aspect of employment, including promotions, job assignments, pay, bonuses, hiring, layoff, termination, training, benefits (including leave and health insurance), and any other employment condition or term. In other words, it is against federal law to treat an employee differently because she is pregnant, has recently given birth, or is suffering from a medical condition as a result of being pregnant or having given birth. Similarly, the New York State Human Rights Law prohibits an employer from compelling an employee to take a leave of absence while pregnant, unless the employee is unable to perform her normal occupational duties in a reasonable manner. Complications from a pregnancy can also allow a woman to collect additional disability benefits under the New York Workers Compensation Law.

Discrimination laws protecting women who are lactating and/or breast-pumping in the workplace address a specific area of concern affecting women who return to their workplaces after childbirth. New mothers should not be subject to adverse employment actions such as a demotion or being fired because they must express breast milk for a newborn child while at work. Although Title VII does not explicitly prohibit discrimination based on lactation or breast-pumping, the Equal Employment Opportunity Commission (EEOC) has asserted its opinion that discrimination based on lactation is sex discrimination because only women can lactate. At least one circuit for the United States Court of Appeals has affirmed this view. Furthermore, New York State Law requires employers to provide certain accommodations to lactating mothers.

In addition, the Patient Protection and Affordable Care Act (PPACA), as an amendment to the Fair Labor Standards Act (FLSA), requires employers to provide nonexempt employees with “a reasonable amount of break time to express milk as frequently as needed,” in addition to requiring that the employer provide a room to express milk other than a bathroom. However, there is an exception for employers with fewer than 50 total employees who also can show that providing these breaks would be an undue hardship in light of the cost of compliance with the law with respect to the business’s size, financial resources, nature, and structure. Under the New York Labor Law, employers must provide post-pregnancy employees with reasonable unpaid break time or permit an employee to use paid break time or meal time each day so that the employee can express breast milk for her nursing child for up to three years after the employee gives birth. The employer also must make reasonable efforts to provide a room or other location (again, other than a bathroom) that is in close proximity to the work area where an employee can express milk in privacy. The same section of the New York Labor Law prohibits employers from discriminating against an employee who chooses to express breast milk in the workplace.

Employers should treat women who are temporarily unable to perform job duties due to a pregnancy-related medical condition the same way they treat employees with any temporary disability. Some pregnancy-related conditions may be classified as a disability under the Americans with Disabilities Act (ADA) and may require an employer to provide reasonable accommodations. For example, where a pregnancy-related condition substantially interferes with major life activities to an extent that is not characteristic of a normal pregnancy, a woman’s employer may be required to make certain accommodations in order to comply with the ADA.