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Marion County Discrimination Lawyers
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Pregnancy Discrimination Q & A

Q: Does federal law protect employees from pregnancy discrimination?

A: Yes. The Pregnancy Discrimination Act (PDA) of 1978, which is federal law, prohibits employers from discriminating against women because of pregnancy, childbirth, or related medical conditions. The PDA was passed by Congress in reaction to the U.S. Supreme Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), in which the Court infamously ruled that discrimination because of pregnancy was not prohibited discrimination “because of sex” under Title VII of the Civil Rights Act of 1964. The PDA specifies that sex discrimination includes discrimination because of pregnancy. Thus, the PDA makes clear that discrimination based on a woman’s pregnancy is discrimination because of her sex.

Q: Why did Congress pass the Pregnancy Discrimination Act?

A: In discussing the legislative history of the Pregnancy Discrimination Act (PDA) in California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272 (1987), the U.S. Supreme Court stated that the “reports, debates, and hearings make abundantly clear that Congress intended the PDA to provide relief for working women and to end discrimination against pregnant workers.” “By enacting the PDA,” as the court in E.E.O.C. v. Bob Evans Farms, LLC, 275 F.Supp.3d 635 (W.D. Pa. 2017) explained, “Congress rejected the outdated notions upon which many ‘protective’ laws and policies were based, policies which often resulted from attitudes about pregnancy and the role of women who become pregnant which are inconsistent with the full participation of women in our economic system, and which perpetuated women’s second class status.” Thus, as observed by the Guerra Court, the “entire thrust” behind the PDA was “to guarantee women the basic right to participate fully and equally in the workplace, without denying them the fundamental right to full participation in family life.”

Q: Does Florida law protect employees against pregnancy discrimination?

A: Yes. In Delva v. Continental Group, 137 So.3d 371 (Fla. 2014), the Florida Supreme Court held that the prohibition against discrimination because of sex in the Florida Civil Rights Act (FCRA) includes discrimination because of pregnancy. Thus, the Florida Supreme Court expressly made pregnancy discrimination an unlawful discriminatory employment practice under Florida law. Prior to the Florida Supreme Court’s decision in Delva, numerous Florida state and federal courts held that the FCRA does not protect employees from pregnancy discrimination. In doing so, these courts incredulously ruled that Florida law authorized employers to discriminate against employees because of pregnancy. Delva repudiated this long line of decisions. As a result of the Florida Supreme Court’s decision Delva, the Florida Legislature was forced to amend the FCRA in 2015 and expressly make pregnancy discrimination an unlawful employment practice under Florida law.

Q: Can employers discriminate against women because of pregnancy-related medical conditions?

A: No. Under the Pregnancy Discrimination Act (PDA), employers are prohibited from discriminating against employees because of pregnancy, childbirth, or pregnancy-related medical conditions. The PDA further mandates that employers must treat “women affected by pregnancy, childbirth, or pregnancy-related medical conditions” the same as non-pregnant employees who are “similar in their ability or inability to work.” In using the broad phrase “women affected by pregnancy, childbirth, or related medical conditions,” as the U.S. Eighth Circuit Court of Appeals in Carney v. Martin Luther Home, Inc., 824 F.3d 643 (8th Cir. 1987) observed, the PDA “makes clear that its protection extends to the whole range of matters concerning the child-bearing process.” In other words, the PDA not only forbids employers from discriminating against women because of pregnancy, the PDA also forbids employers from discriminating against women because of childbirth or pregnancy-related medical conditions.

Under the PDA’s equal treatment mandate, employers are forbidden from treating pregnancy-related medical conditions differently or less favorably than other medical conditions. This means that women who are unable to work due to a pregnancy related medical condition must be treated the same as nonpregnant employees who are unable to work due to a medical condition. For example, if an employer ignores the absences of nonpregnant employees who miss work, then employer must overlook the comparable absences of pregnant employees who miss work because of pregnancy-related medical conditions. Likewise, if an employer accommodates nonpregnant employees who are temporarily unable to perform the functions of their job because of a medical condition, then the employer must accommodate pregnant employees who are temporarily unable to perform the functions of their job because of pregnancy-related medical conditions.

Q: What is the definition of unlawful pregnancy discrimination?

A: Under the Pregnancy Discrimination Act (PDA), unlawful discrimination occurs when an employer subjects an employee to an adverse employment action because of that employee’s pregnancy, childbirth, or related medical conditions. In Hazen Paper Co. v. Biggins, 507 U.S. 613 (1993), the U.S. Supreme Court determined that an employer discriminates against an employee because of that employee’s protected characteristic (i.e., an employee’s pregnancy, childbirth, or related medical conditions) when the employee’s pregnancy, childbirth, or related medical conditions “actually played a role” in the “employer’s decision-making process” and “had a determinative influence” on the employment decision. Distilled to its essence, the Supreme Court’s definition of employment discrimination in the PDA context means that employers are forbidden from considering an employee’s pregnancy, childbirth, or related medical conditions when taking adverse employment action against the employee. Rather, in the words of the Biggins Court, “the law requires the employer to ignore” an employee’s pregnancy, childbirth, or related medical conditions when taking adverse employment action against the employee. When an employer does not “ignore” an employee’s pregnancy, childbirth, or related medical conditions, and an employee’s pregnancy, childbirth, or related medical conditions is a “motivating factor” for an adverse employment action against that employee, the PDA has been violated.

Q: Can employers discriminate against women who intend to become pregnant?

A: No. The Pregnancy Discrimination Act (PDA) makes it unlawful for employers to discriminate against women because they intend to become pregnant. In Pacourek v. Inland Steel Co., 858 F.Supp. 1393 (N.D. Ill. 1994), the court stated that “discrimination against an employee because she intends to, is trying to, or simply has the potential to become pregnant is . . . illegal discrimination.” Thus, an employer cannot subject an employee to an adverse employment action, such as demotion, reduction in pay or hours, failure to promote, or termination, because she intends to become pregnant. When an employer justifies an adverse employment action on grounds that an employee intends to become pregnant, the employer has discriminated against the employee because of pregnancy in violation of the PDA. Likewise, when an employer asks an employee whether she intends to become pregnant and subsequently subjects the employee to an adverse employment action, the employer’s question is evidence of the employer’s discriminatory intent and can be used to prove that the employee was subjected to the adverse employment action because of pregnancy in violation of the PDA.

Q: Can employers ask job applicants whether they are or intend to become pregnant?

A: Yes. The Pregnancy Discrimination Act (PDA) does not prohibit employers from asking job applicants whether they are pregnant or intend to become pregnant. However, employers are forbidden by the PDA from refusing to hire job applicants because they are pregnant or intend to become pregnant. Thus, if a job applicant is asked whether she is pregnant or intends to become pregnant and subsequently is not hired, the employer’s question is evidence of the employer’s discriminatory intent and can be used to prove that the employee was not hired because of pregnancy in violation of the PDA. Asking a job applicant whether she is pregnant or intends to become pregnant reflects that the employer harbored pregnancy-related stereotypes or assumptions regarding pregnancy, such as stereotypes or assumptions about the job applicant’s attendance, ability to work, reliability, productivity, or commitment to the job because of her pregnancy or intent to become pregnancy. Under the PDA, employers are prohibited from making employment decisions based on pregnancy-related stereotypes or assumptions.

Q: Must employers know of an employee’s pregnancy to discriminate because of pregnancy?

A: Yes. To establish a pregnancy-based discrimination claim under the Pregnancy Discrimination Act, an employee must show that her employer was aware of her pregnancy to be able to discriminate against her based on the pregnancy. “In some cases,” as the U.S. Eighth Circuit Court of Appeals in Hunter v. United Parcel Serv., Inc., 697 F.3d 697 (8th Cir. 2012) explained, the employee’s pregnancy “is obvious and it is reasonable to assume that the employer was aware of such status, for example, if a woman is nine months pregnant with a protruding stomach that she makes no attempt to conceal, awareness can be presumed.” When an employee’s pregnancy is not obvious, a pregnant employee must establish that she notified the employer of her pregnancy to prove a pregnancy-based discrimination claim.

Q: Does protection under the Pregnancy Discrimination Act end after women give birth?

A: No. The protection afforded to women against pregnancy-based discrimination under the Pregnancy Discrimination Act (PDA) is not limited to the time during which they are pregnant. In Donaldson v. Am. Banco Corp., Inc., 945 F.Supp. 1456 (D. Colo. 1996), the court observed that “it would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place.” Thus, an employee need not be pregnant at the time of an adverse employment action to be protected from discrimination under the PDA. Rather, the PDA protects women from discrimination while they are “affected by pregnancy, childbirth, or related medical conditions.” Consequently, courts have determined that the PDA protects women from discrimination while pregnant, while on maternity leave, and soon after returning from maternity leave.

For example, the court in Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995) found that an employee was protected from discrimination by the PDA when she was fired less than four months after giving birth. In Shafrir v. Ass’n of Reform Zionists of Am., 998 F.Supp. 355 (S.D. N.Y. 1998), the court ruled than an employee was protected from discrimination under the PDA when she was fired after recently giving birth and was on maternity leave. In Briggs v. Women in Need, Inc., 819 F.Supp.2d 119 (E.D. N.Y. 2011), the court explained “the time at which” employees cease to be protected from discrimination because of pregnancy, childbirth, or related medical conditions “depends on the facts and circumstances of the particular case.”

Q: Can pregnant employees who are able to work be forced to take a leave of absence?

A: No. As the court in E.E.O.C. v. Bob Evans Farms, LLC, 275 F.Supp.3d 635 (W.D. Pa. 2017) observed, “[o]ne specific congressional goal in passage of the [Pregnancy Discrimination Act] was to make it unlawful to force pregnant women who were not unable to work to take leave that they had not requested.” In harmony with the intent of Congress, the U.S. Supreme Court determined in UAW v. Johnson Controls, 499 U.S. 187 (1991) that under the Pregnancy Discrimination Act (PDA), “pregnant women who are able to work must be permitted to work [under] the same conditions as other employees” and employers are “not permitted to force women who become pregnant to stop working regardless of their ability to continue.” Thus, so long as pregnant employees can perform the functions of their job, employers cannot force pregnant employees to take a leave of absence from work because of their pregnancy. When an employer forces a pregnant employee who can perform the functions of her job to take a leave of absence because of her pregnancy, the employer has engaged in pregnancy-based discrimination in violation of the PDA.

Q: Is a forced leave of absence justified based on health concerns for pregnant women?

A: No. Courts have determined that the protections of the Pregnancy Discrimination Act (PDA) apply regardless of the stage of pregnancy. Thus, the PDA prohibits employers from forcing pregnant women who can perform the functions of their job to take a leave of absence from work based on concerns for their health. “With the PDA,” the U.S. Supreme Court explained in UAW v. Johnson Controls, 499 U.S. 187 (1991), “Congress made clear that the decision . . . to work while being pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.”

In E.E.O.C. v. Corinth, Inc., 824 F.Supp. 1302 (N.D. Ind. 1993), where the employer did not schedule a pregnant employee for further work because she had gotten “too big” and could “fall down” in the restaurant at which she was a server, the court determined that “terminating a pregnant employee, or forcing her to take leave because of concern for her health or concern for the employer’s potential liability, are employment decisions based on impermissible factors.” Thus, when an employer forces a pregnant employee who can perform the functions of her job to take a leave of absence based on concerns for her health, the employer has discriminated against her because of pregnancy in violation of the PDA. Likewise, when an employer terminates a pregnant employee who can perform the functions of her job based on concerns for her health, the employer has discriminated against her because of pregnancy in violation of the PDA.

Q: Can a forced leave of absence be justified based on concerns for the unborn child?

A: No. Under the Pregnancy Discrimination Act (PDA), employers are forbidden from forcing pregnant employees who can perform the functions of their job to take a leave of absence from work based on concerns for the health of the unborn child. In UAW v. Johnson Controls, 499 U.S. 187 (1991), the U.S. Supreme Court observed that “employment late in pregnancy often imposes risks on the unborn child, but Congress indicated that the employer may take into account only the women’s ability to get her job done.” The Johnson Controls Court further explained that “decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.”

These principles are illustrated in Peralta v. Chromium Plating & Polishing Corp., 2000 WL 34633645 (E.D. N.Y. Sep. 15, 2000). In that case, an employer refused to allow a pregnant employee to continue working until she provided a note from her doctor stating that her work would not endanger either herself or her unborn child. The court found that the PDA “mandates that the decision to work while pregnant be left to each individual woman to make for herself” and that an “employer cannot usurp this choice, even if it is motivated by a benevolent desire to help a woman or her unborn child.” Thus, when an employer forces a pregnant employee who can perform the functions of her job to take a leave of absence based on concerns for the health of the unborn child, the employer has discriminated against her because of pregnancy in violation of the PDA.

Q: Can pregnant employees be transferred to a different job because of safety concerns?

A: No. Under the Pregnancy Discrimination Act (PDA), so long as pregnant employees can perform the functions of their job, employers are prohibited from transferring them to a different position based on safety concerns. In UAW v. Johnson Controls, 499 U.S. 187 (1991), the U.S. Supreme Court explained that an employer’s tort liability for allowing a pregnant employee to continue working in a position it considers unsafe because of her pregnancy would be remote if the employer “fully informed” the pregnant employee of the risks inherent in performing the job and otherwise did not act negligently. When an employer forces a pregnant employee who can perform the functions of her job to transfer to a different position because of safety concerns, the employer has discriminated against her because of pregnancy in violation of the PDA.

Q: Can employers ever force pregnant employees to take a leave of absence?

A: In very limited circumstances, employers may force pregnant employees to take a leave of absence from work they had not requested. To lawfully require a pregnant employee to take a leave of absence, an employer must prove that non-pregnancy is a bona fide occupational qualification (BFOQ). Simply stated, the BFOQ defense is limited to circumstances in which pregnancy actually interferes with an employee’s ability to perform the job. The U.S. Supreme Court has described the BFOQ defense as a very narrow exception to the Pregnancy Discrimination Act’s prohibition against discrimination because of pregnancy, childbirth, or pregnancy-related medical conditions. Under Supreme Court precedent and federal case law applying that precedent, the BFOQ defense only applies in exceptional circumstances. Consequently, courts have very rarely found that an employer established a pregnancy-based BFOQ defense.

Q: Are employment decisions based on pregnancy-related stereotypes or assumptions unlawful?

A: Yes. Under the Pregnancy Discrimination Act (PDA), employers are forbidden from making employment decisions based on pregnancy-related stereotypes or assumptions. When an employer makes an employment decision based on a pregnancy-related stereotype or assumption, the employer has discriminated against the employee because of pregnancy in violation of the PDA. Thus, remarks made by supervisors or managers reflecting pregnancy-related stereotypes or assumptions are evidence of pregnancy discrimination. When supervisors or managers make remarks reflecting pregnancy-related stereotypes or assumptions, the employee claiming pregnancy discrimination can use the remarks to prove that her pregnancy played an impermissible role in the challenged employment decision.

Q: What types of remarks reflect pregnancy-related stereotypes or assumptions?

A: Pregnancy-related stereotypes or assumptions generally pertain to the attendance, ability to work, reliability, productivity, or job commitment of women affected by pregnancy, childbirth, or pregnancy-related medical conditions. Examples of remarks reflecting stereotypes or assumptions about women affected by pregnancy, childbirth, or pregnancy-related medical conditions include: firing a pregnant employee because “with all of the problems” she might be having soon, terminating her is “probably the best decision”; refusing to hire a pregnant employee because she would miss “too much” work or will be “unreliable”; discharging a pregnant employee because of concerns about her desire or ability to continue working after giving birth; terminating a pregnant employee because she would be “unable to fulfill” her job duties due to her pregnancy; refusing to promote a pregnant employee because her pregnancy does “not fit the company’s image” of dedication to work; refusing to hire or firing a pregnant employee because she would at some future date need leave because of her pregnancy; firing an employee who recently returned to work after giving birth so she could “spend more time” with her newborn child; and referring to an employee’s pregnancy as a “problem,” “handicap,” or “impairment.”

Q: Are women who miss work because of pregnancy entitled to preferential treatment?

A: No. In Lang v. Star Herald, 107 F.3d 1308 (8th Cir. 1987), the U.S. Eighth Circuit Court of Appeals stated that the Pregnancy Discrimination Act (PDA) “does not create substantive rights to preferential treatment.” Thus, the PDA does not require that employers give preferential treatment to pregnant employees who miss work because of pregnancy, childbirth, or pregnancy-related medical conditions. Instead, the PDA only requires that employers treat pregnant employees the same as nonpregnant employees. This means that employers must treat pregnant employees who miss work because of pregnancy, childbirth, or pregnancy-related medical conditions the same as nonpregnant employees who miss work. If an employer allows nonpregnant employees to miss work, the employer must allow pregnant employees to miss a comparable amount of work because of pregnancy, childbirth, or pregnancy-related medical conditions. When an employer overlooks the absences of nonpregnant employees but does not overlook the comparable absences of pregnant employees, the PDA has been violated.

Q: Can pregnant employees be fired for missing work due to pregnancy?

A: Yes. As the U.S. Fifth Circuit Court of Appeals explained in Stout v. Baxter Healthcare Corp., 282 F.3d 856 (5th Cir. 2002), the Pregnancy Discrimination Act (PDA) “does not protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or complications of pregnancy, unless the absences of nonpregnant employees are overlooked.” Thus, although the PDA does not require an employer to overlook a pregnant employee’s absences from work, employers are prohibited from penalizing a pregnant employee for such absences while overlooking the comparable absences of nonpregnant employees. If an employer does not punish pregnant employees who miss work, then the employer is prohibited from punishing pregnant employees when they miss work because of pregnancy or pregnancy-related medical conditions. For example, if an employer does not discipline or terminate nonpregnant employees for missing two days of work, the employer is prohibited from terminating a pregnant employee for missing two days of work because of pregnancy or a pregnancy-related medical condition. If the employer only terminates the pregnant employee under such circumstances, the employer’s more favorable treatment of nonpregnant employees is evidence of pregnancy discrimination.

Q: Does the PDA compel employers to provide accommodations to pregnant employees?

A: No. The Pregnancy Discrimination Act (PDA), as the U.S. Sixth Circuit Court of Appeals in Fields v. Bolger, 723 F.2d 1216 (6th Cir. 1984) explained, “does not require employers to extend any benefit to pregnant women that they do not already provide to other [nonpregnant] employees.” Thus, as the Fields court observed, the PDA does not expressly “compel an employer” to accommodate pregnant employees who are temporarily unable to perform the functions of their job because of pregnancy or pregnancy-related medical conditions. In Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), the U.S. Seventh Circuit Court of Appeals further explained that the PDA does not mandate that employers take “steps to make it easier for pregnant women to work” and employers may even “treat pregnant women as badly as they treat similarly affected but nonpregnant employees.” Consequently, pregnant employees who are temporarily unable to perform the functions of their job do not have a substantive right under the PDA to special accommodations that would enable them to continue working, such as light duty work, transfer to a different position, leave without pay, or shifting job duties to other employees.

Q: When does the PDA require employers to accommodate pregnant employees?

A: In certain circumstances, the Pregnancy Discrimination Act (PDA) requires employers to accommodate pregnant employees who are temporarily unable to perform the functions of their job because of pregnancy or pregnancy-related medical conditions. In Newport News Shipbuilding & Dry Dock Co. v. E.E.E.C., 462 U.S. 669 (1983), the U.S. Supreme Court determined that the PDA prohibits employers from treating pregnancy or pregnancy-related medical conditions “less favorably than other medical conditions.” Indeed, the PDA mandates that employers treat “women affected by pregnancy, childbirth, or pregnancy-related medical conditions” the same as non-pregnant employees who are “similar in their ability or inability to work.” In other words, pregnant employees must be given the same opportunities and benefits as nonpregnant employees who are similar in their ability or inability to work. Thus, the U.S. Eighth Circuit Court of Appeals in Deneen v. Northwest Airlines, Inc., 132 F.3d 431 (8th Cir. 1998) observed, although the PDA allows employers to treat pregnant employees as badly as they treat other nonpregnant employees, “the opposite [ ] is also true” and “employers must treat pregnant women as well was they treat similarly affected [nonpregnant] employees.”

In Gratton v. JetBlue Airways, 2005 WL 1251786 (S.D. N.Y. May 25, 2005), the court explained that when an “employer either provides, or has a policy of providing, a reasonable accommodation to a nonpregnant employee whose pregnant counterpart is similar in her ability or inability to work, the employer must also reasonably accommodate the pregnant employee.” This means that if an employer accommodates nonpregnant employees who are temporarily unable to perform the functions of their job because of a medical condition, then the employer must accommodate pregnant employees who are temporarily unable to perform the functions of their job because of pregnancy or pregnancy-related medical conditions. For example, if an employer accommodates nonpregnant employees who are temporarily unable to perform the functions of their job because of a medical condition, such as providing them with light duty work, transfer to a different position, leave without pay, or shifting job duties to other employees, then the employer must provide pregnant employees who are temporarily unable to perform the functions of their job because of pregnancy or pregnancy-related medical conditions with the same or similar accommodations.

Q: Can pregnant employees be fired when they are unable to perform their job duties?

A: Yes, depending on the facts and circumstances of a particular case. Because courts have determined that the Pregnancy Discrimination Act (PDA) does not require employers to give pregnant employees preferential treatment or special accommodations, pregnant employees can be terminated when they are incapable of performing their job duties because of pregnancy or pregnancy-related medical conditions. However, because the PDA mandates that employers must treat pregnant employees the same as nonpregnant employees, pregnant employees who are unable to perform the functions of their job because of pregnancy or pregnancy-related medical conditions cannot be terminated if the employer accommodates nonpregnant employees who are unable to perform the functions of their job because of a medical condition. When an employer accommodates nonpregnant employees who are incapable of performing their job duties because of a medical condition but refuses to provide a pregnant employee with the same or similar accommodations to enable her to continue working, the employer has unlawfully discriminated against the pregnant employee in violation of the PDA. If the employer discharges the pregnant employee because she is unable to perform her job duties without an accommodation, then the employer has unlawfully terminated the pregnant employee in violation of the PDA.

Q: Are pregnancy-related medical conditions a disability under the ADA?

A: Courts have consistently determined that pregnancy, standing alone, does not constitute a disability for purposes of the Americans with Disabilities Act (ADA). However, courts have also ruled that conditions and complications related to pregnancy can constitute a disability for purposes of the ADA. In Mayorga v. Alorica, Inc., 2012 WL 3043021 (S.D. Fla. July 25, 2012), the court determined that “where a medical condition arises out of pregnancy and causes an impairment separate from symptoms associated with a healthy pregnancy, or significantly intensifies the symptoms associated with a healthy pregnancy, such medical condition may fall within the ADA’s definition of disability.” In applying this principle, courts have determined that pregnancy-related conditions or complications that are not experienced in a normal pregnancy, such as risk of miscarriage or extended bed rest, may qualify as a disability under the ADA.

Q: Does the ADA require employers to accommodate pregnancy-related medical conditions?

A: Yes, depending on the facts and circumstances of a particular case. Under the Americans with Disabilities Act (ADA), employers are required to provide disabled employees with reasonable accommodations that enable them to perform the essential functions of their job. Reasonable accommodations under the ADA may comprise of job restructuring, part-time or modified work schedules, leave of absence, and working from home. Although pregnancy, by itself, is not a disability under the ADA, pregnant employees may be entitled to an accommodation under the ADA if they can show a pregnancy-related condition or complication qualifies as a disability under the ADA. If a pregnancy-related condition or complication qualifies as a disability under the ADA, an employer is obligated under the ADA to provide a pregnant employee with a reasonable accommodation. If the employer fails or refuses to accommodate the pregnant employee, the employer has discriminated against the pregnant employee because of disability in violation of the ADA.

Q: Does the Pregnancy Discrimination Act require employers to offer maternity leave?

A: No. The Pregnancy Discrimination Act (PDA), as the U.S. Seventh Circuit Court of Appeals in Marshall v. American Hosp. Ass’n, 157 F.3d 520 (7th Cir. 1998) explained, “does not require employers to offer maternity leave or other special assistance to pregnant employees.” Because the PDA does not provide women with adequate job security when they need to miss work due to pregnancy-related medical conditions or to give birth, Congress passed the Family Medical Leave Act (FMLA) in 1993. The FMLA provides pregnant employees with rights and job security far beyond that afforded by the PDA.

Q: Are pregnant employees entitled to leave under the Family Medical Leave Act?

A: Yes. Under the Family Medical Leave Act (FMLA), as the court in Pendarvis v. Xerox Corp., 3 F.Supp.2d 53 (D. D.C. 1998) recognized, “pregnancy is recognized as a special case.” Under the FMLA, a pregnant employee is entitled to twelve workweeks of leave, without pay, over any period of twelve months for the following reasons: (1) for the birth of her child or to care for the newborn child; (2) for prenatal care; (3) when she is unable to work due to pregnancy; and (4) for her own serious health condition following the birth of a child. At the end of FMLA leave, a pregnant employee has the right to be restored by the employer to the position she held when leave commenced or to an equivalent position with equivalent benefits and pay. Thus, when pregnant employees take leave pursuant to the FMLA, the FMLA guarantees their jobs will be waiting for them when they return from leave.

Q: Is leave under the Family Medical Leave Act available to all pregnant employees?

A: No. To be eligible for leave under the Family Medical Leave Act (FMLA), employees, including pregnant employees, must satisfy a broad array of procedural requirements. The FMLA’s procedural requirements include: (1) the employee was employed by the employer for at least twelve months from the date of the commencement of leave; (2) the employee worked at least 1,250 hours during the previous twelve-month period; (3) the employer employed 50 or more employees; and (4) the employee worked at an office or facility where the employer employed at least 50 employees within 75 miles of the office or facility. When these qualifying circumstances exist, a pregnant employee is eligible to take FMLA-protected leave.

Q: Are pregnant employees who are not covered by the FMLA entitled to leave?

A: If pregnant employees are not eligible for leave under the Family Medical Leave Act (FMLA), their eligibility for a leave of absence because of pregnancy, childbirth, or pregnancy-related medical conditions depends on how an employer treats nonpregnant employees under the same or similar circumstances. If the employer allows nonpregnant employees who are ineligible for leave under the FMLA to take a leave of absence from work for medical reasons and return to work upon expiration of the leave, then the employer must provide pregnant employees with the same rights and leave privileges. In other words, the Pregnancy Discrimination Act (PDA) requires parity between an employer’s treatment of pregnant employees and nonpregnant employees. For example, when an employer provides an employee who is ineligible for leave under the FMLA with two weeks of medical leave and allows the employee to return to work upon expiration of the leave, then the PDA requires the employer to provide a pregnant employee the same amount of leave for pregnancy, childbirth, or pregnancy-related medical conditions and allow the pregnant employee to return to work upon expiration of the leave. If the employer denies the pregnant employee the same rights and leave privileges afforded to nonpregnant employees, then the employer has discriminated against the pregnant employee because of pregnancy in violation of the PDA.

Q: What is the most common form of pregnancy discrimination?

A: In most cases, pregnancy discrimination occurs when employers do not treat women affected by pregnancy, childbirth, or pregnancy-related medical conditions the same as nonpregnant employees. Instead, employers treat pregnant-employees differently and less favorably from nonpregnant employees. For example, an employer fires a pregnant employee because of a customer complaint but does not fire nonpregnant employees who were the subject of customer complaints. Likewise, an employer fires a pregnant employee for because of an alleged poor work performance but does not fire nonpregnant employees with the same or worse work performance record. When an employer treats pregnant employees differently or less favorably from nonpregnant employees under the same or similar circumstances, the difference in treatment is evidence of pregnancy discrimination. As observed by the U.S. Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 609 (1993), discrimination in some situations can be proven “from the mere fact of differences in treatment.”

Q: Is replacement by a non-pregnant employee evidence of pregnancy discrimination?

A: Yes. When an employee claims that she was fired because of pregnancy in violation of the Pregnancy Discrimination Act (PDA), the employee can establish a prima facie case of pregnancy discrimination by showing, in relevant part, that she was replaced by an individual who was not pregnant. In the pregnancy discrimination context, showing that a pregnant employee was replaced by an individual who was not pregnant is relevant evidence of the employer’s discriminatory intent. Moreover, evidence showing that the replacement was less qualified than the terminated pregnant employee is relevant in demonstrating that pregnancy discrimination was the real reason for the termination decision.

Q: Are employees protected from pregnancy harassment?

A: Yes. Under the Pregnancy Discrimination Act (PDA), pregnant employees are protected from harassment because of pregnancy, childbirth, or related medical conditions. To violate the PDA, the harassment must be sufficiently severe or pervasive to alter the pregnant employee’s conditions of employment and create a hostile work environment. Generally, pregnancy harassment takes the form of derogatory or demeaning pregnancy-related remarks, insults, or jokes by co-workers, supervisors, or managers, including comments reflecting stereotypes or assumptions about pregnancy, childbirth, or pregnancy-related medical conditions. Once an employer knows or should know that an employee is being harassed because of pregnancy, childbirth, or related medical conditions, the employer is obligated to take prompt and effective remedial action to stop the harassment and prevent recurrence of the harassment. When an employer fails to take remedial action, or the corrective action taken does not stop the harassment, the employer is liable under the PDA for creating and maintain a hostile work environment.

Q: Are employees who complain about pregnancy discrimination protected from retaliation?

A: Yes. Under the Pregnancy Discrimination Act (PDA), employees are protected from retaliation when they complain about perceived pregnancy discrimination or pregnancy harassment in the workplace. Employees are also protected from retaliation when they file a charge of discrimination against an employer with the U.S. Equal Employment Opportunity Commission alleging pregnancy discrimination or pregnancy harassment. The federal employment discrimination laws, such as the PDA, contain anti-retaliation provisions because, as the U.S. Supreme Court in Crawford v. Metropolitan Gov. of Nashville & Davidson County, 555 U.S. 217 (2009) observed, “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.”

Q: What factors are relevant in evaluating whether I was subjected to pregnancy discrimination?

A: The evidence an individual claiming pregnancy discrimination can use to prove her case may take a variety of forms. No single type of evidence is required to prove pregnancy discrimination. In evaluating whether you were discriminated against because of pregnancy, including a pregnancy-based discriminatory adverse employment action or employment decision, it is helpful to consider the following questions:

* Did any employee involved in making the challenged employment decision make any pregnancy-related discriminatory remarks, whether about you, another employee, or any third-person, in the workplace?
* Did any employee involved in making the challenged employment decision make any remarks expressing anger, displeasure, hostility, or resentment about your pregnancy?
* Did any employee involved in making the challenged employment decision make any comments reflecting pregnancy-related stereotypes or assumptions?
* In making the challenged employment decision, did the employer treat you differently or less favorably from nonpregnant employees? Stated another way, were nonpregnant employees given preferential treatment?
* Were you subjected to an adverse employment action, such as demotion, reduction in pay, failure to promote, or discharge, shortly after disclosing your pregnancy? Close timing between the employer’s learning of an employee’s pregnancy and an adverse employment action taken with respect to the employee is evidence of pregnancy discrimination.
* After learning that you were pregnant, did the employer begin treating you differently or less favorably? For example, did the employer begin to scrutinize your work performance, reduce your hours, change your schedule, give you more work, withhold work-related assistance, give you a negative performance evaluation, place you on a performance improvement plan, demote you, or subject you to disciplinary action? In other words, did the employer begin to target you for abusive treatment, if not termination, after learning that you were pregnant?
* Did the employer force you to take leave, or attempt to force you to take leave, that you had not requested.
* Did the employer justify the adverse employment action based on concerns for your health, the health of the unborn child, or the employer’s potential liability?
* Did the employer require you to provide a doctor’s note to prove your fitness to continue working before the employer knew of any pregnancy-related physical restrictions? If so, did the employer place you on unpaid medical leave until you produced a note or when you failed to produce a note?
* Did the employer justify the adverse employment action on grounds that you would at some future date need leave because you are pregnant, including leave for childbirth?
* Did the employer give you a factually untrue, absurd, trivial, or phony reasons for the challenged employment decision?
* Did the employer fail to comply with company policy when subjecting to you to the challenged employment decision? For example, did the employer fail to comply with a progressive discipline policy before taking adverse employment action against you?
* Did the employer discriminate against other pregnant employees? For example, did the employer fire other employees while they were pregnant or shortly after they returned from maternity leave?

If “yes” to any question, you may have a pregnancy discrimination claim.

Q: What damages are available for pregnancy discrimination victims?

A: Under the Pregnancy Discrimination Act (PDA), there is a broad array of remedies available for pregnancy discrimination victims. A fundamental purpose of employment discrimination law is to make employees whole for injuries suffered due to unlawful discrimination. In other words, pregnancy discrimination victims are entitled to be put in the position they would have occupied in the absence of discrimination. A victim of a discriminatory failure to hire, discriminatory demotion, discriminatory compensation, discriminatory failure to promote, or discriminatory discharge is entitled to recover back-pay. Back-pay awards generally reflect not only lost wages or salary, but also other benefits lost due to pregnancy discrimination. To compensate for future damages, the PDA authorizes courts to reinstate discriminatory discharge victims. Pregnancy discrimination victims are also entitled to recover compensatory damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. Under the PDA, punitive damages are also available to discrimination victims. The purpose of punitive damages is to punish employers who discriminate against employees because of pregnancy, childbirth, or related medical conditions.

Do You Have More Questions Or Believe You Have A Case?

Contact Our Ocala, FL Employment Discrimination Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our Marion County, Florida employment discrimination attorneys can help you take action to protect and vindicate your employee rights. If you have more questions or believe that you have a pregnancy discrimination case, please contact our office to speak with our employment discrimination lawyers. You will never have to pay to speak with an employment law attorney here. Our Marion County, Florida employment discrimination lawyers take employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

Marion County Discrimination LawyersRepresenting Florida Employees