Today, women comprise nearly half of the U.S. workforce. The US Department of Labor reports that “eighty-five percent of working women will become pregnant at some point during their careers.” In this historically tight labor market, how companies support their pregnant employees and their partners has the potential to enhance brand reputation—or destroy it.  

 

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There are also several legal protections for pregnant women before and after the birth of babies. Laws and rules governing employer treatment focus on anti-discrimination, FMLA and disability, and there are mandated accommodations for nursing mothers. 

 

In this article, we will explore the legal rights and protections covering pregnancy and the post-partum period; including how employers might need to accommodate expecting employees. We will also look at today’s realities for caregivers, including new parents, and how employers can better support young families with benefits and an inclusive workplace. Finally, we offer some ideas for creating policies and a corporate culture inclusive of the needs of pregnant employees. 

 

What is Pregnancy Discrimination? 

 

Pregnancy discrimination occurs when an employer treats a female employee unfavorably based upon her pregnancy, pregnancy-related medical conditions, childbirth, or pregnancy-related accommodation requests. According to the EEOC, employers are not allowed to discriminate against an employee based on the fact that 

• She is pregnant 

• She was pregnant 

• She could become pregnant – or intends to 

• She has a medical condition related to pregnancy 

• She had an abortion – or intends to 

Pregnancy discrimination includes being fired, rejected for job, passed over for a promotion, given lesser assignments, or being forced to take leave for any of the reasons listed above. The EEOC notes that employers do not have to keep a pregnant employee in a job she is unable to do or that would pose a significant safety risk to others. 

What Laws Protect Pregnant Employees and Parents of Newborn or Nursing Infants? 

 

1. Pregnancy Discrimination Act (PDA): This law is part of Title VII of the Civil Rights Act of 1964 (Title VII) and clarifies that discrimination based on an employee’s pregnancy status, childbirth or related medical conditions is a form of sex discrimination.  

2. Family and Medical Leave Act (FMLA): In companies with 50 or more employees, an employee who has worked for at least one year has the right to take up to 12 weeks of unpaid leave to recover from a serious medical condition, including pregnancy. FMLA leave can also be taken in order to care for a newborn or ill child (adopted or biological). This law is another part of Title VII. 

3. Americans with Disabilities Act Amendment Act (ADAAA): If a pregnancy-related complication or confounding condition limits an employee’s ability to work and it amounts to a disability (albeit temporary), the employee is covered by ADA protections. In these cases, employers must work with the employee to provide appropriate accommodations. An example would be allowing work from home for an employee on bed rest or being able to sit down for 10 minutes each hour to reduce stress on backs, veins and feet. 

4. Affordable Care Act (ACA): The ACA prohibits insurers from declining coverage for pre-existing conditions, including pregnancy. Employers who offer health insurance to employees must include coverage for pregnancy, childbirth, and any medical conditions or complications related to the pregnancy. 

5. Fair Labor Standards Act (FLSA): Employers are required to provide eligible employees (defined as those eligible for overtime pay) with reasonable break time to pump breast milk for a nursing child for one year after the child’s birth. Employers must also ensure there is a private place provided for women to pump milk that is NOT a bathroom facility. 

6. Occupational Safety and Health Act (OSHA): Some workplace environments may contain outsized risks for pregnant women and developing fetuses. For example, jobs that could expose workers to x-rays, radiation, chemicals, or other toxic substances may need to be accommodated during pregnancy. Later in pregnancy, women may not be able to fit into the same workplace gear and protective equipment. 

7. State laws are also in effect in most U.S. states and territories. The great majority of states also have laws against pregnancy discrimination and protecting nursing mothers. Some states go further than federal law, mandating paid pregnancy leave, for example.  

 

Pregnancy Discrimination Hurts Employers and Employees 

 

Discriminating against pregnant employees can be very costly to a business—in terms of financial penalties and reputational damage. The EEOC receives thousands of pregnancy discrimination claims each year. The EEOC reports that “resolving claims has cost employers between $13M and $22M per year (not including litigation awards)” over the last decade. Additionally, employers also paid to settle or litigate civil court lawsuits. The time and resources required to defend against these claims can be substantial. 

 

Mistreatment of pregnant employees can also inflict reputational harm on your organization. These types of stories can evoke great sympathy toward the employee from custo
mers and the public. 

 

How to Avoid Pregnancy Discrimination 

Employers would do well to set workforce management policies that support pregnancy and expressly avoid pregnancy discrimination. Here are several tips: 

 

1. Make sure employer-sponsored benefits treat men and women equally. For example, it would be discrimination to offer family medical coverage to a female employee’s husband but not for a male employee’s pregnant wife. 

2. Do not ask about pregnancy or children during interviews. Pregnancy and whether a woman plans to have children are not subjects that should be discussed in an interview. 

3. Avoid the culture of automatic rejection when it comes to accommodations. Do not deny pregnant women accommodations you have given other employees. Some of the temporary accommodations most frequently requested by pregnant women include work from home (in cases of bedrest or severe morning sickness), alternative scheduling, light duty, not lifting heavy items, and time to sit down and rest.  

Before denying these requests, consider whether they’ve been granted to other employees (women or men) with other medical conditions. For example, did employees get to avoid lifting after a hernia repair, or spine or shoulder surgery? If an employee requests temporary work from home status due to severe morning sickness, consider whether remote work have been granted for other temporary stomach or bowel disabilities. 

4. Do not push pregnant employees with medical concerns to take unpaid leave or quit. If an employee requests a pregnancy accommodation, the employer should give it full consideration. Many accommodations can be easily accomplished. 

 

Considering the Need for Caregiver Benefits 

 

After ensuring your talent management policies are compliant with federal and state laws and that your company avoids pregnancy discrimination, go a step farther. Build a company culture that values your employees as whole human beings, including their families and children.  

 

Current surveys show that caregivers are experiencing more financial and mental stress than other workers. Caregivers face a lot of demands at work and at home. On top of it all, inflation is making it much harder for employees to keep up with costs such as paid maternity leave or childcare stipends. Caregiver benefits are a way employers can help young parents experience better wellbeing and deal with inflation. Improved benefits offerings help employers demonstrate commitment to supporting pregnant employees and parents. Caregiver benefits can help earn your company a good reputation and contribute to better staff retention. 

 

Create a Supportive Culture and Focus on Inclusion 

 

Employers have legal obligations when it comes to pregnant employees, but they also have an opportunity to create a more inclusive and supportive workplace. Train managers in active listening skills and how to be more empathetic to the needs of pregnant employees.   

 

When you build a culture supportive of pregnant women and children, current and prospective employees will be attracted to your company as an employer of choice. Additionally, customers will have more respect your brand as a company with strong ethics and values.  

 

If you’d like to speak to an HR representative about your business, contact us.