Ensuring compliance with the Pregnancy Discrimination Act (PDA)

What is the Pregnancy Discrimination Act (PDA)?

Federal law prohibits an employer from discriminating against a job applicant or employee based on sex. Under the PDA, sex discrimination can include discrimination on the basis of pregnancy, childbirth, or related medical conditions.

Does the PDA apply to my organization?  Is my organization at risk for a lawsuit?

The PDA applies to any employer with 15 or more employees.

The Equal Employment Opportunity Commission (EEOC) recently reported a substantial increase in the number of charges filed against employers for pregnancy discrimination.[1] In 1997, approximately 3,900 such charges were filed with the EEOC and related agencies. In 2013, approximately 5,342 charges were filed.[2]

Under the PDA, an employee may have a claim against her employer in a broad array of situations. The PDA prohibits an employer from discriminating against a female employee in the following contexts, among others:

• A current pregnancy;
• A past pregnancy;
• The intention or potential to become pregnant (or lack thereof);
• Undertaking fertility treatments;
• Contemplating or procuring an abortion;
• Using contraceptives; and
• Need for breaks to breastfeed or pump breast milk during standard business hours.

What does the PDA require of an employer?

The PDA imposes two primary obligations on employers:

(1) The PDA prohibits pregnancy-related discrimination in all aspects of employment. An employer cannot consider a woman’s pregnancy, childbirth, or related medical conditions in the following contexts, for example:

• Hiring;
• Firing;
• Issuing promotions;
• Issuing demotions;
• Deciding transfers (to positions in different locations and/or involving substantially different duties);
• Forcing an employee to take leave;
• Administering fringe benefits (such as vacation days and health insurance);
• Taking disciplinary actions; and
• Maintaining policies that discriminatorily affect pregnant women.

In any of the above contexts, an employer violates the PDA if it bases an employment decision or action solely on factors related to pregnancy, childbirth, or related medical conditions.

Importantly, however, an employer can also be liable if it considers legitimate factors along with pregnancy, childbirth, or related medical conditions. For instance, if an employer fails to promote a female employee because she recently took maternity leave and, simultaneously, because she lost an important service contract, it is still in violation of the PDA.

(II) The PDA also requires that an employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner it treats other applicants or employees that are similarly situated in their ability or inability to work. So, if a woman affected by pregnancy is nonetheless willing and able to carry out her job duties, an employer should treat her in the same manner it treats other willing and able employees.  For example, an employer should not force a pregnant employee to take leave if she is still willing and able to work, or fail to promote a deserving candidate because she has expressed the desire to start a family.

Conversely, if a woman is affected by pregnancy to the extent that she is temporarily unable to perform her job duties, the PDA provides that her employer should treat her in the same manner it treats ‘other employees similarly situated in their inability to work.’  Until recently, employers were unsure how far this requirement extended. The EEOC had broadly declared that if an employer extended any accommodation to any group of workers with physical limitations (for instance, a reprieve from heavy lifting to workers injured on the job), it must automatically extend the same accommodation to any worker affected by pregnancy.

However, this year, in Young v. UPS, Inc., the Supreme Court clarified that the PDA does not guarantee employees affected by pregnancy an “unconditional most-favored-nation status.”[3] In short, a woman affected by pregnancy is not, by default, entitled to every benefit or accommodation that an employer extends to any of its other temporarily disabled employees.

Still, Young v. UPS, Inc. clarified that an employee can present evidence that other nonpregnant employees with physical limitations received more favorable treatment, or that pregnant employees have been disproportionately affected by an employer’s seemingly neutral policy. Such ‘comparative’ evidence may allow a court or jury to infer that pregnancy discrimination occurred.  

What if an employee becomes temporarily disabled because of pregnancy or childbirth?

It is important to note that many pregnancy-related impairments can qualify as disabilities under the Americans with Disabilities Act (ADA), which may impose additional obligations on an employer. The ADA prohibits an employer from discriminating against an employee on the basis of disability, provided the disabled employee can perform their job functions outright or will be able to do so if the employer reasonably accommodates their disability. While pregnancy itself is not recognized as a disability under the ADA, other related conditions can qualify— for example, pregnancy-induced carpal tunnel syndrome, gestational diabetes, or preeclampsia.

The ADA does not just require an employer to avoid discriminating against an employee who suffers from a pregnancy-related disability— in such a situation, the ADA also requires that an employer provide the disabled employee with reasonable accommodations that will enable her to perform her job duties. Reasonable accommodations for pregnant employees might include, for example:

• Reprieves from heavy lifting;
• Access to places to sit;
• Permission to take paid or unpaid leave;
• More flexible work schedules;
• More frequent or longer bathroom breaks; and
• Temporary reassignments or redistributions of responsibilities.

What if the employer has good intentions?

Under the PDA, the intentions behind the employer’s actions do not matter. An employer cannot defend itself by claiming that it acted out of concern for the employee or her fetus.  

Should my organization be aware of any other laws in this area?

You should keep in mind that:

• As discussed above, the ADA applies to female employees who suffer from pregnancy-related disabilities. The ADA requires an employer to provide reasonable accommodations to an employee who is temporarily disabled for pregnancy-related reasons.
• Your state’s laws may also impose additional requirements. For example, as of January 2015, Illinois law requires employers to comply with all pregnancy-related requests for reasonable accommodations, even for common conditions that may not necessarily qualify as disabilities.
• Federal and state laws also recognize other types of employment discrimination, and an employer might be found to have discriminated against a pregnant employee on multiple grounds. For instance, federal law also prohibits other types of sex discrimination, and discrimination based on race, color, religion, national origin, age, and disability, any of which might coincide with pregnancy discrimination. Note, too, that the EEOC recently reported that the number of pregnancy discrimination claims filed by women of color increased by 76% from 1996 to 2005.

Where can my organization get more information?

(1) The EEOC:  The EEOC has published a number of helpful sources interpreting the PDA, some of which are compiled here: http://www.eeoc.gov/laws/types/pregnancy_guidance.cfm.

(2) Consult one of our attorneys:  Chuhak & Tecson can help your organization understand its obligations as an employer under the PDA.  Our attorneys can assist your organization in developing a compliance program, hold information sessions to educate decision-makers within your organization about the PDA, or defend your organization in the event that it does face a law suit for pregnancy discrimination. If you are faced with a situation involving a pregnant employee, our attorneys can also analyze the events, offer advice as to how you should proceed, and help you avoid legal liability.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such. 

Client alert authored by: Rachel Dillon, Law Clerk (Northwestern Law ‘16)