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PREGNANCY DISCRIMINATION

It is against the law for an employer, school, bank, credit lender or landlord to deny you opportunities or benefits because of your status as a pregnant woman or your desire to have children in the future. GELC provides free legal services to those who have been discriminated against because of their pregnancy in employment and education. If you believe you have been discriminated against and wish to speak with someone from our legal team call our Hotline at (888) 833- 4363.

This section focuses on pregnancy discrimination in the area of employment. Pregnancy discrimination is against the law under federal, state and local laws. While laws differ in their scope and requirements it is unequivocal and nearly without exception that a woman cannot be discriminated against because she is or is considering becoming pregnant. This means she cannot be treated less well than similarly situated non-pregnant women or men in a term or condition of her job. Barring other protections under other laws, a pregnant woman, or woman who is recovering from childbirth, cannot be denied protected time off from work if other non-pregnant employees are given such leave. Until fairly recently, pregnant women were only entitled to be treated equally to non-pregnant employees. The law however has developed and become more expansive. Under federal law and most state and local laws, pregnant women are entitled to be accommodated because they are pregnant, including, but not limited to job modifications, schedule changes, flex time and even time off from work.

The Federal Pregnancy Discrimination Act (“PDA”)

The PDA promises the equal treatment of pregnant women as compared to ‘similarly situated’ non-pregnant women and men in the workplace. An employer cannot treat an employee differently than her co-workers who are doing the same or similar jobs, or who have the same employee benefits as her, because she is pregnant. Moreover, the employer cannot assume a pregnant is unable to work because she is pregnant. It is against the law to fire a pregnant employee because of an employer’s concerns about the employee’s health and safety or that of her unborn child when performing certain types of work. At the same time, if safety precautions are used by non-pregnant employees, e.g. equipment or uniforms, adjustments must be made so that a pregnant employee can remain on the job. For example, when police officers must wear bullet proof vests, a police force cannot legally refrain from offering similar vests to pregnant officers, even though larger vests may need to be purchased.

The PDA also prohibits stereotyping against pregnant workers. For instance, evaluating a pregnant worker's performance differently than a similarly situated non-pregnant female or male employee. It is illegal to assume pregnant employees are less dedicated to their jobs, more emotional, or less able to do their jobs. It is also illegal to assume that women do not want to return to work after having children. Employers cannot make decisions about an employee's job, compensation or future with the employer based on her having been or thinking about becoming pregnant. Employers may not criticize and/or harass a pregnant employee because of her size or difficulty maneuvering in the workplace.

Reasonable Accommodations

Under the PDA, certain accommodations may be required for pregnant women if similar accommodations are offered by an employer to their non-pregnant employees. The PDA only covers employers with 15 or more employees.

 

The Americans with Disabilities Act, Amendment Act ("ADAAA")

The ADAAA requires that pregnancy be treated similarly to other "disabling conditions," meaning that a pregnant employee may be able to request and be granted a reasonable accommodation on the basis of her pregnancy, pregnancy-related condition, or post childbirth recovery. In order to be entitled to a reasonable accommodation under the ADAAA, an employee must be able to show that they have a “disability,” as defined by the ADAAA, even if this disability is time- limited. Accommodations may be as simple as reassigning job duties, reducing heavy lifting, having a chair to sit in, or more extensive, such as giving an employee a temporary leave of absence.  

Most pregnant women can continue safely working during pregnancy and typically want and need to for economic reasons. Many employers recognize that it is in their best interests to accommodate pregnant employees so they can stay on the job. But many others do not. In our experience representing pregnant women in discrimination cases is that when a woman announces to her employer that she is pregnant to her employer – even before she needs any type of accommodation or mentions the issue of a maternity leave – outdated stereotypes about the role of women at work and her commitment to her family emerge. We regularly work on half of women who found their reliability questioned and evaluations of their worth to the company severely downgraded after announcing they are pregnant.

 

 

Pregnancy Discrimination in New York State and New York City 

Many State and Local laws provide even more expanisve rights for pregnant women. For instance, in New York City, employers may be required to accommodate the needs and limitations of pregnant workers without having to prove their limitationsrise to the level of a medical disability. In fact, under NYC's broad civil rights scheme, employers with four or more employees are required to accommodate a pregnant workers' normal bodily restrictions as relates to her pregnancy unless it can prove an undue hardship to the business. 

 

Expressing Breast Milk at Work

Under the Fair Labor Standards Act ("FLSA"), nursing mothers are entitled to break time to express milk at work.

Employers are required to provide reasonable break time to an employee to pump breast milk for one year after the birth of a child. Employers are required to provide a place that may be used by an employee to pump milk that is not a bathroom, and is out of view and free from intrusion from coworkers and the public. Employers are required to provide a reasonable amount of break time to express milk as needed by the nursing mother, the duration and frequency of which can vary. The location provided must be functional as a space for expressing breast milk, and if not dedicated solely to the nursing mother’s use, it must be made available when needed in order to meet the requirement. 

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of their work site, are counted when determining whether this exemption may apply. 

Employers are not required under the FLSA to compensate nursing mothers for breaks taken to express milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. 

Some states, like New York, provide greater protections to employees, for example, by providing compensated break time, providing break time for exempt employees and providing break time beyond 1 year after the child’s birth.

What do I do if I Have Been Discriminated Against Because of My Pregnancy?  

If you are pregnant and need an accommodation, e.g. a job modification to continue doing your job, or if you have complications related your pregnancy and you don’t know how or are afraid to approach your employer to ask for accommodations or leave, you can call our Hotline at (888) 833-4363. Someone from our legal team will be able to provide you with initial advice on how to request such accommodation and/or to review any legal claims if you have been denied a legitimate requested accommodation.

Examples of Pregnancy Accommodations Include:

Sitting, instead of standing, during the workday

Carrying a water bottle 

Taking more frequent breaks to use the restroom, have a snack, or rest

Receiving assistance with heavy lifting

Working a modified or part time schedule

Taking leave

 

RESOURCES & LINKS

Pregnancy Discrimination Act of 1978

Family and Medical Leave Act

Americans with Disabilities Act Amendments Act

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NYC Reasonable Accommodation

Pregnancy Discrimination in New York State

Federal Pregnant Worker's Fairness Act (Proposed)

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ARTICLES & DOWNLOADS

Guide to Pregnancy
Discrimination in Employment
EEOC Guidance: Pregnancy Discrimination and Related Issues
NYCCHR Guidance: Discrimination
on the Basis of Pregnancy