Employer Obligations Under Pregnancy Discrimination Laws

Pregnancy-related discrimination and accommodation obligations are governed by multiple federal laws, including the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and the ADA as interpreted after the PWFA's enactment. Employers with 15 or more employees must understand these overlapping requirements.

The Pregnancy Discrimination Act

The PDA, an amendment to Title VII, prohibits discrimination based on pregnancy, childbirth, or related medical conditions. Under the PDA:

• Employers cannot refuse to hire, fire, demote, or otherwise discriminate against an employee because of pregnancy
• Pregnant employees must be treated the same as other employees who are similar in their ability or inability to work
• If an employer provides light duty or modified work to employees with on-the-job injuries, it generally must offer the same to pregnant employees with similar limitations
• Employers cannot force a pregnant employee to take leave if she is able to work
• Health insurance must cover pregnancy-related conditions on the same basis as other medical conditions

The Pregnant Workers Fairness Act

The PWFA, which took effect in June 2023, provides additional protections beyond the PDA:

• Employers must provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would cause undue hardship
• Unlike the PDA, the PWFA does not require comparison to how other employees are treated
• Employers must engage in an interactive process similar to the ADA process
• Employers cannot require an employee to take leave if another reasonable accommodation is available
• Employers cannot deny employment opportunities based on the need for accommodation
• Employers cannot retaliate against employees for requesting or using accommodations

Common Accommodation Requests

Typical accommodations under the PWFA include:

• Additional bathroom breaks
• Permission to carry and drink water
• Seating accommodations for jobs that normally require standing
• Modified schedules for prenatal appointments
• Temporary reassignment from duties involving heavy lifting or exposure to hazardous substances
• Telework during periods of severe morning sickness
• Temporary suspension of certain essential functions with reassignment of those tasks

Practical Compliance Steps

To comply with pregnancy-related laws:

• Update your anti-discrimination and accommodation policies to reflect the PWFA
• Train managers and HR staff on the interactive process for pregnancy accommodations
• Do not ask applicants about pregnancy status or family planning
• Ensure hiring decisions are based on ability to perform the job, not assumptions about pregnancy
• Process accommodation requests promptly and in good faith
• Document the interactive process and any accommodations provided or denied
• Review job descriptions to clearly identify essential versus marginal functions

Intersection with FMLA and State Laws

Pregnancy-related obligations often overlap with other laws:

• FMLA provides up to 12 weeks of unpaid leave for pregnancy and bonding
• Some states provide paid family leave for pregnancy and bonding
• State pregnancy accommodation laws may be broader than the federal PWFA
• ADA accommodations may be required for pregnancy-related complications that constitute disabilities
• Apply the most protective law in each situation