The PDA requires that
a covered employer treat women affected by pregnancy, childbirth,
or related medical conditions in the same manner as other applicants
or employees who are similar in their ability or inability to work.
The PDA covers all aspects of employment, including firing, hiring,
promotions, and fringe benefits (such as leave and health insurance
benefits). Pregnant workers are protected from discrimination based
on current pregnancy, past pregnancy, and potential pregnancy. Various other laws protect the pregnant employee, including the
FMLA, and the Health Insurance Portability and Accountability
Act (HIPAA), and in some
cases, the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA)where pregnancy-related complications qualify as a disability.
The PDA amended Title VII of the Civil Rights Act in 1978. The PDA defines
discrimination because of sex to include discrimination because of
or on the basis of pregnancy. As with other claims of discrimination
under Title VII, an employer will be found to have discriminated on
the basis of pregnancy if an employee's pregnancy, childbirth, or
related medical condition was all or part of the motivation for an
under the PDA can be proven using any of the types of evidence used
in other sex discrimination cases. Discriminatory motive may be established
directly, or it can be inferred from the surrounding facts and circumstances.
The PDA further provides that discrimination based on pregnancy includes
failure to treat women affected by pregnancy the same for all employment
related purposes as other nonpregnant employees similarly affected
in their ability or inability to work. Employer policies that do not
facially discriminate on the basis of pregnancy may still violate
the PDA where they impose significant burdens on pregnant employees
that cannot be supported by a sufficiently strong justification (29 CFR 1604.10).
The issue of pregnancy
discrimination and accommodation has been addressed by the U.S. Supreme
Court in the Young case. The question before the Court was
whether and under what circumstances the PDA requires an employer
that provides work accommodations to nonpregnant employees with work
limitations to also provide work accommodations to pregnant employees
with similar work limitations.
The Court's decision
articulated a burden-shifting analysis for discrimination under the
PDA. According to the Court, an employee with a claim under the PDA
may prove discrimination by showing that she belongs to the protected
class, that she sought accommodation, that the employer did not accommodate
her, and that the employer did accommodate others who were similar
in their ability or inability to work.
Once the employee has
satisfied these requirements, the employer must articulate a legitimate,
nondiscriminatory reason for treating the pregnant worker differently
than a nonpregnant worker similar in his or her ability or inability
to work. Even if an employer can assert a legitimate nondiscriminatory
reason for the different treatment, the pregnant worker may still
show that the reason is pretextual (i.e., not the “real” reason for
the different treatment).
In Young v, UPS, the Court held that an employer’s light-duty policy can be challenged
as intentional sex discrimination if the policy provides light duty
to a large percentage of nonpregnant workers while failing to accommodate
a large percentage of pregnant workers. In the Young case,
the employer provided temporary modified work assignments only for
drivers who were either injured on the job, suffered from a disability
as defined by the ADA, or lost their Department of Transportation
certifications. Young, a pregnant employee, was requesting light duty
for her pregnancy-related lifting restriction.
It is important to note that the Court recognized that its decision
is of limited significance in light of the ADAAA, which was enacted
after the case began and, therefore, did not govern the case.
In July 2015, the Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing an employer’s obligation to accommodate
pregnant employees in light of the Supreme Court’s decision in Young v. United Parcel ServiceDoc. No. 12–1226 (2015)
. EEOC’s Enforcement Guidance on Pregnancy Discrimination
and Related Issues
is available online at eeoc.gov
Pregnancy discrimination.EEOC’s 2015 guidance makes it clear that Title
VII, as amended by the PDA, prohibits discrimination based on current
pregnancy, past pregnancy, potential or intended pregnancy ( i.e.,
because a woman might get pregnant), as well as medical conditions
related to pregnancy or childbirth.
Fertility and childbearing. The
PDA's protection extends to differential treatment based on an employee's
fertility or childbearing capacity. Thus, sex-specific policies restricting
women from certain jobs based on childbearing capacity, such as those
banning fertile women from jobs with exposure to harmful chemicals,
are generally prohibited. An employer's concern about risks to a pregnant
employee or her fetus will rarely, if ever, justify such restrictions.
Sex-specific job restrictions can be justified only if
the employer can show that lack of childbearing capacity is a bona
fide occupational qualification (BFOQ), that is, reasonably necessary
to the normal operation of the business. An employer is also prohibited
from discriminating against an employee because she has stated that
she intends to become pregnant. Thus, demoting an employee with a
good performance record 2 weeks after she informed her manager that
she was trying to become pregnant would constitute evidence of pregnancy
related to infertility treatments implicate Title VII under limited
circumstances. Because surgical impregnation is intrinsically tied
to a woman's childbearing capacity, an inference of unlawful sex discrimination
may be raised if, for example, an employee is penalized for taking
time off from work to undergo such a procedure. In contrast, with
respect to the exclusion of infertility from employer-provided health
insurance, courts have generally held that exclusions of all infertility
coverage for all employees is gender neutral and does not violate
Title VII. Title VII may be implicated by exclusions of particular
treatments that apply only to one gender.
Past pregnancy.An employee or applicant may not be subjected
to discrimination because of a past pregnancy, childbirth, or related
medical condition. For example, an employer would violate
the PDA by terminating an employee shortly after she returns from
medically related pregnancy leave following the birth of her child
if the employee's pregnancy is the reason for the termination. Close
proximity between the employee's return to work and the employer's
decision to terminate her, coupled with an explanation for the termination
that is not believable (e.g., unsubstantiated performance problems
by an employee who has always been a good performer), would constitute
evidence of pregnancy discrimination.
An employer cannot refuse to hire a woman because of
her pregnancy-related condition as long as she is able to perform
the major functions of her job. In addition, an employer cannot refuse
to hire her because of its prejudices against pregnant workers or
the prejudices of coworkers, clients, or customers. An employer should
concentrate on the required training period, physical requirements,
and specific functions of the job--not on whether an applicant is
pregnant, has children, or is of childbearing age.
Federal law does not require employers to provide healthcare
insurance for employees. If insurance is offered, however, it must
cover expenses for pregnancy-related conditions on the same basis
as for other medical conditions. Insurance for expenses arising from
an abortion is not required except where the life of the mother would
be endangered if the fetus were carried to term, or where medical
complications have arisen from an abortion. If FMLA leave is being
used for pregnancy-related purposes, the FMLA requires employers to
continue to offer insurance coverage and to pay the employer's share
of the premium.
As with other fringe
benefits, employers who offer employees health insurance must include
coverage of pregnancy, childbirth, and related medical conditions.
Terms and conditions
of coverage. Employers that have health insurance benefit
plans must apply the same terms and conditions for pregnancy-related
costs as for medical costs unrelated to pregnancy. For example, if
the plan covers preexisting conditions, it must cover the costs of
an insured employee's preexisting pregnancy. If the plan covers a
particular percentage of the medical costs incurred for non-pregnancy-related
conditions, it must cover the same percentage of recoverable costs
for pregnancy-related conditions. If the medical benefits are subject
to a deductible, pregnancy-related medical cost, the employee may
not be subject to a higher deductible.
for services. The employer’s health insurance plan may
not impose limitations applicable only to pregnancy-related medical
expenses for any services, such as doctor's office visits, laboratory
tests, x-rays, ambulance service, or recovery room use. The plan must
cover prescription contraceptives on the same basis as prescription
drugs, devices, and services that are used to prevent the occurrence
of medical conditions other than pregnancy.
In Burwell v.
Hobby Lobby Stores, Inc.
2751 (2014), the U.S. Supreme Court ruled that the Patient Protection and Affordable Care Act's
mandate violated the Religious Freedom Restoration Act (RFRA)
as applied to closely held for-profit corporations whose owners had
religious objections to providing certain types of contraceptives.
Please see the
national Healthcare Insurance.
In the area of fringe benefits, employees with pregnancy-related
disabilities must be treated the same as other temporarily disabled
employees for accrual and crediting of seniority, vacation calculation,
pay increases, and temporary disability benefits. In other words,
a woman unable to work for pregnancy-related reasons is entitled to
sick leave and other benefits on the same basis as employees who are
temporarily disabled for other medical reasons and unable to work.
Employers must hold open a job for a pregnancy-related
absence the same length of time jobs are held open for employees on
sick or disability leave. For example, if an employer provides disability
pay to other disabled employees when they are on leave and allows
them to return to the same or a similar position, such benefits and
reinstatement rights must be given to pregnant employees.
Please see the
national Disability Insurance
No marriage requirements allowed. Pregnancy-related benefits cannot be limited to married employees.
In an all-female workforce or job classification, benefits must be
provided for pregnancy-related conditions if benefits are provided
for other medical conditions.