Employee Rights and Responsibilities book. Paper with "Rights of Pregnant Employees..." on it.

What are the Rights of Pregnant Employees?

07/27/2023
By Erika T. Minetti, MS

Pregnancy is a journey that comes with many questions. Some of these questions are simple ones of anticipation: What should I name my baby? What color will their eyes be? What will they look like? At the same time, more pressing questions arise from pregnancy’s physical demands, such as: “How much weight can I safely gain?” and “How might my body change through this whole process?” For pregnant workers, however, all such questions can take a back seat to the most salient question of all: “How does the law protect me from being discriminated against in the workplace?”

Since 1978, pregnant employees have been shielded against bias, thanks to passage of the Pregnancy Discrimination Act, but pregnancy is a complicated matter that may affect families not only from conception to birth, but also before a family member becomes pregnant, or after they give birth. So, anyone considering pregnancy should educate themselves about what their rights actually are in the workplace.Pregnant woman reading a piece of paper. US Equal Employment Opportunity Commission logo.

Earlier federal legislation offered some broad protections against discrimination. Congress enacted the Civil Rights Act in 1964 to prevent discrimination on the basis of race, color, religion, sex, and national origin, and Title VII of the act offered protection specifically in the workplace.  However, at that time, Congress did not consider discrimination on the basis of pregnancy to be an issue of concern, as became evident in the outcome of the 1976 case General Electric Company v. Gilbert. In this case, the Supreme Court ruled that pregnant employees weren’t covered by Title VII of the Civil Rights Act. This decision stirred controversy and eventually led two years later to passage of the Pregnancy Discrimination Act, an amendment to Title VII.  This was a big step forward in protecting pregnant employees from discrimination in their workplaces.

So, how does the amendment help pregnant employees? It forbids employers from excluding such employees in hiring and promotion decisions. In other words, the law protects employees from any decisions made by employers that discriminate against them on the basis of an actual or assumed pregnancy. That’s right! If your boss hears a rumor that you are pregnant and decides not to give you a raise that you would have received otherwise, Title VII very much applies.

To be fully protected by the law, employees assume responsibility for letting their employer know that they are pregnant. If an employer is unaware of the pregnancy, the employee will have a tougher time proving pregnancy-related discrimination. Ultimately, though, no one is required to report their pregnancy to their current or potential employer, regardless of the potential impact the pregnancy might have on their ability to fulfill some of their job duties. It’s a personal decision that allows for appropriate discretion but with an awareness that an employee who does not share their pregnant status may risk not getting full protection under the law.

Pregnant woman sitting in a meeting, her hand to her head.Title VII recognizes that pregnancy is a journey that starts before conception and has an impact on health even after giving birth. To reflect this, the law protects against discrimination related to previous or even to potential pregnancies.  Someone who was pregnant recently may have a variety of reasons for taking time off from work. Aside from needing parental leave to give birth and to adjust to caring for a new family member, the employee may also require time off to adequately recover before joining the workforce again, due to medical challenges that arose during pregnancy or while giving birth. Any discrimination by an employer timed close to an employee’s pregnancy may mean that a violation of Title VII is occurring. Title VII also offers protection to employees who wish to lactate and breastfeed during the workday.

Similarly, employers may not make inequitable decisions based on an employee’s potential to become pregnant, and doing so is also a violation of the Pregnancy Discrimination Act. This means that employers are not allowed to ask potential candidates whether or not they intend to become pregnant. If a candidate expresses their interest in becoming pregnant and then doesn’t receive an employment offer, they can rightfully accuse the employer of discrimination, based on their knowledge of the candidate’s declared intention. Individuals who need to take time off for infertility treatments also have protections, and employers must provide health insurance that covers contraception because federal law equates contraception medication with other covered, preventative drugs.

Laws intended to protect pregnant women are still improving, and last year President Joseph Biden signed the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023, and requires employers to provide reasonable accommodations to employees who are pregnant, just gave birth, or have medical conditions due to a recent pregnancy.  The language of this new law is more inclusive of transgender men and expands protections to make the work environment more suitable as people navigate their pregnancy. It’s important to note that the PWFA only applies to employers who have at least 15 employees, which means that pregnant employees in smaller workplace settings are not entitled to these protections.

The fact that the government is passing better laws is good news. However, the onus is still on you to understand what your rights are in your given workplace. If you plan to become pregnant, be sure to educate yourself about your rights and responsibilities, so that you can make an informed decision and avail yourself of legal protections.

References

  1. Protections Against Discrimination and Other Prohibited Practices
  2. U.S. Supreme Court, General Electric Co. v. Gilbert, 429 U.S. 125 (1976)
  3. What to Expect When You’re Expecting (and After the Birth of Your Child)…at Work
  4. Pregnancy Discrimination and Pregnancy-Related Disability Discrimination
  5. What you Should Know About the Pregnant Workers Fairness Act
  6. Expecting Bodies: The Pregnant Man and Transgender Exclusion from the Employment NonDiscrimination Act

 

Erika MinettiErika Minetti was born and raised in Milan, Italy and moved to Boston in 2015 to pursue a degree in Biochemistry and Molecular Biology at Boston University with a minor in music performance. She recently completed her MS in the Boston University Graduate Medical Sciences Program, and is currently doing research on vascular endothelial health.

 

This article was originally published in AWIS Magazine. Join AWIS to access the full issue of AWIS Magazine and more member benefits.