The Chicago Bar Association

Pregnancy Discrimination

The Pregnancy Discrimination Act (“PDA”) amendment to Title VII provides that an employer may not discriminate against an employee as a result of pregnancy, childbirth and related conditions, and it is unlawful for an employer to differentiate between pregnancy-related and other disabilities.

The critical factor to be looked at here is treatment. For example, employers may not discharge or refuse to hire or promote women because they are pregnant. Employers also may not establish mandatory maternity leave that is unrelated to the employee’s ability to work. Likewise, an employer may not prohibit an employee from returning back to work for a predetermined period of time following childbirth.

With regards to requests for light-duty assignments, Courts have held that an employer may not maintain a policy that gives less favorable treatment to pregnant employees as compared to employees who sustained job-related injuries and who are similarly situated in their ability to work. In this regard, more specifically, the US Supreme Court in Young v. United Parcel Service, 135 S.Ct. 1338 (2015) recently held that:

  • an Employee in a pregnancy discrimination action can create a genuine issue of material fact as to whether an Employer’s policies impose a significant burden on pregnant employees by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. The US Supreme Court’s Young Decision specifically abrogated the following cases, amongst others: Urbano v. Continental Airlines, Inc., 138 F.3d 204, Reeves v. Swift Transp. Co., 446 F.3d 637, Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, and Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309.

The EEOC has also recently issued a new guidance on pregnancy discrimination in the workplace that requires “pregnant employees to be treated the same as non-pregnant employees”, and requires accommodations to be provided to pregnant employees that is of equal accommodations provided to non-pregnant employees (regardless of whether the pregnant employees are disabled under the Americans with Disabilities Act. For example, under the PDA even if a pregnant employee is not considered disabled under the ADA such employee may still be entitled to reasonable accommodations if they merely have job restrictions that are similar to an individual with a disability who the employer has permitted to work under such restriction, such as light duty work. According to the EEOC, pregnant employees are to receive such accommodations even if the employer has narrowly drafted its policies to afford such accommodations only for employees hurt on the job.

Additionally, one of the most powerful protections of the Pregnancy Discrimination Act is that when a woman takes maternity leave her job must be held open on the same basis that jobs are held open for employees on sick leave or disability leave for reasons unrelated to pregnancy.

It should also be noted that the Family & Medical Leave Act of 1993 (“FMLA”) is also a statute that protects employees regarding pregnancy, childbirth and related conditions.

Do you believe that your employer negatively took into account your pregnancy in the terms and conditions, or the termination, of your employment? Were you an employee in good standing before you became pregnant, and then once you announced you were pregnant your employer’s attitude towards you suddenly changed and your employer started going out of his/ her way looking for things that were allegedly wrong with your performance? Do you need reasonable accommodations for your pregnancy, and your Employer is delaying, resisting, or refusing to provide you with this? Was your employment terminated before you returned from maternity leave and/or were you terminated on the day you returned from maternity leave?

If you believe that you may have been subjected to discrimination/ harassment due to your having been pregnant, or if your employer is refusing/ resisting providing you with reasonable accommodations for your pregnancy, or if you are concerned that you may in the future be subjected to discrimination due to your pregnancy, then call me to briefly discuss if it makes sense for you to come in for an appointment to my Chicago loop office to further discuss your employment situation.

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