Introduction

Over the past several decades, employers and courts have struggled to understand the protections to which pregnant employees are entitled under the law. In an effort to clarify these protections, Congress enacted the Pregnancy Discrimination Act (PDA) in 1978. The effect of the PDA was not to create a separate cause of action, but rather to embrace pregnancy as one of the protected classes under Title VII.1 Unfortunately, despite the enactment of the PDA, questions still remain for employers regarding the scope and nature of the protections afforded to pregnant employees.

In particular, employers often struggle to understand the unique analytical wrinkles associated with maternity leave. Common questions from employers include:

  • Are employers always required to provide maternity leave to pregnant employees?
  • How much leave must an employer provide to pregnant employees?
  • Are employers required to provide pregnant employees with paid leave?  
  • Can an employer require a pregnant employee to take maternity leave?
  • Can an employer ever terminate an employee who cannot work due to pregnancy?

In answering these questions, the first step is to determine whether the employer and the pregnant employee are covered by the Family Medical Leave Act (FMLA). The FMLA covers all public agencies, public and private elementary and secondary schools, and companies with 50 or more employees.2 These employers must provide eligible employees with up to 12 weeks of unpaid leave each year for the birth and care of the newborn child of an employee.3 Employees are only eligible for leave if they have worked for their employer for at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employees 50 or more employees within 75 miles.4

Once an employer determines that a pregnant employee is eligible under the FMLA, the employer must provide leave as required under the Act. When a pregnant employee is not eligible under the FMLA, however, the employer may have questions regarding its legal obligations. Addressed below are some of the common questions and pitfalls that arise when a pregnant employee is noteligible for leave under the FMLA.  

The law

The basic approach of Title VII to claims of pregnancy discrimination is that an employer must treat pregnancy-related conditions the same as any other temporary disability. The PDA amended Title VII to provide:

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefits programs, as other person not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise….5

Courts, including the Tenth Circuit, have interpreted the language added to Title VII by the PDA to require that employers grant leave and disability benefits to pregnant employees under the same conditions that those benefits would be granted to any other temporarily disabled workers. Thus, employers with policies affording sick leave and other benefits to temporarily-disabled employees must provide those same benefits to pregnant employees.6 On the other hand, employers that do not grant sick leave or other benefits to temporarily-disabled employees are notrequired by the PDA to grant such benefits to pregnant employees (who are not eligible under the FMLA).7

For example, in a 2014 case before the United States District Court for the District of New Mexico, Judge James O. Browning dismissed a woman's claim that her employer discriminated against her on the basis of pregnancy by terminating her for taking maternity leave.8 In that case, the pregnant employee (who was not eligible under the FMLA) informed her employer that she was pregnant and intended to take four weeks of maternity leave upon the birth of her child.9 The employer responded by telling the employee if she took time off, "she may not have a job when she returned from maternity leave."10 When it became clear the employee indeed intended to take the leave, the employer told her "to go ahead and collect unemployment."11In dismissing the former employee's pregnancy discrimination claim, Judge Browning explained that the employee had not pled any circumstances giving rise to an inference of discrimination based on pregnancy.  For example, the employee had not pled that her pregnancy resulted in any denigrating comments or any expressions of concern that she might be less-dedicated to her job after she had children.  Additionally, the employee had not pled that sick employees who took similar leaves of absence were welcomed back to their jobs.  Thus, because the plaintiff failed to allege any facts plausibly suggesting the employer terminated her for any reason other than her decision to take unauthorized maternity leave, Judge Browning dismissed her Title VII claim for failure to state a claim of pregnancy discrimination.12 (Note: although the Tenth Circuit has held that the burden of proving a pregnancy discrimination claim under the New Mexico Human Rights Act (NMHRA) is identical to the burden under the PDA,13 Judge Browning declined to exercise supplemental jurisdiction over the plaintiff's NMHRA pregnancy discrimination claim and remanded the claim to state court because all the federal claims had been dismissed.14)

In sum, the PDA does not prohibit all adverse employment action taken against pregnant employees. However, employers must provide the same benefits to pregnant employees that they would provide to temporarily-disabled employees. Employers should also take appropriate precautions to prevent employment disputes with pregnant employees regarding maternity leave and disability benefits.

Practice Tips

Although employment disputes arising under the PDA cannot always be avoided, employers may limit their exposure to liability and the cost and hassle of litigation through implementation of the following practices:

  • Have a clearly written policy governing sick leave and disability benefits for temporarily-disabled employees who are not eligible under the FMLA because such benefits must also be afforded to pregnant employees.
  • Ensure the policy governing sick leave and disability benefits for temporarily-disabled employees is strictly and consistently enforced because wavering from the policy may change the scope of benefits that must be afforded to pregnant employees and may lead to a claim of unequal treatment of similarly-situated employees.
  • Have a clearly written policy governing maternity leave and benefits for pregnant employees who are not eligible under the FMLA because even FMLA-covered employers may have employees who become pregnant before qualifying for FMLA leave.
  • Permit pregnant employees to have "light duty" assignments (or similar accommodations) to the same extent such accommodations are offered to other temporarily-disabled employees.
  • Never require a pregnant employee to take maternity leave because the EEOC and courts have found such an action to be a violation of Title VII.1
  • Distinguish between leave related to physical limitations imposed by pregnancy or childbirth (pregnancy-related leave) and leave for purposes of bonding with or providing care for child (parental leave) because parental leave must be afforded to similarly-situated men on the same terms.16

By following these practice tips, employers will be in a better position to prevent and defend against disputes arising under the PDA.

Conclusion

In sum, the PDA amended Title VII to require pregnant employees be treated the same as other temporarily-disabled employees. Although many pregnant employees may be entitled to maternity leave under the FMLA, all employers may face situations in which a pregnant employee is not eligible for FMLA leave. In those instances, employers should understand their obligations toward pregnant employees under the PDA. By understanding the law and following the guidelines set forth above, employers will be able to better prevent and defend against disputes arising under the PDA.