Pregnancy Discrimination

Pregnancy Discrimination

Pregnancy discrimination in employment can have a substantial impact on women affecting their livelihood as well as their health. There are federal, state, and local discrimination laws that protect women from adverse treatment. However, women also have rights under disability and family leave laws, which can provide much needed financial assistance and job protection during and after pregnancy. These laws have varying requirements. As a result, it is important for employers and employees to seek legal advice to understand their rights and obligations under these laws.

What is Pregnancy Discrimination?

Pregnancy discrimination laws prohibit the inferior treatment of employees based on their pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.  Illegal conduct can include:

  • Adverse treatment in hiring, firing, promotions, salary, benefits, and other terms and conditions of employment.
  • Failing to provide a reasonable accommodation when required.
  • Offensive physical contact.
  • Pregnancy based harassment.

When Is a Pregnant Employee Entitled to a Reasonable Accommodation?

Generally, employers have an obligation to provide a reasonable accommodation to women with a pregnancy or childbirth related condition. Examples include providing breaks, adjusting work schedules, changing job duties, granting transfers away from hazardous duties, and providing leave for related medical needs.

Legal Standards

While federal, state, and local laws require reasonable accommodations for pregnancy-related conditions, the standards vary. Federal law provides that employers must treat pregnant employees the same as non-pregnant, temporarily disabled employees. As a result, the employer may have to provide leave, benefits, or accommodations to pregnant employees if it does so for other temporarily disabled employees. On the other hand, if the employer does not offer leave, benefits, or accommodations to any temporarily disabled employees, then there may not be a claim of pregnancy discrimination under federal law. However, the employee may have rights under other laws as discussed in the next section.

New York State law states that employers must provide reasonable accommodations to women with a “pregnancy-related condition,” which is “a medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”

In New York City, employers must reasonably accommodate “the needs of an employee for her pregnancy, childbirth or related medical condition,” without regard to whether the employee’s limitation qualifies as a disability.

Employer Defenses

Employers have two defenses to a request for a reasonable accommodation. First is if the accommodation would cause an undue hardship. This may include changes that are too expensive, disruptive, dangerous, or impossible to implement. Enforcement agencies and the courts will consider factors such as the cost and financial resources of the employer, the nature of the business, and the employer’s size.

The second defense is if the employee cannot perform the essential functions of the job even with the reasonable accommodation. The burden of proof is on the employer.

What Laws Prohibit Pregnancy Discrimination?

Pregnant women are entitled to legal protection under various federal, state, and local laws. These prohibit discrimination, as well as grant women disability and family leave benefits.

Federal Law

Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act protect against workplace discrimination on the basis of pregnancy, childbirth, and related medical conditions.  Such discrimination is considered to be a form of sex discrimination.  These laws apply to private employers with at least 15 employees, labor unions, and employment agencies.

The Family Medical Leave Act (FMLA) requires employers to provide qualifying employees with up to twelve (12) weeks of unpaid leave per year for family or personal medical reasons.  Job protection is also guaranteed as employees also have the right to return from leave to the same or similar position and benefits.  In the context of pregnancy, the FMLA enables employees to take unpaid leave for the birth and care of the employee’s newborn child.  In addition, pregnancy also qualifies as a serious health condition permitting leave, even if the employee can still work and has no medical complications.

The Americans with Disability Act (ADA) protects individuals with medical conditions from employment discrimination.  This includes those with pregnancy-related conditions which substantially limit an individual’s ability to lift, stand or bend.

New York Law

The New York State Human Rights Law prohibits all employers regardless of size from discriminating against employees on the basis of pregnancy. It also applies to independent contractors. Employers also must provide reasonable accommodations as discussed above.

Under New York State’s paid family leave law, most employees are eligible for paid family leave to bond with a newborn or adoptive child. In addition, employees are guaranteed the same or comparable job after leave ends.

The state also offers short-term disability benefits to pregnant and postpartum women. Employees are given time off and paid partial wages to deal with pregnancy complications or recovery from childbirth.

New York City

The New York City Human Rights Law protects pregnant employees from discrimination. It applies to employers with four or more employees and independent contractors. As discussed above, pregnant women are entitled to reasonable accommodations.

How Can Employees Enforce Their Rights?

Typically, the first step for employees is to file a complaint with the employer in accordance with the employer’s reporting procedures. If that does not resolve the matter, then employees have several avenues to enforce their rights. Depending on the law involved, employees may file a complaint with a federal, state or city agency, or the courts.

Federal Law

Under federal discrimination law, employee claims can be filed with the Equal Employment Opportunity Commission (EEOC).  Discrimination claims must be first filed with the EEOC before a victim can go to court.  If the EEOC does not resolve the claim within 180 days, the employee can obtain a “Notice of Right to Sue” from the EEOC and then bring an action in federal or state court within 90 days of the date the notice was received.

For claims under the Family Medical Leave Act, employees can file a complaint with the U.S. Department of Labor’s Wage and Hour Division.  However, this is not a requirement.  They may also file a lawsuit in federal court to enforce their rights.

New York State Law

Employees can file a pregnancy discrimination complaint with the New York State Division of Human Rights (NYSDHR) or bring a lawsuit in the New York state courts. If an employee goes to the NYSDHR, the agency will review the complaint and then decide whether to send it to an administrative law judge for a final order. Employees can appeal these orders to state court, if necessary. The complaint must be filed with the NYSDHR within one year of the last alleged act of discrimination. Where an employee chooses to go straight to court, the suit must be brought within three years of the last act of discrimination.

New York City Law

In New York City, complaints may be filed with the New York City Human Rights Commission’s (NYSHRC) Law Enforcement Bureau or the employee can go to court. The same deadlines for filing with the agency and court apply as under New York State law.

How Can Employers Avoid or Minimize Their Risks of Liability?

The best protection from potential liability comes from being proactive.  Employers should draft and institute written workplace anti-discrimination policies.  These should be included in an employee handbook along with an explanation of how employees can report discrimination and the company’s investigation procedures.  The handbook should be given to all employees.  In addition, supervisors and hiring staff should be given training on how to avoid and handle discriminatory conduct.

In the event of a complaint, employers should carefully document the allegations.  An attorney should be consulted to advise regarding the investigation and what actions should be taken by the employer.


The different types of legal protections provided to pregnant employees can be confusing to navigate.  Both parties should seek legal counsel to ensure their rights are protected and any claims that do arise are handled appropriately.


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