Employment Law & Litigation

Employment Law & Litigation


By: Meredith McDonald, Esq.

In connection with the White House United State of Women Summit, on June 14, 2016, the Equal Employment Opportunity Commission  (“EEOC”)  issued  a resource document entitled “Legal Rights for Pregnant Workers under Federal Law.”1  This document is directed towards the pregnant worker, and simply and specifically addresses pregnancy discrimination and pregnant workers’  rights  under  the  Pregnancy  Discrimination Act of 1978 (“PDA”) and the ADA Amendments Act of 2008 (“ADAAA”).


Of course, laws precluding pregnancy discrimination have been in place for many years.  In 1978, Title VII of the Civil Rights Act of 1964 was amended to include the Pregnancy Discrimination Act (“PDA”).2   The ADA Amendments Act of 2008 (“ADAAA”) may also protect pregnant workers who may have impairments related to their pregnancies that qualify as disabilities under the ADA. Pregnant workers may also have rights under the Family Medical and Leave Act (“FMLA”).


3. Since the enactment of the PDA and the ADAAA, the EEOC has produced numerous publications to guide the public in the application of these laws. The most comprehensive of those is the EEOC’s 2015 “Enforcement Guidance: Pregnancy Discrimination and Related Issues,” a detailed document providing a comprehensive overview of the federal statutes and case law related to pregnancy discrimination.

4. “Legal Rights for Pregnant Workers under Federal Law” does not state new EEOC policy regarding pregnancy discrimination, and does not provide more specific guidance than the EEOC has previously provided. Rather, it lays out pertinent information to lay persons in a direct and straightforward format.  “We realize that there are many people who simply need to get basic information, as opposed to the comprehensive legal analyses set forth in the Enforcement Guidance publications,” said Peggy Mastroianni, Legal Counsel for the EEOC. According to Ms. Mastroianni, the EEOC’s issuance of “Legal Rights for Pregnant Workers under Federal Law” is part of the EEOC’s current large-scale effort to provide information in a variety of formats to the public.


“Legal Rights for Pregnant Workers under Federal Law” is directed towards the pregnant worker,  and sets forth information in a basic, question-and-answer format.


5. It addresses what rights women who are pregnant or who might become pregnant have in the workplace. For example, the publication advises women that, “in general, … you cannot be fired, rejected for a job or promotion, given lesser assignments, or forced to take leave” because “you are pregnant; you were pregnant; you could become pregnant, or intend to become pregnant; you have a medical condition that is related to pregnancy; or you had an abortion, or are considering  having  an  abortion.”


6. The publication advises that although an employer “does not have to keep you in a job that you are unable to do or in which you would pose a significant safety risk for others in the workplace,” an employer “cannot remove you from your job or place you on leave because it believes that work would pose a risk to you or your pregnancy.”


7. The publication further addresses what a pregnant woman can do if she is having difficulty performing her job because of pregnancy and medical conditions related to pregnancy.   As an example, the publication advises that  a  pregnant  employee may  be  able  to  obtain  an


1  https://www.eeoc.gov/eeoc/publications/pregnant_workers.cfm. On this same date, the EEOC also

released other resource documents for the Summit, entitled “Equal Pay and the EEOC’s Proposal to

Collect Pay Data,” https://www.eeoc.gov/eeoc/newsroom/wysk/pay_data.cfm, and “Helping Patients Deal

with Pregnancy-Related Conditions and Restrictions at Work,”


2 42 U.S.C.A. § 2000e(k). The PDA added new language to the definitions in Title VII, providing, in

part, “[t]he 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 benefit programs, as other

persons 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….”

3 Although the EEOC mentions the FMLA in its publications, the EEOC is not charged with enforcing

the FMLA.

4  https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm. The 2015 Enforcement Guidance is

revised from the initial Enforcement Guidance published on July 14, 2014. The

initial 2014 Enforcement Guidance was amended in 2015, in response to the U.S. Supreme Court’s

decision in Young v. United Parcel Service, 135 S.Ct. 1338 (2015).

5  The EEOC has multiple other publications regarding pregnancy discrimination, including one

geared towards employers entitled “Fact Sheet for Small Businesses: Pregnancy

Discrimination,” https://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm

6  “Legal Rights for Pregnant Workers under Federal Law,” p. 1.

7  Id.


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