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In the wake of the Dobbs v. Jackson Women’s Health Organization ruling, that abortion is not a protected right and all the anti-abortion laws being passed, there is bound to be a surge in pregnancy accommodation requests, as workers will be forced to carry through with high-risk pregnancies.  

No one should be forced to choose between a healthy pregnancy and their job. Forty years ago, Congress outlawed pregnancy discrimination when it passed the Federal Pregnancy Discrimination Act (PDA). Despite the law, employers still routinely deny pregnant workers’ accommodation requests.  

How Common Is Pregnancy Discrimination In The Workplace? 

The Equal Employment Opportunity Commission (EEOC) data shows that from 2010-2021 roughly 39,000 pregnancy discrimination charges were filed with the EEOC. That number doubles when combined with charges filed by the state and local Fair Employment Practice Agencies.¹ Those numbers only reflect when a pregnant worker actually files a complaint. Unfortunately, not all pregnant people know their rights as a pregnant worker or fear retaliation if they speak up. 

The Bipartisan Policy Center and Morning Consult conducted a survey on the prevalence of pregnancy discrimination in the workplace. The key results of the survey showed:² 

• Nearly 1 in 4 (23%) mothers have considered leaving their jobs due to a lack of reasonable accommodations or fear of discrimination during a pregnancy. 
• 1 in 5 mothers (20%) say they have experienced pregnancy discrimination in the workplace. 
  

Research Shows Pregnancy Discrimination Has A Negative Impact On The Mother’s and Baby’s Health
 
The Journal of Applied Psychology published a landmark study from Baylor University where researchers surveyed 252 pregnant employees. The results showed that pregnancy discrimination has a negative impact on the mother’s and baby’s health. Pregnancy discrimination was linked to increased levels of postpartum depressive symptoms for mothers and lower birth weights, lower gestational ages, and increased numbers of doctor visits for babies.³  

Pregnancy Discrimination And The Motherhood Penalty Create A Lasting Economic Disadvantage  

Pregnancy discrimination and the motherhood penalty leads to an economic disadvantage and gender wage gap for women. Studies show the discriminatory treatment women face while pregnant and following birth includes lower starting salaries, lower likelihood of hiring and promotion, and lower perceived competence and commitment. Known as the “motherhood penalty” because men do not face the same discrimination when they become fathers.⁴   

Real Pregnancy Discrimination Examples 

A sad case that gained national attention was when Kristie Small, acting chief of staff to Congressman Cuellar, filed a federal lawsuit against Cuellar after being terminated during her third trimester after requesting leave. Kristie delivered her baby at 30 weeks; it was a stillbirth. The lawsuit, which settled out of court, argued Cuellar’s firing of Small constituted both sex and pregnancy discrimination.⁵  

In August 2022, the U.S. Court of Appeals for the Seventh Circuit issued a devastating decision holding that Walmart’s policy of refusing to accommodate pregnant workers in need of light duty does not violate current law. In the case, the Equal Employment Opportunity Commission (EEOC) argued that Walmart’s temporary light duty policy, which provided light duty to workers injured on the job but not to pregnant workers, violated the federal Pregnancy Discrimination Act (PDA). Walmart’s policy forced pregnant workers to lift heavy objects, at risk to their health, or go on unpaid leave, at risk to their ability to put food on the table. One employee, who had kept working after being denied light duty because she needed her paycheck, began to bleed, as the fetal heart rate dropped.⁶  

Pregnancy discrimination is not just about the loss of income. Pregnancy discrimination is about the loss of dignity and the burden of shame pregnant women are forced to carry. An Applebee’s employee was left in tears after her manager allegedly made fat shaming comments on her pregnant belly. TikToker Maria Pantoja shared the interaction in a video that now has over 500,000 views. “When you are 36 weeks pregnant and your manager tells you, ‘What are you having, three kids?’” she filmed herself saying in the video.  

Transgendered People Can Also Experience Pregnancy Discrimination   

Unfortunately, transgendered pregnant people can also experience pregnancy discrimination on many levels. In 2020, a transgender man filed a lawsuit against Amazon claiming he was harassed based on gender and pregnancy. He claims he was denied a promotion after he told his boss he was pregnant. The lawsuit alleged pregnancy discrimination, failure to accommodate and workplace retaliation. In 2019, Amazon settled out of court with a transgender woman and her husband, who claimed they suffered “cruel and persistent” harassment and threats of violence while working at an Amazon facility in Kentucky. Amazon has at least seven other cases of pregnancy discrimination.⁷  

What Does The Pregnant Workers Fairness Act Do For Employees?

The Pregnant Workers Fairness Act (PWFA) bill, H.R. 1065 prohibits; employers for discriminating against pregnant employees or failure to provide reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. It strengthens existing federal protections against pregnancy discrimination in the workplace.

Specifically, the PWFA declares that it is an unlawful employment practice to: 

• Fail to make reasonable accommodations to known limitations unless the accommodation would impose an undue hardship on an employer’s business operation; 
• Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process; 

• Deny employment opportunities based on the employer’s need to provide reasonable accommodations to a qualified employee; 
• Require employees to take paid or unpaid leave if another reasonable accommodation can be provided; or 
• Take adverse actions against a qualified employee requesting or using reasonable accommodations. 

The Pregnant Workers Fairness Act Also Hopes to Close Loopholes Surrounding Breastfeeding  

The PUMP Act for Nursing Mothers would have built on an existing law that requires employers to provide reasonable break time and a private, non-bathroom space for breastfeeding employees to pump breastmilk by clarifying employers’ obligations under the law. However, the bill, which would have expanded breastfeeding protections for nine million nursing moms, was not passed by the Senate. 

Fortunately, the Pregnant Workers Fairness Act also hopes to clarify the law and close loopholes surrounding breastfeeding. This includes time and space for people to pump at work.⁹  

In California, pregnant women are protected by provisions in several statutes: 

The Americans with Disabilities Act (ADA) 

Fair Employment and Housing Act (FEHA) 

Pregnancy Disability Leave (PDL) 

California Family Rights Act (CFRA) 

The California Family Rights Act (CFRA) provides eligible employees with up to 12 weeks of unpaid, job-protected leave to care for their own serious health condition or a family member with a serious health condition, or to bond with a new child. Recent legislation, effective January 1, 2021, expands CFRA in several major respects. In addition, California law requires covered employers to provide employees disabled by pregnancy, childbirth, or a related medical condition with unpaid, job-protected leave (PDL) and/or accommodations.¹⁰  

At Haeggquist and Eck, LLP we believe pregnant people should be treated fairly and respectfully. If you have been denied accommodations, experienced discrimination or retaliation, we will fight for you. If you are not sure, we are happy to answer your questions. Call Haeggquist & Eck, LLP for free and confidential consultation with no obligation.  

Sources: 

1. Equal Employment Opportunity Commission (EEOC) 

2. Bipartisan Policy Center 

3. Forbes* 

4. Gender Action Portal – Harvard Kennedy School* 

5. AP News 

6. A Better Balance (ABB) 

7. NBC News 

8. Congress.gov 

9. Market Watch 

10. Civil Rights Department of California 

*References: 

3) Hackney, K. J. et, al (2020). Examining the effects of perceived pregnancy discrimination on mother and baby health. Journal of Applied Psychology. DOI: 10.1037/apl0000788 

4) Correll, S. J., Benard, S., & Paik, I. (2007). Getting a Job: Is There a Motherhood Penalty? 1. American journal of sociology, 112(5), 1297-1339. 

What Is The PUMP Act?

The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act is an amendment to the Fair Labor Standards Act. It was passed to close some of the loopholes in the Break Time for Nursing Mothers Act effective in 2010 as part of the Affordable Care Act. The PUMP Act expands the rights and protections of lactating employees in the workplace and will further promote women’s economic security by affording nearly millions of workers the break time and private space they need to pump during the workday. The PUMP Act expanded to include nearly 9 million more workers, including teachers, registered nurses, farmworkers, and many others who were not previously included.

What Employee Rights Were Expanded By The PUMP Act?

Under the Break Time for Nursing Mothers law, as updated by the PUMP Act, employers of all sizes are required to provide:

• Break time – Employees must be provided with sufficient break time to pump for up to a year after childbirth. The act states that the frequency and duration of breaks will vary depending on factors related to the nursing employee and child.
• Private space – Employees must be provided with a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public to express breast milk. The space must have a lock or sign on the door to establish privacy.
• Functional space – Employees must have a place to sit while pumping and a flat surface on which to place their pump.
• Compensation – While pumping, employees must either be completely relieved of work duties or paid for their break time.

What If My Employer Harasses Me For Pumping At Work?

The PUMP Act prohibits retaliation, harassment, intimidation, or taking adverse action against any employee who inquires about their rights. 

What Can I Do If My Employer Doesn’t Allow Me To Pump At Work?

The PUMP Act makes it possible for an employee to file a lawsuit against an employer that violates the law. 

Does The Pump Act Cover Employees Who Work From Home?

Employees who work from home, or “telework,” are covered under the Pump Act. Their benefits are the same as if they were working on-site.

Are All Employers Required To Comply With The PUMP Act?

The PUMP Act protects workers nationwide with some exceptions. Employers with 50 or fewer employees are exempt from providing accommodations ONLY if they can prove complying with the law would cause an “undue hardship” to their business. That standard is difficult to meet and extremely rare so employees should consult with an employment attorney for help determining their rights. 

Special rules apply to certain rail carriers, motorcoach, and airline flight crew. It is always best to consult with an attorney specializing in representing employees to determine your rights. 

Employees may have additional rights based on state and local laws that provide additional protections which remain in effect and are not changed by the PUMP Act.

Under California law, every employer is required to provide a reasonable amount of time to accommodate an employee desiring to express breast milk for the employee’s infant child. 

California law prohibits discrimination and harassment on the basis of breastfeeding. 

California Law Also Requires Employers To Provide Reasonable Accommodations

Employers in California are legally required to provide reasonable accommodations for employees with a condition related to pregnancy or childbirth including lactation accommodation.  

How Do I Request An Accommodation For Expressing Breast Milk?

Employers in California must have a stated lactation policy that includes:

• A statement affirming the employee’s right to request accommodation for lactation.
• Information about how the employee can request an accommodation.
• The employer’s obligation to respond to the request for lactation accommodation.
• A statement that affirms the employee’s right to file a complaint about any violation of the law. 

Examples of reasonable and flexible accommodations for the nursing mother include but are not limited to: 

• Flexible scheduling.

• Temporary job restructuring.
• Reducing physical demands of job duties.
• Ability to temporarily transfer position.
• A modified work schedule.

Do Employers Have To Provide A Space To Pump Even If They Don’t Have Any Nursing Employees?

The statute requires employers to provide a space for a nursing employee “each time such employee has a need to express the milk.” If there is no employee with a need to express breast milk, then the employer would not have an obligation to provide a space. It is a best practice for employers to consider where they will make space available when it is needed.

Can Employers Require Employees To Pump In A Bathroom If It Is The Only Space Available At Work?

No. The statute specifically states that the space provided for employees to express breast milk cannot be a bathroom.

Haeggquist & Eck stands up for pregnant and breastfeeding employees who have been discriminated against, harassed in the workplace, or denied reasonable accommodations. 

If you feel you have been discriminated against or harassed based on your pregnancy or lactation status or if your employer has failed to provide accommodations for you to pump at work, give us a call for a free, no-obligation case evaluation. 

Sources

U.S. Department of Labor

Bajo la Ley de derechos de la familia de California, un empleador con cinco o más empleados debe proporcionar a los empleados elegibles que cumplan con los requisitos específicos hasta un total de 12 semanas laborales en cualquier período de 12 meses para cuidar a un familiar o tomar una ausencia médica.  

California ha ampliado la definición de familia para incluir a aquellos parientes que no son de sangre. Esto permite que el empleado tome tiempo de ausencia bajo la Ley de Derechos de la Familia de California para una “persona designada” que el empleado haya identificado. Esta persona puede ser cualquier individuo que elija el empleado. Esta ley entrará en efecto en enero de 2023. 

Esta ley fue aprobada pensando en los miembros de las comunidades latinas , otras comunidades de inmigrantes, y comunidades marginadas. California entiende que los hogares de inmigrantes típicamente son hogares multigeneracionales que crean una fuerte relación con aquellos que no son solo miembros de la familia inmediata. Esto permite que los empleados tengan la capacidad de tomar un tiempo de ausencia para cuidar a sus familiares o ellos que el empleado elija como su familia.  

Para averiguar si es elegible para tomar tiempo de ausencia para cuidar a un familiar elegido, comuníquese con nuestra oficina.