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Avoiding Pregnancy Discrimination

Small business owners have many things to keep in mind these days. Treating all workers fairly and equitably is always foremost. State and federal laws demand employers to give equal protection to all their employees, including pregnant workers.

These laws apply to all aspects of employment. Most laws affect businesses with more than 50 employees. But the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) apply to companies with more than 15 employees. The U.S. Equal Employment Opportunity Commission (EEOC) enforces these rules in each state.

Visit FindLaw's Employment Law: Leave Law Section for detailed information on employee leave and time off.

Pregnancy Discrimination in Hiring

Employers can't discriminate against potential employees because of pregnancy or pregnancy-related conditions. They must treat pregnant applicants like workers with any other condition or disability. They qualify if the applicant can perform the "essential functions" of the position with or without reasonable accommodations.

Employers may not pre-emptively refuse to hire pregnant women because they have:

  • Biases against pregnancy
  • Real or imagined fears for the mother or fetus
  • Concerns about disruptions in the work environment

The EEOC states, "Concerns about risks to a pregnant employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman of childbearing capacity."

If you have concerns about possible risks to a pregnant employee, such as chemical exposure, discuss hiring questions with an employment law attorney.

Pregnancy and Maternity Leave

Although pregnancy is not a disability under the ADA, some related medical conditions are. Pregnancy-related high blood pressure, known as "preeclampsia," and gestational diabetes, are severe health conditions caused by pregnancy.

The ADA defines a disability as a condition severely limiting one or more daily activities. The ADA usually requires a showing of "permanent or long-term" impairment. EEOC guidelines court cases have held that six months is enough to meet the "long-term" requirement.

Suppose a pregnant person's doctor places them on light duty or other restrictions for the duration of their pregnancy. In that case, the employer must treat them like any temporarily disabled employee. Options may include:

  • Modified or unpaid leave
  • Paid leave, including sick leave
  • Remote or hybrid worktime
  • Disability leave

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) applies to businesses with more than 50 employees. Some states, such as California, have similar laws that affect businesses as small as five employees.

The FMLA and other laws require covered employers to grant eligible employees up to 12 weeks of unpaid leave for medical purposes, including childbirth.

Like the PDA, the FMLA requires employers to hold open jobs or to provide workers with an equivalent position after their leave. You can't fire workers on pregnancy leave unless you already planned to fire them. Employers cannot require workers to return to work immediately after the birth of a child or stay on leave for any set period.

Health Insurance

Health insurance benefits must cover pregnancy-related conditions and post-natal care on the same basis as costs for all other medical conditions. Any reimbursement for pregnancy-related costs must happen on the same basis as other costs and charges.

Abortion and Insurance

An unintended outcome of Dobbs v. Jackson Women's Health was its effect on employer-provided health insurance. Regardless of your feelings on abortion or whether you ever considered it, insurance companies must follow the laws of the state where they issued the policy. Policies covered by ERISA may have a partial exemption from state civil laws.

If you have questions or concerns, discuss them with an employment law attorney and your insurance carrier.

Other Pregnancy-Related Issues

Pregnancy affects everyone in the pregnant person's life. Expectant fathers do much more today than wait until after the birth and pass out cigars. Women may need to return to work while their infant is still nursing. The PDA and EEOC guidance clarify that the PDA applies to all these issues.


One of the most contentious issues facing new mothers in the workplace has been breastfeeding and expressing breast milk. Nursing mothers do not stop lactation simply because they must return to work.

The PDA and the Fair Labor Standards Act (FLSA), among other federal and state laws, have established that:

  • Women have a right to a private place to express breast milk at work.
  • Women have a right to reasonable break time as needed to do so.
  • The area must be comfortable and discreet. A bathroom is not enough.

The U.S. Department of Labor has issued specific guidelines for FLSA protections for expressing breast milk at work.

Parental Leave

Female employees are not the only ones affected by pregnancy discrimination. Male employees seeking time to bond with new infants or to give their partners a much-needed break have been victims, too. The FMLA does not distinguish between mothers and fathers. Any parent wanting time to bond with an infant or child may request unpaid leave.

Hiring an Employment Attorney

Employment laws are always changing. Pregnancy-related laws are constantly in flux. To ensure you are current on the status of state and local laws, contact a local employment attorney to discuss your hiring needs.

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