Trial Magazine

Too many workers get held back in their job during and after pregnancy. Bias against mothers comes from a workplace culture that often favors unencumbered workers.¹ However, when a decision or a series of decisions made by management negatively impacts an employee’s job after they announce their pregnancy, this constitutes pregnancy discrimination. Discrimination also may occur if non-pregnant workers are treated better or if management makes insensitive comments about pregnancy, maternity leave, or postpartum conditions.

Under the Pregnancy Discrimination Act, women affected by pregnancy, childbirth, or related medical conditions must “be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”² And the Pregnant Workers Fairness Act (PWFA), which went into effect in June 2023, expanded protections, requiring that certain employers provide “reasonable accommodations” for conditions related to pregnancy unless the accommodation would cause an “undue hardship.”³ The PWFA applies to all employers with 15 or more employees, including government employers.⁴

The pregnancy and postpartum windows are extremely vulnerable times for most women. Their tolerance for stress is often lower, while their need for income and job security will be higher than ever. Your client will feel the need to protect her pregnancy and baby from the perils and stressors of the job yet may not always be able to do so. As counsel, we must remember we are advocating not just for our client but, by extension, for her baby too.

Here are some ways to help protect pregnant workers during the interview process, guide workers in announcing their pregnancies, support them in accessing appropriate accommodations, and address discrimination if it occurs. It’s also important to understand what protections are available for workers going through the arduous in vitro fertilization (IVF) process. While these tips are aimed primarily at countering pregnancy discrimination early, it’s also key to know when to file a complaint if necessary and how to draft it.

Protecting Job Applicants

It’s illegal to deny an applicant a job on account of pregnancy or related conditions (including lactation).⁵ And job candidates have no affirmative duty to disclose their pregnancies during the interview process. But still, pregnancy discrimination during the hiring process happens.

Claims of pregnancy discrimination during the interview process are tough to prove—it’s rare that an employer will name a candidate’s pregnancy as the reason for rejection. If they do, a pregnancy discrimination case is easy to build.⁶ Adverse action taken on the basis of the candidate’s pregnancy is likely evidence of and grounds for a pregnancy discrimination lawsuit.⁷

But without clear evidence that pregnancy was the motivating factor, you will have to prove that every applicant in the running was less qualified than your client or that a potential candidate was deterred from applying because of the discriminatory atmosphere.⁸ For this reason, I typically advise clients to wait until they have received an offer before disclosing their pregnancy and due date. Pregnancy discrimination is extremely hard to prove if the job offer is withdrawn during the interview process.

However, it’s also crucial to advise clients on the right strategic balance between discretion and transparency. The longer they wait to share their news, the more frustrated the new employer may be. This can, and often does, lead to retaliation against pregnant workers down the line. But a company’s or individual’s frustration with a lack of transparency about a job candidate’s pregnancy does not qualify as an affirmative defense to pregnancy discrimination. Such a defense does not exist in the law.

If an interviewer asks my client if she is pregnant, I advise my client to be clear in her discomfort with the question. I suggest clients respond as follows: “I’m surprised by this question. I understood that those types of questions were not appropriate during a job interview.” While asking candidates if they are pregnant or to disclose their due date is not per se illegal under federal law, such a question can be evidence of discrimination if the candidate is not hired. An attorney could draw a nexus between the question and the decision not to hire and argue that the decision not to hire was motivated by the pregnancy. At the state level, however, the legality of such a question alone varies. In California, for example, asking a job candidate whether she is pregnant is unlawful.⁹ Investigate your state’s laws before advising your client.

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As soon as a worker announces her pregnancy in the workplace, she becomes a member of a protected class.

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Protecting Employees

For currently employed workers, the considerations are different. As soon as a worker announces her pregnancy in the workplace, she becomes a member of a protected class.¹⁰ The worker needs to be explicit that she is pregnant or that she is experiencing pregnancy-related symptoms, such as morning sickness.

A mistake some women make is merely indicating that they are sick or nauseated, which is not protected. Before she announces the pregnancy, even if she is already pregnant, a worker is not part of this class and is not afforded protections as the employer is not on notice that she is pregnant. Only if the employer knows about the pregnancy can it harbor a pregnancy-related motive. As such, there are benefits to disclosing a pregnancy early.

I generally recommend clients put their employer on notice about their pregnancy as soon as they are comfortable. Many symptoms of pregnancy that can interfere with work begin in the first trimester—for example, nausea and fatigue can cause tardiness and missed shifts. If your client alerts her employer to this new status sooner rather than later, this can help avoid retaliation.

It is common and quite understandable for a client to resist early disclosure. Many women may not be willing to share their pregnancies because they believe it is private medical information. However, in the pregnancy context, one cannot have both pregnancy protections and unfettered privacy protections. Women also may be reluctant to share in case they lose their pregnancy. I still recommend announcing the pregnancy—this allows women to seek medical leave if their pregnancy does not end as expected, including leave under the federal Family and Medical Leave Act (FMLA) if the woman is eligible, or state leave laws such as California’s Pregnancy Disability Leave Law.¹¹ If the employer does not know the worker is pregnant, she cannot seek protected time off to recover from pregnancy loss.

And the sooner a worker announces that she is pregnant, the sooner she can begin planning for upcoming leave and any support she may need after her return (such as lactation breaks). The longer this planning window, the less likely the employer is to feel surprised and frustrated by the worker’s absence. It is important to convey to your client that such employer frustration can lead to retaliation when she comes back to work.

It’s a good idea for your client to tell her immediate supervisor about her pregnancy first and in writing. Next, have your client talk to her supervisor in person.¹² Then have your client follow up with an email to human resources.

The initial notice has to be in writing. I have seen women fired on the spot after verbal announcement of pregnancy, and then there is no actual evidence of the pregnancy announcement other than testimony. Help your client draft an email that states her pregnancy clearly, including an estimated due date, and explains that she plans to take maximum leave under applicable law (if desired by your client).

The tone of the response to this announcement can be indicative, though not necessarily evidence, of potential future discrimination. Encourage your client to track responses in the event she wishes to report them. (Bcc’ing a personal email address is a great way to do that.) Be prepared to step in if the employer continuously provides the client with misinformation about her rights.

In future communications, your client should remain unapologetic but cooperative. She can explain that she intends to be a working mother, but she does not need to commit to working after hours postpartum to “catch up.” I suggest a four-meeting cadence between the client and her employer: one initially to review long-term projects, one a few weeks prior to the beginning of leave to plan for the transition, one soon after your client’s return, and one a few weeks after her return.

Accommodations

Employers have a legal duty to accommodate their pregnant employees’ needs as long as this does not pose an “undue hardship.”¹³ Keep in mind that the undue hardship bar is high and employers will often raise it without proper justification.¹⁴ Your client is protected from retaliation for requesting reasonable accommodations, whether or not they are granted.¹⁵

The process for determining appropriate accommodations for your client throughout her pregnancy is an interactive one, just like under the Americans with Disabilities Act (ADA). Examples of accommodations include a change in schedule, more breaks, telework, flexibility in work schedule, modified duties, a chair, a change in work location (such as an office on the ground floor), extended time to finish projects, additional support, modification or acquisition of equipment or devices, and adjustment of policies.

Pregnancy is not in and of itself a disability, but pregnancy-related conditions can rise to the level of needing accommodations, whether or not they would qualify as a disability independently under the ADA.¹⁶ These conditions include: excessive fatigue, extreme morning sickness, depression, insomnia, migraine headaches, sciatica, pelvic pain, abnormal placentation, preeclampsia, gestational diabetes, anemia, bladder dysfunction, hypertension, gastroesophageal reflux disease, and mental health concerns.

Just like under the ADA, the process to determine and facilitate accommodations for your client should be interactive, conducted in good faith, and inclusive of your client throughout. Encourage your client to keep an open mind and cooperate creatively—this process is intended to be fluid and flexible.¹⁷

Once your client announces her pregnancy, she gains the right to request accommodations related to pregnancy. Accommodations range depending on what job modifications are needed to address a worker’s symptoms.¹⁸ Employers are legally required to explore reasonable requests for pregnancy accommodations and are not allowed to force their employees to go beyond the limits of their pregnancy.¹⁹ It’s important to remind your client that she (with your help) is able, legally and physically, to advocate for her body, baby, and job all at the same time.

Encourage your client to work with her medical provider—who is in the best position to assess her condition—to determine needed accommodations. The first step is obtaining a doctor’s note, so work with your client to talk with her physician about her unique workplace needs. It is best, although not necessary, to go to the employer with the exact accommodation that your client is requesting.

In conducting an interactive process on the appropriateness of accommodations, the employer has a duty to act in good faith to

• determine the essential functions of your client’s position
• consult with you and your client to determine job-related limitations and how a reasonable accommodation could overcome those limitations
• identify potential accommodations and their effectiveness in allowing your client to continue performing essential job functions
• select and implement the accommodations most appropriate for both parties, incorporating your client’s preferences. (However, the employer has ultimate discretion to choose the accommodation to provide.)

Outright rejection of your client’s proposed or requested accommodation is a red flag. Equally important, employers’ requests for more information from your client’s doctor are not. Either way, there must be specific reasons for the employer to reject any given accommodation. Mere speculation that the suggested accommodation is not feasible falls short of the reasonable accommodation requirement.²⁰

Disclosing medical information can support your client’s legal position, but only disclose as much as your client is comfortable sharing. The employer can deny accommodations without sufficient medical support, but questions about your client’s medical situation must be tailored to assess the ability to carry out the essential functions of the job. Once disclosed, the information is to be kept confidential and shared only with relevant parties on a “need-to-know” basis.²¹

Special considerations for IVF. Just like pregnancy itself, the IVF process can be physically and emotionally demanding. The PWFA is intended to protect the fertility treatment process as a “related medical condition” of pregnancy.²² I recommend my clients disclose their IVF treatment to their employers to avoid adverse employment action.

Disclosing the process can unlock a range of benefits and accommodations that the employer is legally mandated to provide. Here, too, these accommodations are limited to those that do not pose an “undue hardship” on the employer.²³ Examples of accommodations include schedule changes for your client to attend medical visits, telework options to facilitate working during recovery, and additional time for projects to accommodate mental health concerns.

Medical leave requests. If continuing to work or continuing with her current work schedule is not an option for your client, she may be eligible for a medical leave of absence or intermittent leave. Unlike an accommodation request, a leave request is an absolute right, and the employer must provide the time off to which your client is entitled.²⁴ This time may be unpaid but is protected from retaliation.²⁵ One thing to be mindful of, however, is that if your client takes time off for fertility treatment or recovery, she may lose that time for birth recovery if she then becomes pregnant.²⁶

Discrimination Claims

In a discrimination case, you must prove that the employer committed an adverse employment action because of your client’s protected class—pregnancy or a related condition.²⁷ The adverse actions must be substantially motivated by the pregnancy to qualify as discriminatory. I’ve found that motivation can be indicated and eventually proved by correlative timing, a change in performance review, or providing false and pretextual reasons for termination.

Adverse actions include termination; demotion; suspension; denial or reduction of bonuses, raises, or salary; and unequal pay compared to those who did not take leave. They also may include actions that impair job performance or the ability for promotion, such as reassignment of duties, removal of supervisory responsibilities, assignment to lower visibility projects, assignment of more work than peers, denial of training, heightened scrutiny of work, undermining or sabotaging work, poor performance reviews, and exclusion from team meetings and events.

In addition, adverse actions include abusive scheduling, relocation to a less desirable job site, delayed return to work after leave, threats against the client or the client’s family with immigration action, and other types of harassment.

These actions can be cumulative and can result in emotional distress for your client. Be on the lookout for adverse actions over time and encourage your clients to note each time they feel slighted at work. It’s crucial to name the discrimination that your client believes she is facing as well as the protected class she believes she falls under.

Requesting leave due to pregnancy, childbirth, or related medical conditions are all protected under the PWFA and the federal Pregnancy Discrimination Act.²⁸ Many states have additional protections for pregnant workers.²⁹ And if your client is fired or treated adversely for going through fertility testing or IVF, she may have a claim for an adverse action as pregnancy discrimination.³⁰ However, discrimination based on family responsibilities is not illegal unless it is gender-motivated.³¹

Pregnancy discrimination can happen when your client is pregnant with their second or subsequent pregnancy, or it can happen before your client even becomes pregnant. No matter when it happens, be ready to support your client in the process of addressing and ameliorating any discrimination she faces.

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AAJ RESOURCES

• Employment Rights Section
• Sex Discrimination and Sexual Harassment Litigation Packet

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Daphne A. Delvaux is the founder of Delvaux Law and creator of “the Mamattorney” educational platform and can be reached at daphne@delvauxlaw.com.

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Notes

1. Mothers, especially mothers of color, are significantly impacted by the wage gap, among other employment disparities. See Nat’l Women’s Law Ctr., America’s Moms Are Still Suffering. We’ve Just Stopped Talking About It., Sept. 8, 2023, https://nwlc.org/americas-moms-are-still-suffering-weve-just-stopped-talking-about-it/.
2. Title VII requires that women affected by pregnancy, childbirth, or related medical conditions must “be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. §2000e(k) (emphasis added) (This provision is commonly referred to as the “Pregnancy Discrimination Act.”).
3. 42 U.S.C. §2000gg; U.S. Equal Emp. Opportunity Comm’n, What You Should Know About the Pregnant Workers Fairness Act, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
4. 42 U.S.C. §2000gg(2)(B)(i).
5. 41 C.F.R. §60-20.5.
6. 42 U.S.C. §2000gg-1(3).
7. 42 U.S.C. §2000e-2(a)(1); Terry v. Gary Comm. Sch. Corp., 910 F.3d 1000, 1005 (7th Cir. 2018) (Employer’s action is materially adverse when it is more disruptive than mere inconvenience or alteration of job responsibilities.).
8. Ming W. Chin et al., California Practice Guide: Employment Litigation 7:77.10 (2023) (“A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection.”) (citing Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 365 (1977)).
9. Cal. Code Regs. tit. 2 §11032(b)(3).
10. 41 C.F.R. §60-20.5.
11. 29 U.S.C. ch. 28; Cal. Gov’t Code §12945.
12. It is also appropriate to alert human resources first, but I’ve found that looping in the immediate supervisor can help ensure they do not feel left out and grow resentful.
13. 42 U.S.C. §2000gg-1(1).
14. Gleaned from my years of litigation experience at Delvaux Law.
15. 42 U.S.C. §2000gg-2(f).
16. 42 U.S.C. §2000gg(4).
17. Chin et al., supra note 8 at 9:1265 (“The interactive process requires communication and good faith exploration of possible accommodations between employer and employee.”) (citing Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (en banc); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999)).
18. 42 U.S.C. §2000gg.
19. 42 U.S.C. §2000gg-1.
20. Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1136 (2001); Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (1999).
21. Chin et al., supra note 8 at 12:635 (“A request for FMLA leave form that requires disclosure of a medical reason for the leave (or a subsequent employer request for such information) may constitute an employer ‘inquiry’ that is subject to the confidentiality requirements of the Americans with Disabilities Act (ADA).”) (citing Doe v. U.S. Postal Serv., 317 F.3d 339, 341 (D.C. Cir. 2003) (the plaintiff claimed violations of a similar confidentiality provision in the Privacy Act and Rehabilitation Act)).
22. April J. Anderson, New Federal Protections for Pregnant and Nursing Workers, Cong. Rsch. Serv., Apr. 28, 2023, https://crsreports.congress.gov/product/pdf/IF/IF12392; EEOC, Regulations to Implement the Pregnant Workers Fairness Act, 88 Fed. Reg. 54,714 (Aug. 11, 2023).
23. Id.
24. See 29 U.S.C. §2612(a)(1) (there is no “business necessity” or “undue hardship” defense under the Family Medical Leave Act).
25. 42 U.S.C. §§2000gg-1(4), 2000gg-2(f).
26. For example, if she uses four weeks of FMLA leave for fertility treatment and she becomes pregnant, she may shorten her birth recovery leave by four weeks, for a total of eight weeks of maternity leave.
27. 42 U.S.C. §2000gg-1.
28. 42 U.S.C. §2000gg; §2000e.
29. Nat’l P’ship for Women & Fams., Reasonable Accommodations for Pregnant Workers: State and Local Laws, Apr. 2022, https://tinyurl.com/56x94577.
30. 42 U.S.C. §2000gg-1(5).
31. 42 U.S.C. §2000e(k).