Pregnancy Discrimination
Understanding Pregnancy Discrimination
Our federal employment lawyers have helped several federal employees who are pregnant, new mothers, or planning their families navigate pregnancy discrimination, denial of reasonable accommodation, and lactation rights.
In 2023, President Biden signed the Pregnant Workers Fairness Act (PWFA), which codifies and clarifies the decision by the U.S. Supreme Court in Young v. United Parcel Service Inc., 575 U.S. 206 (2015), which held that employers making reasonable accommodations for other similarly situated workers must also provide pregnant workers with reasonable accommodation.
The new law requires employers, including federal agencies, to reasonably accommodate the known limitations related to pregnancy and childbirth and prohibits agencies from requiring an employee to take leave if another reasonable accommodation can be provided.
The law also prohibits agencies from retaliating against any employee for requesting reasonable accommodation.
Protection Under the Pregnant Workers Fairness Act
The PWFA provides protections in addition to the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy discrimination as a subset of sex discrimination, making discrimination based on the following illegal:
- Pregnancy
- Past pregnancy
- Potential pregnancy (such as when undergoing infertility treatments)
- Abortion/miscarriage
- Pregnancy-related and/or childbirth-related medical conditions (including lactation)
The PDA’s broad coverage was intended to clarify that employers, including federal agencies, should not base decisions on whether a woman may have, is having, or has had children, even if the agency believes it is acting to protect a pregnant woman.
The PDA allows women to assume their risks and decide what choices are best for themselves and their families. The pivotal question is whether the employer denied an employee a term, benefit, or privilege of employment on the basis of the employee’s pregnancy status, as opposed to whether the employer intended to cause harm to the pregnant worker in denying them a term, benefit, or privilege of employment.
Under the PDA, your agency can still be liable for pregnancy discrimination even if the agency acted with the intention to make things easier for a pregnant woman or woman with young children. In Roxanne C. v. Dep’t of Defense, EEOC Appeal No. 0120142863 (2016), where the Federal Practice Group represented the Appellant, the U.S. Equal Employment Opportunity Commission reversed the initial decision in favor of the Defense Intelligence Agency (DIA).
The EEOC held that however well-intentioned, DIA’s refusal to allow the complainant to participate in training because it fell within the last two weeks of the employee’s pregnancy and could create risk for the mother and baby, was rooted in stereotypes and assumptions about a pregnant worker’s job capabilities and constituted unlawful pregnancy discrimination.
PUMP Act and Nursing Mothers
In addition to the PWFA, President Biden signed the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which requires employers, including federal agencies, to provide a reasonable break time to express breast milk for one year after a child’s birth and a private place other than a bathroom to express milk.
Pregnancy Discrimination Lawyers You Can Trust
If you have experienced pregnancy discrimination at your workplace, we can help. Our expert team can guide you through the EEO complaint process to ensure your claim is handled correctly.
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Frequently Asked Questions
Federal employees are protected from discrimination based on sex, gender, color, race, national origin, religion, age, and disability, and have the right to file an EEO complaint against their agency should they face discrimination. Federal employees also have the right to due process before being subjected to an adverse action.
Yes, federal employees can sue for discrimination, but first you must exhaust administrative remedies, which includes filing a formal complaint with your agency and letting 180 days pass. In many instances, federal employees elect to pursue their EEO complaints through the EEOC’s hearing process instead of filing a civil action.
Federal employees must initiate contact with an EEO Counselor within 45 days of any act of discrimination. After an informal complaint stage, you will be issued a Notice of Right to File a formal complaint, which will permit you 15 days to do so.
Federal employees do not have the right to sue for wrongful termination the way private sector employees do, but most federal employees have the right to appeal a removal to the MSPB, which will adjudicate whether the Agency can sustain any charges raised against you.
Yes, most federal employees can file a complaint against their agency with the U.S. Office of Special Counsel (OSC) if they are facing whistleblower retaliation. If OSC does not accept your complaint for investigation and prosecution, OSC will issue you an Individual Right of Action (IRA) notice giving you the right to pursue corrective action at the MSPB. Federal employees do not have the right to sue in court under the Whistleblower Protection Act.