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The Pregnancy Discrimination Act (PDA) amended Title VII to include pregnancy discrimination as a subset of sex discrimination, making discrimination based not only on pregnancy, but also past pregnancy, potential pregnancy (such as when undergoing infertility treatments), and pregnancy-related and/or childbirth-related medical conditions (including lactation) all forms of illegal sex discrimination. The PDA’s broad coverage was intended to send a clear message to employers, including the federal government, that they should not base decisions on whether a woman may have, is having, or had children, even if the employer believes its acting in the best interest of or to protect a pregnant woman. Despite this, as almost any woman knows, these decisions are made day in and day out, to the long term detriment of women and their careers.

The PDA allows women to assume their own risks and decide what choices are best for themselves and their families. Contrary to some thinking, there is no need to prove malice in order to prove a claim of pregnancy discrimination. Your employer can still be liable for pregnancy discrimination even if the intention behind the decision at issue originated from a place of genuine concern or desire to make things easier for a pregnant woman or woman with young children. 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. In the matter of 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 underscored this distinction. In a stunning reversal of the initial decision finding in favor the Defense Intelligence Agency, the EEOC found direct evidence of pregnancy discrimination. Specifically, the EEOC held that however well-intentioned, the Agency’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.

Further, notwithstanding that pregnancy discrimination is sex discrimination, to prevail, the employee does not need to prove a larger pattern of gender discrimination, i.e., the complainant does not have to showthat their employer treats similarly situated male employees more favorably than all similarly situated female employees, regardless of whether those female employees are also experiencing a pregnancy. Rather, the Supreme Court, in the case of Young v. United Parcel Service, 575 U.S. 206 (2015), found that the relevant comparator in a situation of pregnancy discrimination include “others ‘similar in their ability or inability to work,’” which often means workers, male or female, experiencing similar temporary medical restrictions, or seeking similar leave flexibilities, who are not otherwise pregnant. This means that pregnant or breastfeeding women needing some accommodation are entitled to the same accommodation provided to other employees with either temporary impairments or physical limitations. While the Youngdecision is still relatively new, agencies have already moved away from the prior bizarre requirement that a pregnant woman show the pregnancy is high risk or otherwise complicated to any accommodation or workplace modification. The hope is that the trend will continue toward common sense.

It is important to understand your rights when it comes to pregnancy discrimination. If you have concerns that you are being treated differently on account of your pregnancy, or pregnancy-related status as explained in this article, please contact the Federal Practice Group for a consultation.

Sarah McKinin is a senior associate at the Federal Practice Group and represents clients in federal labor and employment claims before the Equal Employment Opportunity Commission (EEOC), Office of Inspector General (OIG), Office of Special Counsel (OSC) and the Merit System Protection Board (MSPB). She is well-versed in the administrative and procedural processes involved in representing employees before federal agencies.