What to Expect When You're Expecting
(and After the Birth of Your Child)...at Work
The Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. 1 Pregnancy discrimination involves treating an individual –– an applicant or employee –– unfavorably in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits (such as leave and health insurance), and any other terms or conditions of employment. Statutory protections from pregnancy discrimination apply to all DOL employees and applicants for DOL employment.
- An agency may not maintain a written or unwritten employment policy or practice, that excludes applicants from employment or denies employees any terms, conditions, or privileges of employment because of pregnancy, childbirth, or related medical conditions.
- An agency must permit a pregnant employee to do her job for as long as she is capable of performing the job.
- An agency may not make an employment decision about an employee"s work performance based on a stereotype or assumption concerning the employee's pregnancy.
- An agency may not single out pregnancy or related conditions for special procedures to determine an employee"s ability to work.
- While an agency has a duty to protect employees" health and safety, it has no extra duty to protect pregnant or potentially pregnant employees from dangerous work conditions. Therefore, policies that exclude members of one sex from a workplace for the purpose of protecting fetuses cannot be justified under Title VII.
- An agency may not terminate, deny assignments to, or deny promotions to an employee because of her pregnancy, childbirth, or related medical condition.
Guidance on Leave
- When an employee goes on leave due to pregnancy, childbirth, or a related medical condition, the agency must keep her job open for the same period of time that it keeps jobs open for employees who go on disability or sick leave.
- An agency may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
- Employees and agencies may have additional rights and obligations under the Family Medical Leave Act of 1993 (FMLA), which permits an employee to take up to 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of a new child, if the employee has worked for the agency for at least 12 months prior to taking the leave.
Prohibition Against Retaliation
- It is unlawful to retaliate against an individual for opposing employment practices that allegedly discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
What If a Pregnant Employee Needs Accommodations? What Rights Does She Have at Work?
Employees who are temporarily unable to perform their jobs due to 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. For instance, if the agency assigns light duty work to some employees who are temporarily unable to perform their duties because of medical conditions, then pregnant employees who are temporarily unable to perform their duties must be given light duty assignments if denying light duty imposes a significant burden on pregnant employees and the agency does not have sufficiently strong reasons to justify the burden.
Federal employees with pregnancy-related medical conditions may also find protection under the Rehabilitation Act,2 which affords reasonable accommodations and protection from adverse employment actions based on disability to qualified individuals with disabilities.
Under the Rehabilitation Act, pregnancy itself is not considered a disability. However, a physical or mental impairment that occurs as a result of or during the course of pregnancy or childbirth may be a disability under the law if it substantially limits a major life activity.
If an employee has been absent from work as a result of a pregnancy-related condition and recovers, the agency may not require the employee to remain on leave until she has given birth.
What Are Some Agency Best Practices with Respect to Employees with Caregiving Responsibilities?
Title VII prohibits employment decisions that discriminate against employees with caregiving responsibilities, which includes child care, if the decisions are based on sex or another protected characteristic.
Agencies should avoid reliance on common stereotypes or biases about caregivers that may result in unlawful conduct, including:
- assuming that female employees have caregiving responsibilities that will interfere with their ability to succeed in a fast-paced environment;
- assuming that female employees who work part-time or take advantage of flexible work arrangements are less committed to their jobs than male employees who do the same; and
- assuming that female employees prefer, or should prefer, to spend time with their families rather than time at work.
Examples of prohibited conduct related to employees" caregiving responsibilities include:
- asking female applicants and employees, but not male applicants and employees, about their child care responsibilities;
- steering women with caregiving responsibilities to less prestigious or lower-paid positions than men with caregiving responsibilities; and
- treating women of color who have caregiving responsibilities differently than other employees with caregiving responsibilities due to stereotypes based on sex, race, and/or national origin.
To learn more, go to EEOCís Enforcement Guidance Number 915.002: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (May 23, 2007), available at http://www.eeoc.gov/policy/docs/caregiving.html.
Do DOL Employees Who Are Nursing Mothers Also Have Employment Protections?
Yes, under DOL’s application of the Patient Protection and Affordable Care Act of 2010, which amended the Fair Labor Standards Act, DOL must provide nursing mothers with:
- a reasonable break time to express breast milk for their nursing child each time such employee has need to express milk for one year after the child"s birth; and
- a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to express breast milk.
The Office of the Assistant Secretary for Administration and Managementís Human Resources Center, Office of WorkLife, Leave, and Benefits Policy and Programs is responsible for enforcing these requirements for employees of the U.S. Department of Labor. To learn more, visit http://labornet.dol.gov/me/leave/nursing-Mothers.htm.
Do DOL Employees Have Rights Based on Their Status as Parents?
Yes, Executive Order 11478, as amended, prohibits discrimination against federal employees and applicants for employment on the basis of parental status. “Status as a parent” refers to the status of an individual who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is a biological parent, an adoptive parent, a foster parent, a stepparent, a custodian of a legal ward, in loco parentis over such an individual, or actively seeking legal custody or adoption of such an individual.
For More Information
Any questions on this guidance should be addressed to the Department of Labor's Civil Rights Center. If at any time you think that you have been subjected to pregnancy (or related) discrimination, contact the Civil Rights Center at 202-693-6500 within 45 days of the alleged discriminatory event in order to preserve your right to file an EEO complaint.
2. The Rehabilitation Act of 1973 protects federal employees. The standards for determining employment discrimination under section 501 of the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act (ADA) as amended by the ADA Amendments Act of 2008.