Pregnancy Discrimination Act

Pregnancy discrimination involves treating an applicant or employee unfavorably because they are pregnant, gave birth to a child, or have a medical condition related to their pregnancy or childbirth. Those affected by their pregnancy, or related conditions, must be treated in the same manner as other applicants or employees with similar abilities or limitations.

The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964 and applies to private employers with 15 or more employees. It forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

Harassment

It is unlawful to harass an individual because of their pregnancy, childbirth, or a medical condition related to their pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.

Hiring

Employers cannot refuse to hire a pregnant person because of their pregnancy-related condition as long as they can perform the major functions of their job. Employers cannot refuse to hire a pregnant person because of any prejudices against pregnant workers or the prejudices of coworkers, clients, or customers.

Leave

Under the PDA, an employer that allows employees with a temporary disability to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Additionally, under the federal Family and Medical Leave Act, a new parent—including a foster or adoptive parent—may be eligible for 12 weeks of leave (unpaid, or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.  

Temporary Disability

If a person is temporarily unable to perform their job due to a medical condition related to their pregnancy or childbirth, their employer must treat them in the same way as it treats any other employee with a temporary disability. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other employees with a temporary disability.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform their job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).  

Pregnant Workers Fairness Act

As of June 27, 2023, employers with 15 or more employees must now accommodate employees’ and applicants’ known limitations related to pregnancy, childbirth, or related medical conditions unless it would create an undue hardship. Employers also cannot take any adverse action against an employee or applicant for requesting or using an accommodation.  

Previously under federal law, employers generally only had to provide reasonable accommodations for pregnant employees and applicants if they also provided accommodations to other employees who were similar in their ability or inability to work. Note that many state laws already went above and beyond federal law in requiring accommodations for pregnant employees. 

The Know Your Rights poster now includes the Pregnant Workers Fairness Act and can be found on our Federal Posting Requirements page.

PUMP Act

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which is an amendment to the federal Fair Labor Standards Act (FLSA), requires that employers provide:

• Reasonable break time for nearly all FLSA-covered employees to express breast milk for their nursing child for one year after the child’s birth, each time they need to express the milk. Employees who telework are also eligible to take pump breaks under the FLSA on the same basis as other employees who are in the workplace.
• A place, other than a bathroom, shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. Workers who telework must also be free from observation by any employer-provided or required video system, including computer camera, security camera, or web conferencing platform.

The FLSA requirement of break time for nursing employees to express their breast milk does not preempt state laws with greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond one year after a child’s birth). 

Additionally, the FLSA does not require employers to provide paid breaks to nursing employees so they can express their breast milk. However, if an employer already provides paid breaks, an employee who uses that break time to express milk must be paid in the same way that other employees are paid for their break time. 

The FLSA’s requirement that an employee must be completely relieved from duty during their break or the time must be compensated as work time (aka hours worked) also applies when an employee is using break time to express breast milk. In other words, the time spent expressing milk is considered to be hours worked if an employee is not completely relieved from duty during the entire break. Nonexempt employees who work, or are interrupted, during their break must be paid for the entire break and exempt employees are paid in full regardless of a break. 

Note: If an employer has fewer than 50 employees and can demonstrate that compliance with the law would impose an undue hardship on the employer, that employer does not have to provide breaks to express breast milk. 

29 U.S.C. § 207

PUMP Act and Interaction with Other Laws

Some states and localities have laws addressing lactation accommodations. If multiple laws apply, employers must abide by the law (or portion of the law) with the greatest benefit to the employee. 

For example, federal law and State XYZ have lactation location requirements that are almost identical. The difference between the two laws is that State XYZ requires employers provide employees with access to running water. This state-mandated running water requirement exceeds the federal requirement and provides a greater benefit to employees. As a result, employers with employees in State XYZ must abide by both federal and state law by meeting the identical requirements and providing access to running water.

Local law may also be applicable, in addition to state and federal law. For instance, in the same scenario as above, Locality 123 is in State XYZ. Locality 123 has almost identical lactation requirements as federal and state law; however, the locality also requires that the lactation space include access to electricity. The locally-mandated electricity requirement exceeds state and federal law and provides a greater benefit to the employee. As a result, employees working in Locality 123 are entitled to both water and electricity (in addition to the identical requirements). But, if the employees are working in State XYZ but are not in Locality 123, they are only entitled to water (and the identical requirements).

Review the state and local lactation accommodation laws pages that are relevant to your workplace to ensure full legal compliance.