Pregnancy, Maternity and Paternity Leave, and Breast Feeding

Whether it’s your first child or your fifth, pregnancy is stressful. It’s also something to be celebrated. Unfortunately, not all employers agree, and rather than attempt to accommodate employees as required by law, employers sometimes harass and otherwise discriminate employees because of their pregnancy, related conditions, and childbirth.

Fortunately, several powerful state and federal laws protect new parents, and our attorneys have extensive experience fighting for the rights of new parents.

Whether your employer has been treating you differently since your baby bump appeared, demoted you after taking leave, or you need accommodations for breastfeeding and pumping, we can help.

The Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act of 1964 to clarify that pregnancy discrimination is a form of prohibited sex discrimination by adding:

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work…

Title VII, 42 U.S.C. § 2000e-2, codifies the prohibition of sex discrimination, and the clarifying amendment provided by the Pregnancy Discrimination Act is found at 42 U.S.C. § 2000e(k).

Title VII and the Pregnancy Discrimination Act apply to employers who employ at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year. The law prohibits covered employers from harassing, terminating, or otherwise discriminating against women because of their pregnancy.

Despite these federal protections, some employers nevertheless discriminate against their pregnant employees. Some of the forms of discrimination that we’ve seen includes:

  • a TV anchor slowly pushed off-air,
  • a pharmaceutical sales rep reassigned to less profitable regions, and
  • a variety of employees denied training opportunities because their employer assumed they would never return to work.

The Pregnancy Discrimination Act and Title VII protect victims of discrimination if they oppose unlawful discrimination and complain their employer or a government office tasked with investigating or combatting discrimination, such as the federal EEOC or state and local human rights commissions.

Victims of discrimination, including victims of illegal retaliation, must first file a complaint with the EEOC before bringing a lawsuit in federal court. In many jurisdictions, employees may also file with a state or local agency under an established work-sharing agreement with the EEOC. The agencies are supposed to investigate employee complaints, but in many cases, the agency only rubber stamps the complaint and issues a Right to Sue Letter, which grants employees a 90-day window in which to file a complaint in federal court.

Remedies available to victims of pregnancy discrimination include reinstatement or other injunctive relief ordering the employer to stop the discrimination, front pay, back pay, compensatory damages, punitive damages, and attorneys’ fees. Compensatory and punitive damages under Title VII are limited to between $50,000 and $300,000 depending on the size of the employer.

The Family and Medical Leave Act

Claims of pregnancy discrimination often overlap with claims under the Family and Medical Leave Act (FMLA). The FMLA, 29 U.S.C. § 2611 et seq., requires employers to provide employees with up to 12 weeks of unpaid leave for a serious illness, to care for a seriously ill family member, or to care for a newly born or adopted child. The FMLA applies to employees who have worked at least 1250 hours for their employer in the last 12 months, and employers with at least 50 employees in a 75-mile radius.

You can read more about our FMLA practice here.

Critical for pregnant women, the FMLA not only allows for protected leave after childbirth, but it also allows employees to take leave if their doctor places them on bed rest due to complications like preeclampsia. The FMLA also permits intermittent leave for doctors’ appointments.

Employers cannot interfere with, restrain, or deny the exercise of an employee’s right to take leave, and employers cannot retaliate against an employee because they took leave. Employers are required to continue group health insurance coverage under the same terms and conditions as if the employee had not taken leave. When an employee returns from leave, they must be restored to the same position they held, or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.

Paid Leave for Federal Employees

In addition to the right take FMLA leave, per the National Defense Authorization Act of 2020, signed by President Trump on December 20, 2019, many federal employees now qualify for up to 12 weeks of paid parental leave in connection with the birth, adoption, or foster care placement of a child covered by the FMLA. This new benefit applies to leave taken in connection with a birth or placement occurring on or after October 1, 2020.

Breast Feeding and Pumping

In 2010, the Patient Protection and Affordable Care Act modified the Fair Labor Standards Act (FLSA) to require employers to provide:

reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.

Employers must also provide

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 an employee to express breast milk. 

The federal breastfeeding and pumping accommodation law is found at 29 U.S.C. § 207(r), and it applies to all employers that are covered by the FLSA and not exempt from the FLSA’s overtime requirements. This provision generally means that the federal breastfeeding and pumping laws apply to employers with annual sales exceeding $500,000.

Additional Protections Including Prohibitions on Familial Responsibility Discrimination

Many states and local jurisdictions provide protections for employees that go far beyond those provided under federal law by providing for more generous leave periods, prohibiting more forms of discrimination, or by eliminating the caps on compensatory and punitive damages found under Title VII.  For these reasons, it may be advantageous to prosecute an employee’s claims under state or local law instead of federal law.

The District of Columbia, which is home to some of the most generous employee rights laws, provides additional leave, prohibits other forms of discrimination, and mandates that employers provide accommodations for breastfeeding. 

The D.C. Human Rights Act (D.C. HRA), D.C. Code § 2-1401.01 et seq., which applies to employers of all sizes, prohibits discrimination based upon sex, marital status, familial status, and family responsibilities.

The D.C. HRA defines “discrimination on the basis of sex” as including discrimination on the basis of pregnancy, childbirth, related medical conditions, and breastfeeding. The D.C. HRA also defines “marital status” as meaning “the state of being married, in a domestic partnership, single, divorced, separated, or widowed and the usual conditions associated therewith, including pregnancy or parenthood.” D.C. further defines “familial status” as being domiciled with an individual under the age of 18 over whom the employee has or is obtaining custody as well as pregnancy.

The D.C. HRA also requires employers to provide “reasonable daily unpaid break periods, as required by the employee, so that the employee may express breast milk for her child to main milk supply and comfort.” Employers must “make reasonable efforts to provide a sanitary room or other location near the work area, other than a bathroom or toilet stall, where an employee can express her breast milk in privacy and security.”

Victims may pursue violations of the D.C. HRA through the D.C. Commission on Human Rights or in D.C. court. Unlike Title VII, there is no statutory limitation on compensatory and punitive damages.

In addition to the provisions contained in the D.C. HRA, the D.C. Code provides an entire chapter dedicated to reasonable accommodations for pregnant and nursing employees. Chapter 12A of Title 32, titled “Reasonable Accommodations for Pregnant and Nursing Workers,” essentially recodifies the accommodation requirements found under disabilities laws and the D.C. HRA to more clearly state the rights of employees and obligations of employers.

D.C. also goes beyond federal law concerning family and medical leave. Under the D.C. law, employees who have been employed by their employer for at least one year and who have worked at least 1,000 in the prior 12 months, can take up to 16 weeks of unpaid leave during any 24-month period. D.C. law also provides for up to 24 hours of leave per 12 months to participate in school-related activities for children. The D.C. Universal Paid Leave Amendment Act of 2016 additionally provides employees up to two weeks of paid leave to care for their serious health condition, up to six weeks of paid leave to care for a family member with a serious health condition, and up to eight weeks to bond with a new child.

Similarly, the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq., which applies to employers with at least 15 employees, also prohibits discrimination based upon sex, pregnancy, and disability (including temporary disabilities). The Florida Civil Rights Act may be more favorable for employees in certain situations because it has a longer statute of limitations than Title VII – 1 year vs. 180 to 300 days.

If you believe that your employer is discriminating against you because of your pregnancy, your health, your familial obligations, or your leave-taking, call us today.