Legal Insider: Preventing Pregnancy Discrimination

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent employees that have been affected by pregnancy discrimination. Here are some tips on the subject.

Prevention of Pregnancy Discrimination 

Pregnancy discrimination, unfortunately, is one of the fastest-growing areas of discrimination law because many employers do not understand the legal requirements that are in place to protect pregnant employees.

The following general guidance is meant to help employers prevent and appropriately deal with, as well as educate employees regarding, issues of pregnancy discrimination in the workplace.

Know Duties and Rights of Pregnant Employees 

The Pregnancy Discrimination Act makes it illegal for an employer with 15 or more employees to discriminate against an employee in all areas of employment, including hiring, firing, pay, job assignments, promotions, layoff, training and benefits (e.g., leave and health insurance). It is important for employers and employees to understand these rights.

Example: Rachel applies for a position as a pharmaceutical sales representative. She is also five months pregnant. During her interview, the hiring manager explains that the position will require a lot of walking and asks whether Rachel’s pregnancy will affect her ability to work or return to work.

Due to concerns about this issue, Rachel is not hired as a result of the hiring manager’s belief that her pregnancy will affect her ability to work. Jennifer could bring a case of pregnancy discrimination.

Providing Equal Treatment to Pregnant Employees

If an employee becomes pregnant or is unable to perform her job due to issues during and/or after her pregnancy, the employer must treat the employee the same way it treats temporarily disabled employees. Employers often misunderstand this.

Example: Employees at Smith Co. with two years of seniority can apply for promotions. Mary is excluded from an upcoming promotion process at work. She is told that her three months of maternity leave will not count towards her seniority.

At the same time, Smith Co. continues to give seniority credit to employees who take leave for temporary injuries and medical issues, such as back injuries. Mary could bring a case of unequal treatment and discrimination.

Employers Should Not Interfere with Pregnancy Leave

If an employee is entitled to request leave for pregnancy, an employer should not attempt to interfere with such a leave request. If an employee has worked for at least 12 months and the employer has 50 or more employees, then an employee may be entitled to 12 weeks of leave for pregnancy (paid or unpaid) under the Family and Medical Leave Act.

Some states (not Virginia) have additional and differing pregnancy discrimination-related laws covering smaller employers.

Avoid Making Small Talk About Pregnant Employees

One of the most common ways in which an employer gets into trouble for pregnancy-related issues at work is when a supervisor makes comments about a pregnant employee to other employees. There are a number of reasons why this shouldn’t occur, mainly due to an employee’s private medical issues, but it is also a form of discrimination.

We often see this in the context of supervisors speaking with other employees about a pregnant employee, such as commenting about whether the pregnant employee is healthy enough to work or how taking maternity leave may negatively impact the employee’s career. These types of comments can be used against employers in pregnancy discrimination claims.

Difficult Pregnancies Can Trigger Other Employee Rights

If a pregnant employee is having serious medical issues related to her pregnancy, then she may be able to ask for a reasonable accommodation (e.g., teleworking, restrictions on lifting) under the Americans with Disabilities Act. Again, this requirement, among others cited above, can be dependent on whether or not an employer has 15 or more employees.

General Tips from the EEOC

For those interested, more general tips on pregnancy discrimination can be found here in guidance from the Equal Employment Opportunity Commission (EEOC).

Our law firm represents and advises federal employees in pregnancy discrimination and other employment matters. If you need legal assistance regarding a pregnancy discrimination complaint or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.