How to Trigger a Pregnancy Discrimination Lawsuit
Exploring protections for pregnant workers in the US
Employers should understand that pregnant workers today arguably enjoy more workplace legal protections than any class of workers in the United States. The icing on the cake was the Pregnant Workers Fairness Act (the "PWFA"), which Congress passed in 2022 and became effective on June 27, 2023. The EEOC regulations carrying out the law became effective on June 18, 2024.
Lawsuits are already being filed under the PWFA. A case recently filed in Pennsylvania federal court, discussed later in this story, provides a lesson in how not to treat a pregnant employee. As always, we make no assumptions about the accuracy of the plaintiff's allegations, but only use them to educate SLN readers about legal risk.
Before passage of the PWFA, there were laws that were potentially applicable to adverse actions taken by employers against pregnant workers, but they were more limited in scope than the PWFA. These laws are:
Title VII of the Civil Rights Act of 1964, as amended by Pregnancy Discrimination Act in 1978, requires that pregnant workers receive the same treatment as any disabled worker. However, Title VII contains no requirement to accommodate pregnancy disabilities, meaning (in theory, at least) that if any worker would be fired for missing three weeks at work because of a medical issue, so could a pregnant employee.
The Family Medical Leave Act often applies to pregnancy, but its scope is more limited than many realize. The employee must have worked for the employer for at least 12 months before the start of the leave and must have worked at least 1,250 hours during that period. Therefore, applicants and recent hires are excluded. In addition, to be eligible the employee must work at a location where the employer has 50 or more employees within 75 miles (for remote workers, the reporting office is used to evaluate this criteria). Note: some states have enacted FMLA equivalents with broader coverage, or even paid leave laws. A recent survey can be found here:
Jon Davis
The Americans with Disabilities Act provides no relief for a normal pregnancy (some complications may be covered). The scope of protected characteristics under the ADA is narrow, mainly covering individuals who have longer term physical or mental impairment that substantially limit one or more "major life activities." Pregnancy alone ordinarily would not be covered under the ADA.
The federal PUMP Act, requires accommodations for nursing mothers.
The PWFA essentially serves to bring pregnancy under the same rules as the ADA. A covered employer (15 or more employees) must provide a “reasonable accommodation” to an employee’s or applicant’s limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship." The undue hardship standard is ambiguous, and no one can tell you what it means in every circumstance. Naturally, the EEOC has provided examples of PWFA accommodations that, in its view, do not cause undue hardship for an employer:
- Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
- Telework;
- Temporary reassignment;
- Temporary suspension of one or more essential functions of a job;
- Leave for health care appointments;
- Light duty or help with lifting or other manual labor;
- Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth;
- Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom; or
- Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing.
The PWFA also contains an anti-retaliation provision, making it unlawful to retaliate against an employee or applicant for requesting a reasonable accommodation for a pregnancy-related limitation such as (to quote the EEOC): "leave to recover from childbirth or other medical conditions related to pregnancy or childbirth."
Applying the new standard
On October 21, 2024, former Talent Acquisition Specialist Kara Reifsnyder sued her former employer Monarch Staffing, a woman-owned staffing firm based in a Philadelphia suburb. It is perhaps noteworthy that virtually all Monarch employees are women, according to the firm's website. The operative allegations of the complaint are summarized as follows:
- In May 2023, Plaintiff notified [management] that she was pregnant.
- Plaintiff’s expected delivery date was December 4, 2023. Plaintiff stated that she would need to take a maternity leave following her pregnancy, starting in or around December 2023.
- In September 2023, [Monarch] assigned Plaintiff’s non-pregnant counterparts more tasks than Plaintiff. Plaintiff did not receive new client tasks. Plaintiff did not get assigned any special projects.
- On October 10, 2023, [a back-office employee] messaged Plaintiff via Microsoft Teams that her short-term disability paperwork to cover her maternity leave had been submitted to Defendant’s broker. Later that same day [managers] called Plaintiff and terminated Plaintiff’s employment.
- The alleged reason for termination was that Defendant could no longer keep Plaintiff around due to "business needs."
- Shortly after that Plaintiff was told that she might be able to return to work after she gave birth, “if business needs dictate it.” Upon information and belief, Defendant had a business need and yet did not rehire Plaintiff.
The implication of the lawsuit is that the employer, upon learning of the pregnancy, withheld work from the plaintiff and then, as her due date approached, terminated her for lack of work. Whether this true or not, the timing of the discharge alone would seem to lend itself to a colorable claim of discrimination. The complaint (attached below) contains claims under the PWFA for failure to accommodate as well as retaliation for seeking accommodation (maternity leave). The retaliation claim, unavailable before the PWFA, can be a powerful weapon under these circumstances.
Employers have always had reason to exercise caution when evaluating adverse action against a pregnant employee. The PWFA now raises that level of scrutiny to extreme caution.
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