Preventing potential pregnancy and parental leave pitfalls in the workplace

Most employers are generally aware that federal and state laws protect employees from adverse employment actions because of pregnancy, including Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act (FMLA), and, potentially, the Americans with Disabilities Act (ADA). Employers should also be aware of and follow the Pregnant Workers Fairness Act (PWFA), which passed in 2023.

Employers, however, should also be conscious of how coworkers or supervisors communicate with employees who either are pregnant or may be planning to take parental leave to assist with a partner’s recent pregnancy, especially within the U.S. 7th Circuit Court of Appeals. Ill-received, off-the-cuff comments that some employees may think they made in jest could give rise to hostile work environment claims under federal law. Also, what one person may view as humor, another may view as harassment.

What creates a hostile work environment?

The 7th Circuit (which covers employers in Illinois, Indiana, and Wisconsin) recognizes “hostile work environment claims” under Title VII. Unlike a traditional Title VII claim, which requires an adverse employment action such as termination, demotion, or reduction in pay, a hostile work environment claim requires only that an employee demonstrate (1) the work environment was subjectively and objectively offensive, (2) the harassment was based upon membership in a protected class (which includes sex and pregnancy status), (3) the conduct was severe or pervasive, and (4) there is a basis for employer liability.