Special delivery: considerations for pregnant employees

The Pregnancy Discrimination Act of 1978 (PDA) makes it illegal for employers to discriminate against pregnant employees and requires reasonable accommodations for an employee’s known limitations related to pregnancy or childbirth. Over the past few years, nearly all states covered by Midsouth Employment Law Letter have also enacted state-level protections, most patterned after the model Pregnant Workers Fairness Act (PWFA). The lone exception, North Carolina, has extended some protections to public employees through Executive Order. Let’s look at how the PDA and the PWFA affect employers who have pregnant employees. We’ll be using West Virginia’s version as an example, though the others are similar.

Unlawful discrimination

Under both the PDA and PWFA, it’s unlawful for employers to discriminate against employees based on pregnancy or childbirth by firing them or otherwise “deny[ing] employment opportunities.” These “employment opportunities” include essentially the full gamut of terms and conditions of employment, including pay, assignments, promotions, hiring, firing, layoffs, and fringe benefits.

As the PDA and the PWFA take the form of amendments to existing civil rights statutes (Title VII of the Civil Rights Act of 1964 and its state equivalents), discrimination based on pregnancy is considered a form of unlawful gender discrimination.

The term “pregnancy” is likewise quite broad. Under the PWFA, “pregnancy” encompasses not just current pregnancies, but also pregnancies which are past, potential, or even intended.