11. What are the protections under Title VII against discrimination based upon pregnancy?
Title VII protects women against discrimination based upon pregnancy or intent to become pregnant. The Pregnancy Discrimination Act of 1978 amended title VII to provide the following specific protections:
• Pregnancy – An employer cannot discriminate against women employees who become pregnant or give birth. This may include intentional discrimination or policies that have the effect of discriminating
⁃ Example: Intentional discrimination may include failing to hire, firing, or denying benefits based upon her pregnancy. A discriminatory policy might include mandatory reassignment of pregnant employees to low-stress jobs.
• Insurance Plans – Employers sponsoring or offering health or disability plans must include coverage for pregnancy, childbirth, and related medical conditions in the same manner as other health conditions. Further, plans that cover female employees must also cover employees’ spouses.
⁃ Note: This is a considerable difference between privately-purchased health plans and employer-based plans.
• Maternity Leave – Employers are limited in their ability to force employees to take maternity leave from work. For example, employers cannot force pregnant women to stop working until after birth. Lastly, the employer cannot mandate a specific leave of absence for pregnancy or birth.
⁃ Note: The Family Medical Leave Act may provide for rights to unpaid leave during and following birth.
• Discussion: How do you feel about the protections afforded women in the event of pregnancy? Do you think these protections are effective? Why or why not? Can you think of any arguments against any of the protections? Should an employer’s intent in passing a policy affecting maternity leave be considered when determining discrimination? Why or why not?
• Practice Question: April is an employee of ABC Corp. She becomes pregnant and is scheduled to give birth in two weeks. Her manager, Eric, approaches her about maternity leave. He strongly encourages her to go ahead and take leave and states, “you should take leave because, if you do not, I am going to assign you to a desk and not give you anything to do”. Eric is trying to be a helpful boss, but April is offended by his statement. Does April have a cause of action against ABC Corp?