Before, during, and after pregnancy

Legal safeguards for pregnant workers have been added over time as the expectations of employees and societal roles and values evolve. The Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, made it illegal to fire or discriminate based on pregnancy, childbirth, or related medical conditions. In 2022, the EEOC investigated more than 2,200 pregnancy discrimination complaints, and resolved thousands more in previous years.

Pregnancy discrimination affects women in all occupations, the agency says, but low-income women and those with physically demanding jobs are especially at risk. Under the PWFA, employers are obligated to provide reasonable accommodations unless they place an undue hardship on the employer, defined as a significant difficulty or expense.

It is unlawful for employers to deny employment opportunities to pregnant employees based on their need for reasonable accommodations, require them to take paid or unpaid leave to sidestep other reasonable accommodations, or retaliate against workers who report violations. These rules apply not only before, during and after pregnancy, but even to employers’ actions regarding women’s potential for pregnancy.

At HSB, we have seen an increase in claims based on pregnancy discrimination and we anticipate that this will continue to rise as ongoing awareness of the new PWFA law becomes more prevalent.

Flexible hours, time off work

The EEOC lists these possible reasonable accommodations:

·         Additional or longer breaks to drink water, eat, rest, or use the restroom
·         Flexible hours, such as shorter schedules, part-time work, or later start times
·         Leave for health care appointments
·         Receiving closer parking accommodations
·         Leave or time off to recover from childbirth or other related medical conditions
·         Changing a dress code or providing safety equipment that fits
·         Being excused from strenuous activities and/or exposure to chemicals not safe for pregnancy
·         Changing equipment, devices, or workstations to make the employee more comfortable

EEOC begins enforcement

Although the EEOC issued its final regulations to carry out the PWFA in June 2024, the agency began accepting charges alleging violations when the law went into effect in June 2023. Already, several employers have been sued after complaints from employees.

A hotel and resort agreed to a $100,000 settlement in an EEOC lawsuit that accused the company of firing an employee after she requested leave to recover and grieve following a still birth. A hospitality company settled a discrimination lawsuit for $150,000 after the EEOC charged it failed to accommodate a pregnant employee and fired her days after she had a miscarriage. A pharmacy and retailer paid $205,000 after the EEOC alleged a store manager refused a pregnant salesclerk permission to leave for an urgent medical appointment.

Other penalties have included extra reporting requirements, mandated training for employees and supervisors, reviews of employee policies, and other remedial actions. The EEOC says its enforcement of employment discrimination laws will continue to focus on what it identifies as vulnerable populations, including pregnant workers. The agency has sent a clear message to employers, with one trial attorney saying, “No one should be forced to choose between their livelihood and the health of their pregnancy.”

Other laws can be more restrictive

Keep in mind that the PWFA applies only to accommodations for pregnant workers and new mothers. Becoming familiar with the requirements under the PWFA will not ensure a business will follow all discrimination laws that protect pregnant employees. It does not replace existing federal discrimination statutes or local laws in more than 30 states and cities that may be more restrictive in accommodating pregnant workers.

Even if a business has only one remote employee in a state that they do not have an office in, the company is usually required to follow that state’s employment laws. Other federal laws enforced by the EEOC may also apply to conditions related to pregnancy.

Title VII protects against discrimination based on pregnancy, childbirth, or related medical conditions, and the Americans with Disabilities Act (ADA) may cover certain medical conditions related to pregnancy, although pregnancy itself is not a disability, the agency notes.

The Department of Labor, meanwhile, enforces the Family with Medical Leave Act (FMLA) which covers unpaid job-protected leave and the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act), which broadens protections to breast feed at work.

Stay informed, get protection

How can employers and risk managers keep up with all the federal, state, and local laws?

The EEOC provides information and resources on its website regarding pregnancy discrimination and disability-related pregnancy discrimination. Employers and risk managers also can visit this page for an overview, terms, and provisions of the Pregnant Workers Fairness Act.

State and local agencies may offer information about the rights of pregnant workers and industry associations and organizations are another potential source of information. In addition, it is essential for a business to add specialty insurance for potential employment charges and lawsuits that could arise from pregnancy claims and other workplace complaints. Commercial General Liability insurance and Umbrella policies exclude exposures related to employment liability.

Employment Practices Liability Insurance (EPLI) is designed to cover a wide range of liability and defense costs from claims that allege unlawful employment practices brought by full-time, part-time, and seasonal employees, independent contractors, volunteers, and job applicants.

EPLI also provides policyholders access to risk management tools including updates on employment trends and legal requirements, sample employee handbooks, forms, employee and manager training, and other guidelines to help maintain a workplace free of harassment and discrimination.

Some EPLI policies even include coverage for workplace violence and other critical incidents, providing counseling services, preparedness planning, professional security assessments, workplace security guards, and payment for lost income and extra expenses.

Related: More than half of pregnant U.S. women say they must fight to get the care they need

Stay ahead of employment trends

The failure to comply with the PWFA and other laws against pregnancy discrimination can have serious consequences for both employees and employers. In addition to health concerns for women and legal costs for employers, a pregnancy discrimination complaint can harm employee morale, damage a company’s reputation, and lead to other penalties.

Charges can be particularly devastating for smaller businesses, which often lack the knowledge or resources to respond. Expenses will quickly impact the bottom line and in more severe circumstances, even a single discrimination lawsuit can significantly impact a company’s financial stability.

It is critical for risk managers to stay ahead of employment laws, trends, and employer responsibilities. Treat employees with fairness and respect and choose comprehensive insurance protection that helps prevent and cover losses from employment practices lawsuits and complaints.

Sandra Tata is part of the HSB Portfolio Risk Solutions Underwriting team and is currently the Specialty Liability Product Manager Lead. Her product management focus is Employment Practices Liability and Miscellaneous Professional Liability.