Pregnancy Discrimination and Accommodations
As part of our work to protect all Marylanders’ right to freely make reproductive health decisions, NARAL Pro-Choice Maryland is fighting pregnancy discrimination everywhere it occurs, including in the workplace, healthcare, schools, and the correctional system. Everyone has the right to maintain a healthy pregnancy, and no one should be forced out of their job because they are pregnant.
While most pregnant individuals will continue working throughout their pregnancies without incident, some may require temporary adjustments to avoid pregnancy complications and safely work. Those adjustments may include more frequent bathroom breaks, carrying a water bottle, or sitting rather than standing during a long shift. However, many employers have the power to deny pregnant workers these simple accommodations necessary for them to safely and comfortably continue doing their jobs. Too frequently, pregnant individuals who request accommodations face opposition from their employers. In severe cases, pregnant workers are fired or otherwise punished, including by losing promotions, being forced into lower-paying positions, or being denied professional development opportunities. For pregnant workers who are the main source of income for their families, a denied request for accommodations likely means they will have to continue working in unsafe conditions to support their loved ones, potentially putting their otherwise healthy pregnancies at risk. These consequences are particularly devastating for single parents and low-income individuals.
Employees also need the time, space, and equipment to pump breast milk after giving birth. The Centers for Disease Control and Prevention (CDC) recommends breastfeeding as “one of the most highly effective preventive measures a mother can take to protect the health of her infant” and advocates for increased support for breastfeeding or pumping milk in the workplace. According to CDC data, most new mothers in the United States start out breastfeeding their babies, but only 25 percent are able to continue doing so exclusively until their children reach the age of six months. This is in part due to the lack of support in the workplace for lactating employees – in 2018, just 49 percent of employers provided their workers with a designated lactation space. With more support in the workplace for lactating individuals, more new parents would be able to feed their infants the way they want.
Pregnancy and childbirth sometimes necessitate adjustments to an employee’s duties or schedule. Pregnant and newly parenting workers should have access to the accommodations they need to maintain healthy pregnancies and care for their newborn children. Pregnancy and childbirth should not mark the end of someone’s career.
In addition to our work on pregnancy rights in the workplace, NARAL Pro-Choice Maryland advocates for the rights of pregnant individual in Maryland’s schools and correctional facilities. For more information, please see our resources, The Rights of Pregnant Youth in Maryland, and about the coalition, Reproductive Justice Inside.
The Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964, prohibits discrimination or harassment based on pregnancy in employment. This means that an employer cannot discriminate in hiring, firing, pay, promotions, benefits, or any other aspect of employment due to an employee’s pregnancy status. Benefits extended to employees on medical leave must also be extended to those on medical leave for pregnancy-related conditions. The PDA also requires employers to treat employees temporarily disabled due to pregnancy the same as they would those experiencing any other temporary disability; if the employer provides disability leave or light duty to employees with temporary disabilities, they must provide those same accommodations to pregnant employees who need it. The PDA, however, also allows employers to request a doctor’s statement describing a pregnant employee’s ability to work before paying sick benefits or granting leave requests.
Impairments caused by pregnancy (such as preeclampsia) may qualify as temporary disabilities under the Americans with Disabilities Act (ADA), thus requiring employers to provide reasonable accommodations for workers with those conditions, such as providing leave. Pregnancy itself, however, is not considered an impairment covered by the ADA, so federal law doesn’t guarantee pregnant workers reasonable accommodations.
Since the passage of the Patient Protection and Affordable Care Act in 2010, federal law has required employers to provide “reasonable break time” and a private space for employees to pump breast milk for up to one year after giving birth. Employers aren’t allowed to use bathrooms as lactation spaces, but other than that, there aren’t stringent requirements for the quality of the space or the equipment it contains. Employers also do not have to pay employees for time spent pumping milk. Additionally, hourly employees aren’t protected by this law, and employers with fewer than 50 employees can apply for an exemption if they claim providing these lactation accommodations would impose a hardship on them.
In 2013, the Maryland General Assembly passed the Reasonable Accommodations for Pregnant Workers Act with bipartisan support. That bill requires employers with 15 or more employees to provide reasonable accommodations to employees experiencing a disability due to pregnancy or childbirth, unless those accommodations would “impose an undue hardship” on the employer (Md. Code Ann. State Gov’t § 20-609). Those accommodations can include changing hours or duties or providing leave.
In 2020, Maryland began building on its existing protections for pregnant workers by passing SB0225/HB0523 State Personnel – Employee Accommodations – Pregnancy and Childbirth. This bill ensures that state employees who are pregnant or have recently given birth have access to reasonable accommodations. It also prohibits state employers from forcing pregnant employees to accept unfavorable work conditions, such as requiring them to take unpaid leave.
At the state level, Maryland has yet to pass legislation comprehensively protecting employees’ right to pump milk at work, but some progress has been made. In 2018, the General Assembly passed HB0306, a bill requiring state employers to provide unpaid break time and a designated, non-bathroom space for employees to pump milk. In 2019, the city of Baltimore enacted the Lactation Accommodations in the Workplace ordinance. This ordinance requires Baltimore employers with at least two employees to provide lactation accommodations for employees. These accommodations include unpaid break time and a private lactation space that isn’t a bathroom or closet. The ordinance requires lactation spaces to be safe and clean and have a lockable door, a place to sit, a surface to place equipment, an electrical outlet, a sink, and a refrigerator for storing breast milk. However, like under federal law, employers may apply for an exemption to this ordinance if it would impose an “undue hardship” on them, financially or otherwise.
In past legislative sessions, NARAL Pro-Choice Maryland has advocated for the passage of numerous bills to protect the safety and job security of pregnant workers. Most recently, in 2020, we supported the passage of SB0225/HB0523 State Personnel – Employee Accommodations – Pregnancy and Childbirth to protect the rights of pregnant state employees. Now, we’re advocating for similar protections for all other Maryland workers.
NARAL Pro-Choice Maryland is also working to improve access to lactation accommodations for workers. Statewide, we need a law similar to Baltimore’s Lactation Accommodations in the Workplace ordinance that will guarantee breastfeeding employees the time, space, and equipment they need to pump milk. We’re also advocating for accessible, well-equipped lactation spaces for parenting students in Maryland schools. In 2020, we supported HB1298, which would have required county boards of education to hire a coordinator for education of pregnant and parenting students, establish policies to support those students’ education and parenting goals, and designate high-quality lactation spaces in every school. No one should have to sacrifice a safe and comfortable pumping experience in order to keep their job or continue their education.
NARAL Pro-Choice Maryland is committed to fighting for policies that ensure that pregnant workers have the same rights and opportunities for professional advancement as their non-pregnant peers. We need to end the practice of punishing pregnant workers for their reproductive decisions.
Olivia Graziano, Policy and Legal Research Intern, 2020