Know Your Rights. Make a Paper Trail. Take no Shit!
Pregnancy discrimination is one of the most common reasons I see people get illegally fired. This article will give you a quick explanation of what rights you have, how to enforce them, and what it takes to win compensation if your employer breaks the rules.
Important: This article is NOT just for moms! Please share with dads, parents, siblings, and coworkers, because knowing the rules will help YOU be a better advocate for someone you care about.
Broadly speaking, pregnancy rights at work fall into three categories:
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Anti-discrimination
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Accommodation
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Protected leave
We will talk about all three, but first, let’s talk about the Mommy Issues case.
Attorney Ryan v. Mommy Issues
My client, Amanda, worked at a fast food restaurant. When she found out she was pregnant, she was excited, but also nervous. Her manager, Gus, had a reputation for bullying pregnant employees. One woman was forced to resign because Gus didn’t want to give her maternity leave. Another quit because Gus wouldn’t stop staring at her when she started showing.
Some said he had mommy issues, others said he just hated women—especially pregnant women.
So, Amanda decided to tell her coworkers, but not Gus. Her reasoning was that she would hide the pregnancy for as long as possible to protect her job.
But the rumor mill got away from her. One day at work, Gus called Amanda to his office. It was a pitifully small room at the back of the store; so small that Amanda cringed from Gus’s coffee breath as he closed the door.
“Do you have something to tell me?” He said without a smile.
“What do you mean?” Amanda replied.
“I know you’re pregnant,” Gus said. “I know and I’m wondering when you were planning to tell me.”
“I was going—
“Don’t bullshit me,” Gus said, his sour coffee breath filling the room like a cloud. “I’m not stupid. I heard you’ve been telling everyone. So when were you gonna spring this on me?”
Amanda couldn’t hide how offended she was. “It’s no one’s business.”
“It’s my business when you take advantage of me!” Gus barked. “I guess you expect special treatment now? Is that what you want?”
“I just want to work. Can I just go back to work please?”
Amanda was excused, but the cat was already out of the bag. Three weeks later she was fired for “attitude problems,” but of course that was a lie.
We proved it, and we got Amanda a great result on this case. But there were huge mistakes made that you can learn from.
Lesson’s from Amanda’s case:
1. Disclose pregnancies early, in writing. This establishes your legally protected status.
2. Tell management first, then your coworkers. This way they can’t ambush you like Gus did to Amanda.
3. Request accommodations and leave early so you have time to plan!
4. Accommodations for pregnancy are NOT “special treatment.” Rather, they remove barriers to EQUAL treatment!
Discrimination
Amanda made the first and most crucial mistake pregnant employees often make—not disclosing the pregnancy.
It’s a simple act of self-preservation.
Even in an At Will state, pregnancy discrimination is illegal. But employers are not liable for discrimination if they didn’t know you were pregnant. By announcing the pregnancy in writing, you establish a paper trail that shows you were pregnant. It also makes it impossible for the employer to deny they knew.
Here is a sample email I wish Amanda had sent. You can also do this via text or a good old fashioned written letter. The key is to date it and keep a copy!
Sample Email: Announcing Your Pregnancy
Dear Gus,
I am happy to announce I am pregnant. My expected due date is [DATE]. I can still do my job, but I would like to discuss reasonable accommodations to help me work while pregnant. My goal is to protect my health and the health of my baby.
Please let me know when we can discuss this further.
Respectfully,
Amanda
Announcing your pregnancy feels scary but disclosing it in writing is the best move. Because here’s a reality check: some bosses will fire you the minute they suspect you are pregnant anyway. If you don’t have a paper trail because you hoped they wouldn’t notice, then you are in way worse shape than you would have been if you had some proof!
Pregnant Workers Fairness Act
In 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA). The PWFA applies to most private employers of 15+ workers, and most government employers of any size.
The PWFA requires reasonable accommodations for pregnant employees. Before the PWFA, these accommodations were typically available only for employees with a “difficult” pregnancy. But the new(ish) PWFA applies even if your pregnancy is “normal.”
In short, the PWFA gives you the right to request reasonable accommodations, to be free of harassment while using them, and it protects you from retaliation.
Examples of Reasonable Accommodation
Extra time for bathroom breaks
Seating at or near your work station
Modified schedules for doctor’s visits
Allowing you to have water at your work station
Remote work, modified work stations, or closer parking
Being excused from heavy lifting
All these are just examples, and your accommodation could be different. But here is an insider tip: you should request accommodations even if you aren’t sure if you need them.
Why?
First, pregnancy is a taxing experience for your body. Anything you can do to reduce your risk of illness or injury is a good idea.
Second, requesting accommodations is a protected activity. If you have a “Gus” for a boss, a paper trail requesting accommodations makes it harder to illegally discriminate against you.
Here is a sample email you can use to request accommodations. Personally, I recommend getting a doctor’s input first, but it’s not strictly required.
Watch Out: Employers are not required to provide an accommodation if doing so would cause an undue hardship. Simply saying your accommodation causes a hardship doesn’t make it so—they have to prove it. But it’s a common tactic I see employer use to weasel out of helping you.
So how do you make a paper trail to protect yourself? Here’s a sample:
Sample Email: Requesting Accommodations for Pregnancy
Dear Boss,
I am pleased to inform you I am pregnant. I can still do my job, but I need reasonable accommodations (as required by the PWFA) to help protect my health and the health of my baby.
When can we begin the interactive process to find a reasonable accommodation that works best for everyone?
Respectfully,
Employee
This email establishes that you are pregnant, if you have not done so already. It also reminds the employer of their obligation under federal law. Finally, it requests interactive process.
Pro Tip: Interactive process is an informal discussion between you and your employer about ways to accommodate you. Keep the conversation going so they can’t just say “Oh well, we tried, but it’s an undue hardship so you are fired.”
If they try to scream “undue hardship,” then your next move is to tell them you want to “continue the interactive process.”
Maternity Leave
The United States is one of the only “developed nations” that does not guarantee paid maternity leave. This is a tragedy, but we have to work with the laws we have. Your employer might offer paid leave options. Some states, like California, offer state-sponsored paid leave.
But for most employees in the U.S., unpaid (but job-protected) leave is your only option.
Federal Family and Medical Leave Act (FMLA)
The FMLA gives qualified employees up to 12 weeks of unpaid, but job-protected leave. This is the most common way U.S. employees get “maternity leave” to give birth and bond with their baby.
You can take the leave all at once, or use it intermittently.
You qualify for FMLA when you meet all 3 requirements:
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Your employer has at least 50+ workers (some states have laws that apply to smaller employers)
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You worked at least 12 months AND 1,250 hours.
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You have a qualifying condition (Pregnancy and childbirth count).
It is illegal to retaliate or interfere with your FMLA. The key, like most things in this article, is to make a paper trail.
Sample Email: Requesting FMLA Leave
Dear Boss:
I am happy to announce I am pregnant. I would like to request FMLA leave, starting on DATE with an expected return date of DATE.
I am able to work normally until that time, and I am ready to cooperate with any transition needs while I prepare for leave. When I return, I look forward to resuming my full normal duties.
Respectfully
Employee
Remember that you must be restored to the same or substantially similar role when you return. If your employer tries to fire you, or demote you, or just refuses to let you return, then it’s time to talk to a lawyer.
This is a high-level overview of your rights as a pregnant employee. It’s not legal advice for any specific situation. In future articles, I will take a deeper dive into the details of some of these rights. If you’d like to stay in the loop, please consider becoming a free subscriber or paid sponsor.
