The document summarizes employment law regarding pregnancy and related conditions discrimination. It discusses the Pregnancy Discrimination Act and related case law. It also covers accommodations required under the Americans with Disabilities Act, the Family and Medical Leave Act, sex stereotyping claims under Title VII, and relevant state laws in Virginia, DC, and Maryland.

1. Employment Law: Pregnancy and
Related Conditions Discrimination
FBA CLE
Tom Spiggle, Partner
The Spiggle Law Firm
tspiggle@spigglelaw.com
www.spigglelaw.com

2. Pregnancy Discrimination Act
• History of PDA
• Who is covered?
▫ Employee discriminated against because of or on the basis
of pregnancy, childbirth, or related medical conditions
▫ Employer: 15 or more persons
• Stating Your Prima Facie Case
▫ Membership in a protected class
▫ Adverse employment action
▫ Otherwise qualified for the position
▫ 4th Cir. - Replaced by someone outside of protected class
 Exception: Circumstances giving rise to an inference of
discrimination

3. ▫ Recent 4th Circuit case – Miles v. Dell, Inc., 429
F.3d 480 (4th Cir. 2005): Plaintiff filed suit after
being terminated from Dell, who replaced her with
a non-pregnant woman. The Court held that she
could establish a prima facie case of sex and
pregnancy discrimination even though her
replacement was in the same protected classes as
her.
 Brief discussion about how a woman is not
necessarily in the same protected class as another
woman who is pregnant.

4. PDA
• Young v. United Parcel Service, Inc., 135 S.Ct.
1338 (2015)
• Plaintiff sued her employer for not accommodating her
because her pregnant status excluded her from the
classes covered by its limited duty restriction. The
Court held that the plaintiff may proceed with her
argument under the PDA.
• Accommodations for conditions not covered by the
ADA

5. PDA cont.
• Question Post Young…
▫ Who are the “other persons not so affected but
similar in their ability or inability to work” to
which a plaintiff should make her comparison?

6. PDA cont.
• Litigation Tips
▫ File administrative charge!
▫ Focus on damages
 Lost wages
 Still at work?
▫ Mitigation
▫ Emotional Distress
▫ Liability
 Comparators
 ADA/PDA
▫ Look for available state claims, particularly ones with
no damage caps

7. PDA cont.
• Success Rates under PDA Litigation
▫ Worklife Law Report
 52% of Family Responsibilities cases prevail
 Caregivers in the Workplace: Family Responsibilities
Discrimination Litigation Update 2016
 http://worklifelaw.org/publications/Caregivers-in-the-
Workplace-FRD-update-2016.pdf

8. Breastfeeding and Expressing Breast
Milk at Work
• Is it a condition related to pregnancy?
▫ Recent case law says…
 Yes, EEOC v. Houston Funding II Ltd, 717 F.3d 425 (5th
Cir. 2013).
 Based on a plain language argument
 Yes, Allen-Brown v. District of Columbia, 174 F.Supp.3d
463 (D.D.C. 2016).
 Cites Houston Funding’s definition of a medical condition
 Yes, Gonzalez v. Marriott, Int’l, Inc., 142 F. Supp. 3d 961
(C.D. Cal. 2015).
 Relies in part on EEOC Guidance

9. Breastfeeding cont.
• Hicks v. City of Tuscaloosa, Alabama, 870 F.3d 1253 (11th 2017):
▫ Plaintiff brought a PDA claim based on her employer’s decision to
reassign her to the patrol division after learning of her pregnancy. The
Court held that the employer’s actions were in fact discriminatory, and
violated the PDA.
▫ Expressing milk by PDA
 Under the PDA, an employer is not required to provide “special
accommodations” for expressing milk. However, Tuscaloosa’s refusal to
provide the accommodation effectively caused Ms. Hicks’s constructive
discharge.
▫ Application of Young v. UPS
 The Court says that the plaintiff may prove discrimination by showing that
where the employer denied her request for an accommodation, it granted
the same to another similarly situated employee.

10. Breastfeeding cont.
• Right to pump breast milk under the ACA
• FLSA Amendment
▫ (r) Reasonable break time for nursing mothers
 (1) An employer shall provide—
 (A) a reasonable break time for an employee to express
breast milk for her nursing child for 1 year after the child's
birth each time such employee has need to express the milk;
and
 (B) a place, other than a bathroom, that is shielded from
view and free from intrusion from coworkers and the public,
which may be used by an employee to express breast milk.

11. Americans with Disabilities Act and
Workplace Accommodations
• Who is covered?
▫ Employee: “physical or mental impairment that
substantially limits a major life activity.”
 One or more major bodily systems
 You must also be qualified to perform the essential functions or
duties of a job, with or without reasonable accommodation
▫ Employer: 15 or more employees
• Stating Your Prima Facie Case
▫ Individual with a disability
▫ Not reasonably accommodated or experienced an adverse
employment action
▫ Plaintiff is otherwise qualified
▫ Circumstances giving rise to an inference of discrimination

12. ADA, cont.
▫ Coverage expanded under ADA-AAA (2008)
 Construe “disability” broadly
 “Regarded as” claims focus more on treatment by
employer because of an impairment, and less on the
employer’s belief about the nature of the impairment
 “Substantially limits” is construed more broadly, and
the requirement for limit to functionality is lower
 An episodic impairment or one in remission can be a
disability

13. ADA and Workplace Accommodations
• Good Faith Negotiations with Employees

14. ADA and Workplace Accommodations
• Doctor’s notes are key
▫ Worklifelaw.org

15. Family Medical Leave Act
• Background
▫ Who is Covered?
 Employee: completed at least 12 months of service
 Employer: 50 employees or more
▫ 12 weeks unpaid leave
▫ Legal Liability
 Interference
 Retaliation
▫ No requirement to file at the EEOC

16. FMLA
• Pregnancy specifically covered
▫ Family Medical Leave Act, 5 U.S.C. § 6382 – Leave
Requirement
 (a)(1) Subject to section 6383, an employee shall be
entitled to a total of 12 administrative workweeks of
leave during any 12-month period for one or more of
the following:
 (A) Because of the birth of a son or daughter of the
employee and in order to care for such son or
daughter…

17. Sex Stereotyping and Sex-Plus Claims
under Title VII
• Failure to act in accordance with sex stereotypes
• Requirements
▫ Same as under the PDA
 EEOC Filing
• Plaintiff is covered both before and after baby
arrives

18. Sex Stereotyping cont.
• Examples
▫ “Pregnant women should not work.”
▫ “A woman with children should not get a promotion to
a position that requires a lot of travel.”
▫ “A man should not take full paternity leave, even if the
company offers it.”

19. Sex Stereotyping cont.
• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
▫ Price Waterhouse withdrew the plaintiff from consideration for a
partnership position based partially on her conduct, which according to
some influential employees, was unbefitting a woman. The Court held
that sex-stereotyping could be the basis of a sex discrimination claim.
• After Price Waterhouse
▫ Jesperson v. Harrah’s Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006)
 Harrah’s enforced a new requirement that female employees wear
makeup, and the plaintiff refused. Harrah’s subsequently terminated her,
so she brought a claim under Title VII. The Court held that the policy was
not discriminatory as it did not place an unequal burden on female
employees.
▫ Lewis v. Hearltand Inns of America, LLC, 591 F.3d 1033 (8th Cir. 2010)
 The plaintiff sued her employer under Title VII, citing sex discrimination
based on her non-conformance to gender stereotypes. The Court holds
that summary judgment in favor of the defendant was improper.

20. Sex Stereotyping cont.
• Men too!
▫ Nichols v. Azteca Restaurant Enterprises, 256 F.3d
864 (9th Cir. 2001)
 The Court allows the plaintiff to assert a sex
discrimination claim based on gender stereotyping where
plaintiff’s coworkers frequently insulted him because of
his homosexuality.
▫ Wilson v. Cable News Network, Inc., 211 Cal. Rptr.3d
724 (Cal. Ct. App. 2016)
 Plaintiff who took five weeks paternity leave was later
terminated and brought suit under California’s Fair
Employment and Housing Act.

21. Sex Stereotyping cont.
• State protections vary greatly. Depending on the
jurisdiction, Plaintiff may have access to
discrimination claims based on:
▫ Sexual orientation (DC, MD)
▫ Marital status (DC, VA, MD)
▫ Gender Identity or Expression (DC, MD)
▫ Personal appearance (DC)

22. State Laws
• Virginia
▫ Human Rights Act
 Employer: 6 to 14 employees
 Bailey v. Scott-Gallagher, Inc., 480 S.E.2d 502 (Va.
1997).
 The plaintiff sued her former employer for wrongful
discharge. This case predates VHRA protection from gender
discrimination, so the Court allowed the plaintiff to bring the
case as a Bowman claim.
▫ “she had been terminated ‘because she was no longer
dependable since she had delivered a child . . . [her] place was
at home with her child; that babies get sick sometimes and
[she] would have to miss work to care for her child; and that
[Scott-Gallagher] needed someone more dependable.’ ”

23. State Laws
• Virginia
▫ Fairfax County Human Rights Ordinance
 Section 11-1-5. Unlawful practices - Employment.
▫ …(a) It shall be unlawful for any employer on the basis of age, race,
color, religion, sex, national origin, marital status, or disability:
▫ (1) To refuse to hire an individual for employment;
▫ (2) To discharge an employee;
▫ (3) To deny an employee any opportunity with respect to hiring, promotion,
tenure, apprenticeship, compensation, terms, upgrading, training programs,
or other conditions or privileges of employment; or
▫ (4) To prevent an individual from taking a competitive examination or
otherwise deny any benefits pertaining to the grading or processing of
applications with respect to any aspect of employment;
 Section 11-1-20. Non-exclusive remedy.
 Damages (Not Monetary!)
 Redress of injury
 Injunctive relief

24. State Laws
• D.C.
▫ D.C. Human Rights Act
 § 2-1401.11. Prohibitions.
 (a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly
or partially for a discriminatory reason based upon the actual or perceived: race, color, religion,
national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity
or expression, family responsibilities, genetic information, disability, matriculation, or political
affiliation of any individual
 (1) By an employer - To fail or refuse to hire, or to discharge, any individual; or otherwise to
discriminate against any individual, with respect to his compensation, terms, conditions, or privileges
of employment, including promotion; or to limit, segregate, or classify his employees in any way which
would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely
affect his status as an employee;
 Employer: at least one employee
▫ Protecting Pregnant Workers Fairness Act
 Effective: 2014
 Employer: at least one employee
 Scope: Covers pregnancy discrimination and accommodations
 Differs from federal law in that it REQUIRES employers to provide reasonable accommodations to an
employee whose ability to perform her job is limited by pregnancy, childbirth, a related medical
related condition, or breastfeeding.
▫ Applies regardless of the employer’s treatment of other employees with short term disabilities

25. State Laws
• Maryland
▫ Md. Code. State Government Title 20
 Employer: 15 or more employees
▫ Reasonable Accommodations for Disabilities Due
to Pregnancy
 State’s response to the Fourth Circuit’s ruling in
Young v. UPS.
 Effective October 1, 2013
 Mirrors the Young’s interpretation of the PDA

26. Web Resources
• www.worklifelaw.org
• Abetterbalance.org
• www.nwlc.org
• www.mwela.org
• www.nela.org