It’s critical to know your rights while pregnant and postpartum when working in the job force, mainly due to pregnancy discrimination. The good news? You might have more rights than you realize.
“I’m hiding my pregnancy from work for as long as possible because I’m worried about the reaction.” As a social worker specializing in supporting women through life transitions, I hear this sentiment all too often.
Workplace pregnancy discrimination has been unlawful in the United States since 1978, yet here we are 45 years later, in 2023, and fear of it remains. The bad news is that unfair treatment of women in the workplace, particularly of mothers, is still very real.
The good news is that you do have rights while pregnant and postpartum, and you are not alone in wanting to assert them. Here’s how you can.
Your workplace rights while pregnant
In general, here are some workplace rights while pregnant:
- While interviewing, it’s not legal to ask about your family planning status
- In companies with 15+ more employees (this number can vary by state), you may not be discriminated against based on pregnancy
- Wait to tell a potential employer that you’re expecting once you’re hired
- Share your pregnancy status with your employer in writing
- Write down and record any incidents you may experience
- Under PWFA, your employer must provide “reasonable accommodations” for breaks, appointments, job restrictions, etc.
Pregnant workers have legal protections against discrimination and rights to accommodation, yet those protections and rights are nuanced depending on where you live and work.
The Pregnancy Discrimination Act of 1978 (“PDA”), for example, is the federal law in the U.S. that states employers with 15 or more employees may not discriminate against employees or job applicants based on pregnancy or a pregnancy-related condition.
Under the PDA, discrimination is prohibited based on a current pregnancy, a past pregnancy, a potential or intended pregnancy, or medical conditions related to pregnancy or childbirth.
According to the U.S. Equal Employment Opportunity Commission, among other requirements, employers under this law should not inquire about a job candidate or an employee’s pregnancy status or family planning intentions. They must make hiring, promotion, and other employment decisions without regard to stereotypes or assumptions about women affected by pregnancy, childbirth, or related medical conditions.
Many states have additional protections and requirements (like Oregon, where the state’s law prohibiting pregnancy-related discrimination applies to all employers with six or more employees – not 15 as under the PDA).
Women feel anxious disclosing their pregnancy status
While illegal, discrimination can be hard to prove, so many women I know are anxious about how they’ll be treated at work once they reveal they’re pregnant. They worry – and we’ve seen that their concerns are, unfortunately, generally well-founded – that they will be perceived as less committed to the job and, as such, will not be given the same opportunities as their non-pregnant colleagues.
This kind of bias (often referred to as “the maternal wall” or “the motherhood penalty”) can affect a pregnant person even before she begins a job.
When to tell a potential company you’re pregnant while interviewing
So if you find yourself pregnant and applying for a new job, experts like California-based employment lawyer Daphne Delvaux (AKA @themamattorney) typically suggest accepting and signing a job offer and then disclosing your pregnancy.
As Delvaux has explained to HuffPost, once you disclose (which she recommends doing in writing), “‘if the employer rescinds the job or gives you a hard time, it will be easy to prove a causation.’”
In general, you should write down and keep a record of any incidents of potential discrimination or mistreatment, including the date and who was involved at your current or potential new job.
In June 2023, the PWFA is bringing more rights to pregnant and postpartum people in the United States
Being mistreated for your pregnancy status can feel incredibly frustrating and isolating. It is essential to seek support from loved ones and professionals, potentially including a lawyer, during your experience to alleviate stress and see if you can take legal action to remedy the situation.
You deserve to be treated fairly.
And you deserve to get what you need to be able to do your job while pregnant. Are you among the 1 in 4 American mothers who have considered leaving their job due to fear of discrimination from an employer or a lack of reasonable accommodations during a pregnancy?
Fortunately, as of June 27, 2023, pregnant employees will have more rights in the United States under the new civil rights law called the Pregnant Workers Fairness Act (“PWFA”).
Covered employers (private employers with at least 15 employees and government agencies) under the PWFA are required to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions unless that accommodation will cause the employer an “undue hardship.”
According to A Better Balance, a national nonprofit advocacy organization, examples of reasonable accommodations include help with manual labor or lifting, a temporary transfer to a less physically demanding position, additional or more extended breaks to hydrate, eat, rest, or use the bathroom, or flexible scheduling for prenatal medical appointments.
Given that these “reasonable accommodations” can be considered necessities for pregnant persons, the PWFA’s enactment is long overdue and very welcome to codify rights and ensure fair workplace opportunities for employees affected by pregnancy.
Workplace rights while postpartum and after birth
Workplace rights considerations after birth:
- There is no federal paid leave in the United States
- FMLA provides eligible employees up to 12 workweeks of unpaid leave/year
- It’s essential to research your local laws around leave
- PUMP for Mothers Nursing Act grants extended protection for lactating people
Americans widely support paid family and medical leave from work, including for postpartum parents, as the numerous benefits of paid parental leave have been proven repeatedly in my field of psychology, the business world, and beyond.
However, the United States has no federal paid leave policy – the only industrialized nation without one.
Only 11 states plus D.C. currently have paid family and medical leave laws on the books, and these laws vary widely in terms of what purposes the leave can be used for, who is covered, how many weeks are paid, and at what wages, and other requirements to qualify for benefits.
Some of my clients have heard of the Family and Medical Leave Act (“FMLA”), enacted in 1993, and assume they have some benefits and protections under it.
However, FMLA provides only eligible employees up to 12 workweeks of unpaid leave per year – and nearly 44% of U.S. workers do not qualify. It is, therefore, generally up to employers to fill the gap in supporting postpartum workers through private parental leave policies.
Research and know your rights before giving birth
You must understand your parental leave rights through your local government and your employer before your postpartum period begins so that you can plan accordingly, including completing the relevant paperwork within any deadlines.
If you are privileged to take a (much-deserved) parental leave to recover and bond with your baby, you may continue to have some workplace rights once you are back at work and postpartum.
PUMP for Nursing Mothers Act
For example, you may have rights as a lactating employee. As of April 28, 2023, when the PUMP for Nursing Mothers Act (“PUMP”) went into full effect (including its enforcement provision), almost all workers in the U.S. have the legal right to receive pumping breaks and access to clean, private space that is not a bathroom to express milk in the year following the birth of that employee’s child.
Per a Better Balance, special rules apply to certain rail carrier and motorcoach employees (unfortunately, airline flight crewmembers remain uncovered by the law); however, the PUMP Act is a massive win for postpartum employees overall, as it allows the ability to seek monetary remedies from non-compliant employers and reinforces the idea of respecting postpartum employees’ needs as a matter of public policy.
Get acquainted with your local laws
Whether a newly postpartum or a seasoned parent, you may have additional workplace rights depending on local laws.
While there remains no federal protection against workplace discrimination against caregivers, some jurisdictions, like New York City, have specific laws prohibiting unfair treatment of employees based on their caregiving responsibilities.
According to The Center for WorkLife Law, such laws promote economic, health, and gender equity, ensure workers are treated based on their job performance instead of bias, can improve caregiver mental health, and help close the gender wage gap.
Since recent research reflects that 73% of U.S. employees have some current caregiving responsibility (whether for a child, an elderly parent, or another adult family member), regulations like these will hopefully become increasingly the norm in all areas and workplaces.
Things to consider around parental workplace rights
Even if you do not intend to become pregnant any time soon, knowing your current or potential employer’s pregnancy, parental leave, and other caregiving policies is necessary.
Doing so will help you understand your workplace culture and determine if it is where you want to be when the time may come (family-friendly workplace policies support increased employee productivity, satisfaction, and retention; environments where pregnant and postpartum employees experience discrimination indeed do not!).
Being transparent about caregiving and pregnancy/postpartum needs normalizes having them. It puts less onus on the individual employee, who may more immediately need an accommodation or policy put in place.
Speak up (and talk to and with others whose values align) when you feel better policies and systems are needed to create a more inclusive work environment.
I eagerly await the day I usually hear: “I’m so excited to tell work that I’m pregnant! I have no doubt they’ll be supportive.”
In the meantime, we must continue to learn and teach others about what rights are currently available. Knowledge is power. And we must continue to advocate for better and broader laws that protect our workplace rights – and ultimately, our career paths, earning potential, mental health, and more.
We can collectively contribute to change to improve the workplace for all women, men, parents, and caregivers, including pregnant and postpartum employees.
Additional resources on workplace rights
- A Better Balance [workers interested in learning more about their rights or seeking help can call A Better Balance’s free, confidential legal helpline at 1-833-NEED-ABB (1-833-633-3222)]
- National Partnership for Women & Families
- The Mamattorney Academy, including a free Instagram Live conversation, “Know Your Rights: Navigating Maternity Leave, Pumping, & Pregnancy in the Workplace”
- Podcast episode: How to Advocate for Your Rights in the Workplace (While Protecting Your Mental Health)
Lauren A. Tetenbaum, LMSW, JD, PMH-C is a therapist certified in perinatal mental health, working parent coach, and mother of two. Her mission is to build community and connection, especially among working and new parents. A licensed social worker and attorney, she spent a decade in the legal industry supporting individuals facing various life transitions. Lauren currently uses her experience, empathy, and emotional intelligence to empower others through psychoeducational support groups and other counseling and consulting services. She is actively involved in numerous efforts benefitting at-risk families in her area in New York and abroad.