Most of us in the workforce understand the basics of pregnancy discrimination, even if we don’t know the specifics of the laws. Basically, we all understand that employers are not allowed to discriminate against a woman for getting pregnant, right? Pregnant women aren’t supposed to be fired or demoted or have responsibilities yanked away from them “because they’re going to be out for a while…,” right? Simple enough.
However, there are some pretty shocking gray areas in the law when it comes to surrogacy, parenting, and caregiving.
First, let’s look at the language of the basic federal laws that protect against pregnancy discrimination, namely the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA).
Title VII and the Pregnancy Discrimination Act (PDA)
Title VII (a/k/a “Title Seven”) was originally enacted as part of the Civil Rights Act of 1964. It put in place the now-familiar rules that employers cannot discriminate against employees on the basis of race, color, religion, sex, or national origin. In 1976, the Supreme Court ruled that “on the basis of sex” did not include any protections for pregnancy. In response, Congress enacted the Pregnancy Discrimination Act (the “PDA”) in 1978.
The PDA expanded the protections of Title VII to also prohibit employment discrimination on the basis of pregnancy, childbirth, or related medical conditions. However, the legislators chose some interesting language, specifically clarifying that Title VII prohibits discrimination “because of sex” or “on the basis of sex”, and defined this as follows:
“The terms “because of sex” or “on the basis of sex” include… because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.”
The Americans with Disabilities Act (ADA)
Before we look at the impact on pregnancy via surrogacy, it’s important to understand how the Pregnancy Discrimination Act works together with the Americans with Disabilities Act.
Similar to Title VII and pregnancy discrimination, most of us understand generally that employers are also not allowed to discriminate against employees with disabilities. But again, let’s look at the nuance of the specific language of the ADA and how it applies. First, who has a disability under the law? The legal definition of “a disability” under the ADA is much broader than many people realize. This is good. Under the ADA, a person is legally defined as disabled (and therefore protected by the ADA) in three situations: (1) if they have a physical or mental impairment that “substantially limits a major life activity,” (2) if they have a record of such impairment, and/or (3) if they are “regarded as” having such an impairment. Working is considered a “major life activity,” and therefore, this means that any medical condition that impacts your ability to work – to do your job – falls under the purview of ADA protections. So, you have a bad back and can’t sit for long periods? You’re covered by ADA protections. Anxiety? Depression? Covered. Your condition can also be temporary and still qualify you as legally disabled under the ADA. Having surgery? Injury? Chemotherapy? Treatment? Rehab? You’re most likely covered.
Under the ADA rules, if a person has a disability (again, any medical condition that impacts their ability to work), it is illegal for an employer to discriminate against them due to that disability. What does this mean in practice? If you have a disability, then you can’t be fired? Well, no. Not exactly. It means that if you are able to perform your job with a “reasonable accommodation,” then the employer is required to provide you with the “reasonable accommodation.”
Reasonable accommodations can be pretty much anything. It might be a restriction on how much a person can lift or carry. It might be a scheduling accommodation for someone to see their doctor or go to physical therapy. It might be limiting exposure to an environment or even a person that triggers someone’s medical condition (like anxiety or asthma). Or it might be providing a person with a sit-stand desk or allowing them to take breaks to move around. Work from home is a big one these days – many people, for many, many varieties of medical conditions, are requesting as an accommodation that they be allowed to work from home, either completely or more frequently, as employers are instituting return-to-office policies.
Every medical situation is unique, and therefore every “reasonable accommodation” may be unique. There are no bright-line rules about what is, or is not, a “reasonable accommodation.” In practice, the goal is to argue that the requested accommodation is as simple as possible, or “easy” for the employer to implement. If the employer decides they want to fight the employee on a requested accommodation, the onus is on them to come up with some argument as to why the requested accommodation would be disruptive to the company or overly onerous for the employer to implement. Employers like to use the phrase “undue hardship” when they want to fight a requested accommodation.
The Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) allows anyone who has worked for their employer for at least 12 months and 1,250 hours in the past year to take up to 12 weeks of leave (unpaid) so that they can take care of their own medical issue, or an immediate family member with a medical issue. Pregnancy, childbirth, and adoption are all events that qualify for FMLA protection.
FMLA is slightly different from Title VII / PDA and the ADA protections in that it primarily provides job protection for when a person returns from this leave. You can’t be demoted or fired. Your employer has to give you your job back. You also keep your employment while you are on FMLA leave (even if you are unpaid), meaning you keep your benefits such as health insurance. You are not “suspended.”
FMLA of course is very often used by women going through pregnancy. It’s a huge job protection. However, the biggest limitation of FMLA is that there is no clear rule for how long it protects your job. Most employers are savvy enough not to fire you the week after you get back from maternity or paternity leave. It gets more difficult to connect a demotion or a termination to FMLA retaliation the longer a person has been back.
How do these laws work together?
Now that you know the basics, common sense tells us that Title VII / PDA protections – that women “affected by pregnancy” cannot be discriminated against – are often going to flow simultaneously with ADA and FMLA protections. Obviously, pregnancy itself can impact a person’s ability to work, and pregnant individuals may need to request accommodations both during and after pregnancy (for example, requesting lactation breaks and lactation space is commonly presented as a post-pregnancy “accommodation request” if the employer was making life difficult for the new parent).
Today, most of the time, a woman who just had a baby is going to be covered by all three laws (and also usually similar state laws!).
But this wasn’t always the case. Until shockingly recently, it was unclear whether pregnancy was only protected by Title VII, or whether it was also a “medical condition” that deserved ADA protections.
The Supreme Court took this up in the case of Young v. United Parcel Service, Inc. (575 U.S. 206, March 25, 2015). In this case Peggy Young, a pregnant UPS driver who delivered packages, requested a 20-pound lift maximum as an accommodation during her pregnancy (noting that drivers are typically expected to lift up to 70 pounds by themselves). UPS initially denied this accommodation request, labelling it a “disability” request and arguing that Ms. Young wasn’t “disabled,” she was just pregnant.
UPS argued that it was fully compliant with federal laws because it allowed ADA accommodations to individuals who “suffered from a disability.” Horrifyingly, the lower court and appellate court agreed with UPS, stating in their opinion that, “UPS has crafted a pregnancy-blind policy… that is at least facially a neutral and legitimate business practice… and not evidence of UPS’s discriminatory animus toward pregnant workers.”
Let’s pause to reflect here for a moment that this Fourth Circuit appellate opinion was in 2013, not 1913.
Thankfully for all of us, the Supreme Court straightened out the rule. In the 2015 Young opinion, authored by Justice Breyer, the Supreme Court pointed out:
Before Congress passed the Pregnancy Discrimination Act, the EEOC issued guidance stating that “[d]isabilities caused or contributed to by pregnancy … are, for all job-related purposes, temporary disabilities” and that “the availability of … benefits and privileges … shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.”
Concurring, Justice Alito emphasized that the Pregnancy Discrimination Act language contains two separate and distinct clauses:
First clause: “…because of or on the basis of pregnancy, childbirth, or related medical conditions…”
Second clause: “… and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.”
Justice Alito pointed out that “the first clause of the PDA is alone sufficient to make it clear that an employer is guilty of an unlawful employment practice if it intentionally treats pregnant employees less favorably than others who are similar in their ability or inability to work…,” but also that “the second clause does not merely explain the first but adds a further requirement of equal treatment irrespective of intent.” Thus, the two clauses are each a potential separate, and standalone cause of action when analyzing claims for pregnancy discrimination, and together this means that employers are required to accommodate pregnant women, and those affected by related medical conditions, to the same extent that they accommodate other workers.
Now, this leaves an open question of what “because of or on the basis of pregnancy” or “affected by pregnancy” could mean in the context of surrogacy. It seems logical that a woman who carries a baby as a surrogate should protected, but this is surprisingly not yet fully clear. There is at least one case so far that agrees (Gonzales v. Marriott Int’l, Inc., 142 F. Supp. 3d 961 (C.D. Cal. 2015)), which held that Mary Gonzales, who gave birth as a surrogate mother, was protected and must be allowed an accommodation that she was entitled to lactation breaks. This case only exists because Mary Gonzales’s employer (Marriott) argued that she should not be allowed lactation breaks after a brief period because she had been a surrogate. Marriott argued that she was “not disabled” and was not feeding “a child at home.” The California District Court agreed with Ms. Gonzales, noting that she was “affected by pregnancy-related conditions” and therefore entitled to protections under the PDA. This gives us some information, but unfortunately the overall question of what protections surrogacy carrying mothers possess is still not fully answered. Even more unsure is what protections will be provided to employed women who use a surrogate to carry their children.
It’s an evolving legal landscape, but it’s going to be an interesting one as surrogacy becomes more accessible and common. The line between PDA protections and accommodations and ADA protections and accommodations can be very blurry. It’s difficult to draw a distinction between simply a medical condition, and a “medical condition related to pregnancy.” The courts are leaning toward agreeing that lactation accommodations are sufficiently “related to pregnancy,” but of course there are any number of other medical conditions that women may experience post-pregnancy.
However, theoretically, it will be difficult (or perhaps impossible) to assert such protections for a new mother who has a child, but the child was carried by a surrogate. Are these mothers completely unprotected under federal law from employment discrimination? Yes, new parents, including parents of surrogate or adopted children, are typically going to be protected by FMLA, but in practice this is often limited to job protection after the leave. The bigger question is going to be what on-the-job employment protections these new parents have, and not just around a leave.
Some courts are starting to approach whether Title VII protections should include “caregiver discrimination,” sometimes referred to as “sex-plus” discrimination. However, currently, Title VII does not contain any explicit protections for parents or caregivers, or clarity on whether “sex-plus” constitutes a separate cause of action under Title VII (remember, “sex” discrimination includes gender discrimination, which per the PDA now includes pregnancy. Thus, under the law, “sex” refers to gender which also refers to pregnancy. Our laws are wonderfully simple). Instead, employed parents have to look to a hodgepodge of FMLA and ADA rules to try to cobble together accommodation requests and discrimination protections.
All of this is to say that our employment legal landscape is constantly evolving. Hopefully in a good way!
If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call (203) 255-4150.
