You may know that federal law prohibits an employer or prospective employer from treating an employee or prospective employee differently because she is pregnant. But can an employer maintain a list of employees it knows to be pregnant? As with many other issues in employment law, the permissibility of such a practice likely depends on the circumstances, the intent, and the manner in which the list is maintained and distributed.
Pregnancy Discrimination Law
Discrimination based on pregnancy, childbirth, or pregnancy-related medical conditions is illegal under the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964. Title VII applies to most employers with 15 or more employees, including federal, state, and local governments, public and private colleges and universities, employment agencies, and labor organizations.
Under the PDA, employers must treat women affected by pregnancy or pregnancy-related conditions in the same manner as similarly-abled (or similarly impaired) applicants or employees. This means that as long as a woman is able to perform the essential functions of a job with or without accommodation an employer cannot refuse to hire, terminate, fail to promote, lay off, deny benefits, or otherwise treat her differently if she is pregnant, plans to become pregnant, or has a pregnancy-related condition.
Title VII also forbids employers from retaliating against any person who complains about pregnancy discrimination (against themselves or anyone else), or for participating in an investigation, proceeding, or hearing related to an allegation of pregnancy-related discrimination.
Disclosing or Reporting Pregnancy to an Employer
An employee has no obligation to tell an employer she is pregnant if it does not affect her work and she does not intend to take leave, request accommodation, or otherwise avail herself of the protection of the laws or company parental benefits. An employee whose work is performed entirely remotely or who works for an employer on a piecemeal or freelance basis, for example, may never need or choose to disclose a pregnancy to her employer.
On the other hand, in most pregnancies a woman's condition becomes noticeable and apparent without any necessary inquiry or disclosure. For women who work with others in an office environment, it's difficult to hide a pregnancy even if they would wish to do so; many other women choose to share the news with co-workers and management.
When Lists Are Not Permissible
Overt discrimination based on pregnancy is illegal. However, pregnancy discrimination sometimes takes on more subtle forms. Laws prohibiting pregnancy discrimination include discrimination intended for the supposed benefit of pregnant individuals (so-called "benevolent discrimination").
For example, an employer cannot force you to stop working and take pregnancy leave at any time during your pregnancy if you are still willing and able to perform your job. An employer also cannot require you to take accommodations you do not want, such as light-duty work, restricted access to hazardous materials, or a reduced schedule. An employer may not single out pregnancy-related conditions for special procedures to determine your ability to work (e.g., requiring all pregnant employees to undergo some sort of testing) but may use any procedure used to screen other employees' ability to work (e.g., periodic fitness or competency exams, drug testing, etc.). Accordingly, an employer may not maintain lists of pregnant employees to facilitate any of these purposes, or to otherwise facilitate differential treatment of pregnant employees.
When Lists May Be Permissible
There are a few possible situations in which an employer could prepare or maintain a list of employees suspected or known to be pregnant without an articulated legal reason.
The Americans with Disabilities Act contains certain exceptions to the general rules of confidentiality related to medical conditions. One such exception allows an employer to disclose an employee's medical information that is otherwise confidential under the ADA to supervisors and managers where they need that information to provide a reasonable accommodation or to meet the employee's work restrictions. Therefore, an employer's HR department would most likely be allowed to maintain a list of pregnant women and their work restrictions, for the purpose of providing the necessary information for each individual to managers or supervisors so they can make accommodations, and to assist the employer to remain in compliance with the law. However, providing an overbroad list of all pregnant women (and their requested restrictions/accommodations) to a broader swath of workers than specifically necessary would likely be a violation of the women's rights to privacy in their health information.
Similarly, there may be other valid, non-discriminatory reasons to keep a list of pregnant employees who have asked for scheduling accommodations or leave, such as planning for staffing levels and staffing assignments. This may be necessary for HR to ensure the proper paperwork is filed so they may receive appropriate benefits, for the scheduling department or manager to know when they will be on leave, and to ensure they are paid correctly through the payroll department. However, like any other protected health information, a pregnant employee's privacy should be maintained unless it is necessary to disclose her condition. Any such schedule or list should be distributed and available only on a need-to-know basis to necessary individuals, who should be notified of its protected private nature.
While the PDA merely prohibits discrimination, many U.S. states and the District of Columbia have passed laws requiring employers to affirmatively accommodate pregnant workers and new mothers, according to the National Women's Law Center. These laws require that employers offer and allow accommodations like rest breaks, transfer to safer or less strenuous jobs, light duty, breaks to express breast milk, and more to pregnant or nursing mothers. Keeping a list of employees who are eligible for or have requested such accommodations would likely be permissible and in compliance with these laws, so long as the lists were not used for any form of workplace discrimination or retaliation.
What to Do If You've Been Subjected to Pregnancy Discrimination
If you believe you have been discriminated or retaliated against as a result of your pregnancy or pregnancy-related condition, you may be able to file a claim with the EEOC. Your employer will be notified that you have filed a discrimination charge and the EEOC will begin an investigation. Following the investigation and resolution of your claim, you may have the opportunity to pursue other legal remedies under state or federal laws.
Time is of the essence, however; claims with the EEOC under the PDA (Title VII) must be filed within 180 days (six months) of the date of the allegedly discriminatory activity. Other state and federal claims may have different statutes of limitations and requirements. Although it is not necessary to hire an attorney to pursue an EEOC claim, experienced counsel can help you explore and preserve your ability to pursue all avenues for appropriate compensation in a timely manner.
For more information regarding the Pregnancy Discrimination Act and how it protects working women, please watch this video featuring Outten & Golden partner Cara Greene.