ABA Family Legal Guide

Law and the Workplace

On the Job

Discrimination Based on Gender

When an employee takes time off to give birth to a child, will she get her old job back?

Title VII does not require the employer to provide either paid or unpaid leaves of absence with rights of reinstatement for pregnancy. What Title VII does require is that the employer treat absences due to pregnancy the same as it treats absences due to any other medical condition. For example, if an employer's leave policy provides for time off when employees are unable to work due to medical conditions, a worker unable to work due to pregnancy has the same right to time off as a worker unable to work due to a broken leg. The duration of any leave time also depends on the employer's policy. Thus, if the employer provides two weeks of medical leave per year, a pregnant employee would be entitled to her job back so long as her leave did not exceed two weeks. This basic principle of equal treatment applies to other decisions regarding the pregnant worker. If disabled workers are paid while on disability leave, the pregnant employee must be paid. If an employer requires that all employees submit a doctor's statement regarding their inability to work in order to be eligible for leave, then the employer may require the pregnant worker to submit such a statement.

Of course, if the employer meets the coverage requirements for the Family and Medical Leave Act (FMLA), then the employer must provide twelve weeks of unpaid leave per year for serious medical conditions, including pregnancy and childbirth. The FMLA also entitles a worker to her old job or to a substantially equivalent job after her maternity leave, regardless of how an employer treats other workers who are absent from work for other causes (see the discussion of the FMLA below).

Discrimination Based on Pregnancy

In 1978, Congress passed the Pregnancy Discrimination Act, amending Title VII so that the prohibition against sex discrimination includes discrimination because of pregnancy, childbirth, and related medical conditions. Thus, an employer cannot base employment decisions on the fact that a worker is pregnant. Moreover, the employer must treat pregnancy in the same way as it would treat any other non-work-related employee medical condition.