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ANALYSIS: Bump in Pregnancy Filings Continues in 2021

July 9, 2021, 9:01 AM

Six months ago, we looked into federal pregnancy discrimination lawsuits and found that the number of filings rose steadily between 2016 and the end of 2020, and accelerated last year, despite the pandemic and declining birth rates.

Halfway through 2021, we’ve checked back in on the data, and the number of filings keeps rising.

Filings Rise, Charges Fall

This time around, we split the analysis into first-half/second-half periods to gauge any uptick in the number of federal pregnancy discrimination filings so far in 2021.

According to Bloomberg Law Dockets, 2021 edged out last year to set a new record for first-half filings, while both 2020 and 2021 have more than double the number of first-half filings than the 2016 starting point for this analysis.

There was also a year-over-year increase in the number of second-half filings from 2016 through 2020. And, more filings occurred during the second half of each year than during the first half. If those trends continue, 2021 would set the new record for total-year filings.

The uptick in federal lawsuits is particularly striking given the steady decline in pregnancy discrimination charges filed with the EEOC over the 2016–2020 period, though the EEOC’s data does not include charges that were dual-filed with a state agency.

Employers should be prepared for the pace of federal filings to accelerate as more employees return to the office, especially if new federal pregnancy legislation becomes law.

RTO Complications, Expanding Protections?

As an increasing number of employees return to the office, employers will face complicated issues that may spur additional claims of pregnancy discrimination, including vaccine mandates, hybrid schedules, and workplace accommodation requests. Indeed, the EEOC’s Covid-19 FAQs include specific guidance about vaccinations, pregnant employees, and their rights under Title VII, as amended by the Pregnancy Discrimination Act, and the ADA. Employers must also navigate state and local laws protecting pregnant workers from discrimination.

Employers should also keep a close eye on a bipartisan bill that would expand pregnancy accommodations and protections at the federal level, arming employees with additional grounds for filing suit. The Pregnant Workers Fairness Act moved to the Senate after passing in the House in May and has support from the White House.

Risk-Mitigation Measures

The long-term, upward trend in federal pregnancy discrimination litigation only tells part of the story because pregnancy discrimination claims can be resolved by the EEOC or state agencies, and cases can also be filed in state court.

But the trend by itself should be enough to convince employers to ensure their employment policies are up to date, train managers on how to respond to pregnancy accommodation requests, and stay on top of the latest federal, state, and local legal developments.

Bloomberg Law subscribers can find related content on our New and Expecting Parents page.

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