Title VII defines “sex” to include pregnancy and childbirth as a form of sex discrimination.  Testing women for pregnancy or fertility is “sex” discrimination where the testing effectively discourages female or pregnant applicants.  Norman Blood Saw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998).  Regular or pervasive inquiries about whether female employees are pregnant or about a woman’s childbearing and child care plans may create a hostile environment for women. Walsh v. National Computer Systems, Inc. 332 F.3d 1150 (8th Cir. 2003).  While a single inquiry about child bearing or child care plans asked of all applicants is not facially proscribed, asking such questions of women, but not men, will result in an inference of sex discrimination if the female applicant is not offered employment.

The Pregnancy Discrimination Act of 1978

To amend Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy.

That section 701 of the Civil Rights Act of 1964 is amended by adding at the end thereof the following new subsection:

“(k) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.”