Employee Survival Guide® - Surrogacy, Pregnancy Discrimination, and Navigating Employment Law Challenges: Employee Rights Unveiled

Episode Date: February 16, 2026

Comment on the Show by Sending Mark a Text Message.Are you aware that the legal protections for surrogate pregnancy mothers in the workplace remain shrouded in ambiguity? Join Mark Carey in this enlightening episode of the Employee Survival Guide®, where he navigates the intricate landscape of surrogacy pregnancy protections and pregnancy discrimination laws. As an employee, understanding your rights is crucial, especially in a world where discrimination can manifest in various forms—be it pregnancy discrimination, gender discrimination, or even retaliation. Mark dives deep into foundational laws like the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA), revealing how they intertwine to protect working women. However, the conversation doesn't stop there; he sheds light on the less-defined legal realm surrounding surrogacy pregnancy, a topic that often gets overshadowed in discussions about employee rights. Mark discusses landmark court cases such as Young v. United Parcel Service, which clarified protections for pregnant employees, and Gonzalez v. Maria International, which recognized the rights of surrogate mothers to request reasonable accommodations in the workplace. These cases highlight the ongoing legal challenges and ambiguities that surrogate mothers face, especially when it comes to workplace accommodations and potential discrimination. As the landscape of employment law evolves, it’s vital for employees to stay informed about their rights, particularly in the context of surrogacy pregnancy and caregiving. This episode is a must-listen for anyone navigating the complex world of employment law issues. Whether you’re dealing with workplace discrimination, negotiating severance packages, or simply trying to understand your rights as an employee, Mark's insights will empower you to advocate for yourself in the workplace. Tune in to discover how you can better equip yourself with the knowledge necessary to survive and thrive in your career. Don't let a hostile work environment or discrimination derail your professional journey—empower yourself with the Employee Survival Guide® and become an informed advocate for your rights!  If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts and Spotify. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer: For educational use only, not intended to be legal advice.

Hey, it's Mark here. Welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Welcome back. It's Mark. Today we're talking about surrogacy protections for women. Most of us in the workplace understand the basics of pregnancy discrimination,

even if we don't know the specifics of the laws. Basically, we understand that employers are not allowed to discriminate against women for getting pregnant, right? pregnant women aren't supposed to be fired or demoted or have responsibilities to yanked away from them because they're going to be out of the office 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 landscape of the language of the basic federal laws that protect against pregnancy discrimination, namely the Pregnancy Discrimination Act, the Americans Disabilities Act, and the Feminic Medical Leave Act. Title VII was originally enacted as part of the Civil Rights Act in 1964. It put in place the now familiar rules that employers cannot discriminate against employers

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 in 1978. The PDA expanded the protections of Title VII to also prohibit employment discrimination on the basis of pregnancy. childbirth, and 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 define 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. Thanks, Congress. 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 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 disability under the ADA is much broader than many people realize. Under the ADA, a person is legally defined as a disabled in three situations. One, if they have a physical or mental

impairment, that's substantial limits of major life activity. Think about like working. If they have a record of such impairment, think about having a long medical condition. And three, if they are regarded as having such impairment. Think about someone with AIDS or some condition and whether they have it or not, people are going to how they react to that. 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 the ADA protections. So if you have a bad back and can't sit for a long period, you're covered by the ADA. Anxiety, depression, covered. Your condition also can be temporary and still qualify you as legally disabled under the ADA, having surgery,

injury, chemotherapy, treatment, rehab for addiction, you're most likely covered. Under the ADA rules, if a person has a disability, 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 reasonable accommodations to do your job. What is a reasonable accommodation? It could 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 a physical therapy. It might be limiting exposure to an environment or even to a person.

And I've done this before. We've limited people to very toxic people. People can trigger people if they have a medical condition like anxiety or asthma. Think of perfumes. Or it might be providing a person with a standing desk or allowing them to take breaks to move around. Work from home is a big one these days. Many people or many, many variety 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 condition and 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 and burdens on the employer 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, quote unquote, undo hardship when they want to fight a requested accommodation. It's a very broad term covering a lot of areas. Now, let's move to the FMLA.

The FMLA, the FMM of Medical Ev Act, allows anyone who has worked for their employer for at least 12 months and 12, 150 hours in the past year. That's a continuous ruling 12 months, by the way, 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. Parenthood, childbirth, and adoption are all events that qualify for FMLA protection. FMLA is slightly different from Title VII, the PDA and the ADA protections in that it primarily provides job protection for when a person returns from this leave. You can't be demotive or fired. your employer has to give you your job back, keep your employment while you are on FMLA, even though it's 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 the FMLA is that there's no clear rule for how long it protects you after you return to work. Most employers are savvy enough to not fire you the week after you get back from your maternity leave, however, I've had cases where, in fact, they were fired one week after returning from leave. In those cases, usually subtle. It gets more difficult to connect a demotion or termination to FMLA retaliation, the longer a person has been back from their leave. Next, now that you know

the basics common sense tells us the Title VII, the PDA and protections, that women, quote, are affected by pregnancy cannot be discriminated against, are often going to flow simultaneously, concurrently with the ADA and FMLA. Obviously, pregnancy itself can impact a person's ability to work and pregnant individuals may need to request accommodations both during and after pregnancy. And there are accommodations for the PDA for pregnancy under the PDA, the Pregnancy Discrimination Act. For example, requesting lactation breaks and lactation space is commonly presented as a post-pregnancy accommodation request if the employer was making it life difficult for the new parent. Today, a woman who just had a baby is going to be covered by all three laws and also usually similar state laws, which can be more protectionary of the employee.

But this wasn't always the case. Until recently, it was unclear whether pregnancy was only protected by 10 or whether it was also a medical condition that deserved ADA protections. The Supreme Court addressed this issue in a March 2015 case of Young v. Senate United Parcel Service. In that case, a young, a pregnant UPS driver who delivered packages, requested a 20-pound lifting restriction as an accommodation during her pregnancy. UPS drivers are normally expected to lift up to 70 pounds. UPS initially denied this accommodation request labeling it as 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.

the lower court and appellate courts agreed with UPS, holding 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 towards pregnant workers. Much of nonsense. Thankfully, for all of us, the Supreme Court, straighten that out in the 2015 Young decision, author by Justice Breyer, the Supreme Court pointed out, before Congress passed the Pregnacy Discrimination Act, The EEOC issued guidance, that's Equal Employment Opportunity Commission, stating that disabilities caused or contributed to bi-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. In a concurring opinion, Justice Alito emphasized that the Pregnancy Discrimination Act language contains two separate and distinct clauses. First, because of or on the basis of pregnancy, childbirth, related medical conditions, and second, 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 any employer is guilty of 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 irrespect of intent. Thus, the two clauses are each a potent, separate, and a standalone cause of action when analyzing claims for pregnancy discrimination. And together, this means that employers are required to accommodate pregnant women, of course, and those affected by related medical conditions to the same extent they accommodate other words. 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 pregnancy. It seems logical that a

woman who carries a baby as a surrogate should be protected, but this is surprisingly not yet fully clear. There is at least one case so far that agrees. The Gonzalez v. Mary an international case in California, 15, which held that Mary Gonzalez, who gave birth to the surrogate, mother was protected and must be allowed in accommodation that she was either was entitled to for lactation breaks. This case only exists because Mary Gonzalez's employer, Marriott argued that she should not be allowed to take 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. Gonzalez, 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 employer, who use surrogate to carry their children. It's an evolving legal landscape, but it's going to be an interesting one as surrogacy becomes more common and accessible in the United States. The line between the PA 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 a pregnancy. The courts

are leaning towards 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 killed. carried by a surrogate. Are these comp 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 the FMLA, but in practice, this is often limited to job protection after the leave. The bigger question is going to be on what on the job employment

protections these new parents have and not just around a leave. Some courts are still starting to approach whether Title VII protections should include caregiving 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 plus or 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. No, they're not. 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 this is to say that our employment legal landscape is constantly evolving, hopefully in a good way. Thank you for Al-BBB service. Hey, it's Mark, and thank you for listening to this episode of the Employees' Fibaba Guide. If you'd like to be interviewed for our podcast and share your story about what you're going through at work and do so anonymously, please send me an email. at m c-A-R-E-Y at c-A-P-C-Law.com.

And also, if you like this podcast episode and others like it, please leave us a review. It really does help others find this podcast. So leave a review on Apple or Spotify or wherever you listen to this podcast. Thank you very much. And I'm glad to be a service to you.