A Practitioner’s Guide to Pregnancy Discrimination Claims in Virginia for 2025

Let’s be honest: employment law for pregnant workers and caregivers constantly shifts. For Virginia practitioners, staying on top of the latest developments isn’t just good practice; it’s essential to effectively fighting for our clients.

As we move through 2025, we see an increasingly complex mix of established state laws and recent federal enactments, most notably the Pregnant Workers Fairness Act (PWFA). Knowing the basics is no longer enough. Practitioners need a sophisticated, integrated approach to identify viable claims and build a robust case for clients.

Virginia’s Foundation: The VHRA and Its Powerful Protections

Virginia is committed to protecting pregnant workers, which goes beyond just mirroring federal law. The Virginia Human Rights Act (VHRA), especially Virginia Code Section 2.2-3909, is the heart of this protection. Since it took effect on July 1, 2020, this law has dramatically expanded the rights of pregnant employees throughout the Commonwealth.

A key advantage of the VHRA is its broad reach. It requires employers with as few as five employees to provide reasonable office or workplace accommodations for a worker’s known limitations which are related to the situations like pregnancy, childbirth, or related medical conditions, including lactation. This is a critical distinction, as it covers many smaller businesses exempt from some federal statutes.

The law is also quite specific about what constitutes a reasonable accommodation. We’re not talking about vague ideas here. The statute explicitly lists examples like:

1. More frequent or more prolonged breaks, including expressing breast milk in a private location that isn’t a bathroom.
2. Getting or modifying company equipment, or adjusting an employee’s seating.
3. A temporary transfer to a less physically strenuous or hazardous position.
4. Assistance with certain manual labor tasks.
5. Job restructuring or a modified work schedule.
6. Taking leave to recover from childbirth.

Central to Virginia’s framework is the interactive process. This is a mandatory, good-faith dialogue between employer and employee to figure out a workable accommodation. An employer can’t just deny a request out of hand. They must engage in this conversation and explore alternatives if the initial request presents an undue hardship.

What’s more, Virginia law clearly states what employers can’t do. They can’t take adverse action—like firing or demoting someone—for requesting an accommodation. They also can’t force an employee to take leave if another reasonable accommodation would allow them to keep working. This prohibition on forced leave is a big deal, and it’s a powerful tool for preventing employers from unnecessarily sidelining new parents.

One subtle but impactful difference that often gives Virginia law an edge is its handling of the undue hardship defense. The VHRA creates a rebuttable presumption that an accommodation does not cause any undue hardship if the employer has provided accommodations similar to those of other employees. This shifts the burden, making it much more challenging for an employer to deny an accommodation in certain situations.

The New Kid on the Block: The Pregnant Workers Fairness Act (PWFA)

The federal landscape changed dramatically with the enactment of the PWFA on June 27, 2023. This law establishes a nationwide right to reasonable accommodations for pregnant workers. The EEOC’s final regulations, which became effective on June 18, 2024, now provide the detailed guidance we need to implement the PWFA.

The PWFA applies to those US employers with 15 or more employees, and it’s a game-changer, mainly because it redefines a qualified individual. Unlike the Americans with Disabilities Act (ADA), a pregnant employee is considered qualified under the PWFA even if temporarily unable to perform an essential job function. This is a massive expansion of protection! The three key conditions are:

1. The inability to perform the particular essential function is deemed temporary.
2. The employee can perform the essential function reasonably in the near future.
3. The temporary failure can be reasonably accommodated.

For a current pregnancy, the phrase in the near future is generally defined as up to 40 weeks. The PWFA’s undue hardship defense is similar to the ADA’s significant difficulty or expense standard. However, the EEOC’s regulations clarify that simple, common-sense accommodations—like allowing water access, extra breaks, or light lifting—will rarely meet this standard. This sets a high bar for employers trying to avoid providing basic support.

The Lawyer’s Challenge: Navigating Overlapping Protections

So, what happens when you have both the VHRA and the PWFA? For Virginia practitioners, the answer lies in a skillful negotiation of their overlapping, yet distinct, provisions. The guiding principle is simple: we apply the law that offers the most protection to the client.

For example, a client who works for a company with 5-14 employees is covered by the VHRA but not the PWFA. If they work for a company with 15 or more employees, they are protected by both. In this scenario, we must weigh which statute provides more expansive rights or a more favorable enforcement mechanism. The VHRA’s lower employee threshold and its unique rebuttable presumption on undue hardship are often powerful tools.

Of course, we can’t forget about other critical federal laws. Title VII of the groundbreaking Civil Rights Act of 1964, as was amended by the Pregnancy Discrimination Act (PDA), specifically prohibits discrimination based on pregnancy as a form of sex discrimination. While the PDA focuses more on treating pregnant workers on par with the company’s other employees with similar abilities, it’s a crucial legal basis, and often works hand-in-hand with the accommodation statutes.

And what about the ADA? While pregnancy itself isn’t a disability under the ADA, complications like gestational diabetes or preeclampsia often are. In these cases, the ADA’s reasonable accommodation framework can offer another path to relief. Our job is to evaluate all potential statutory bases to protect our clients.

Recognizing Actionable Discrimination: Common Claims and Scenarios

Knowing the legal framework is one thing; spotting a viable claim is another. Here are some of the most common scenarios we see in pregnancy discrimination cases:

1. Denied Light Duty: An employer denies light duty to a pregnant employee, even though they routinely provide it to other workers with temporary injuries or illnesses. This is a classic example of disparate treatment, a clear violation of the VHRA and the PWFA.
2. Forced Leave: The employer pressures employees to take unpaid leave when a simple accommodation would have allowed them to keep working. Virginia and federal law clearly state that this is a no-go.
3. Retaliation for Accommodations: A client requests an accommodation, and suddenly their performance reviews take a nosedive, they get a demotion, or they are fired. The timing of the adverse action is often the most compelling evidence.
4. Hiring or Promotion Bias: An employer refuses to hire an applicant or denies a promotion to an employee because the applicant is pregnant or because of sex-based stereotypes about their ability to work while pregnant or as a new parent. Direct statements like, We can’t promote you because of the risk of maternity leave are golden evidence.
5. Subtle Discrimination: This is often harder to prove, but just as real. It can look like increased scrutiny, unfounded negative performance reviews, or being excluded from essential projects after a pregnancy is announced.

When clients face these complex and deeply personal workplace challenges, they need a firm that truly understands these nuances. Firms like Sanford Heisler Sharp McKnight have a distinguished track record of representing plaintiffs who sue for gender discrimination, including those intertwined with pregnancy and caregiver status. Their deep expertise in these intersecting areas makes them a formidable advocate for employees seeking justice.

Building a Strong Case: Evidence is Everything

To advocate effectively, we need to be meticulous. Building a strong case requires a strategic approach to evidence. Here’s a quick checklist for practitioners:

1. Document Everything: Get all written requests for accommodation, emails, and formal forms that the employee submitted.
2. Employer’s Responses: Collect all communications from the employer, including any denials, counteroffers, or proposals.
3. Medical Documentation: Gather the physician’s notes or other medical records detailing the employee’s limitations.
4. Comparative Evidence: This is crucial. Get information on how other employees with temporary medical conditions were treated. Did they get light duty? Did they get a modified schedule? This is how you prove disparate treatment.
5. Adverse Action Records: Termination letters, disciplinary notices, demotion papers—whatever documents the employer’s adverse actions.
6. Witness Statements: Talk to colleagues or supervisors who saw discriminatory conduct or heard inappropriate remarks.
7. Company Policies: Review the employee handbook, accommodation, and leave policies. Sometimes the employer’s policies will contradict their actions.

We must stress to our clients the importance of documenting everything as it happens. A detailed log of communications and incidents is a powerful asset.

Anticipating and Overcoming Employer Defenses

We know employers won’t just roll over. We must be ready to counter their common defenses:

1. Undue Hardship: The employer claims the accommodation is too complicated or expensive. We counter this by showing the high legal threshold for this defense, scrutinizing the employer’s resources, and leveraging the VHRA’s rebuttable presumption if they’ve accommodated others.
2. Legitimate, Non-Discriminatory Reason: The employer says the adverse action was about performance, not pregnancy. Our job is to expose this as a pretext. We can show inconsistencies in their story, demonstrate disparate treatment of non-pregnant employees, and establish a clear timeline linking the accommodation request to the adverse action.
3. Lack of Notice: The employer argues they didn’t know about the pregnancy or the need for accommodation. We counter with clear evidence of notice, reminding them that neither the PWFA nor the VHRA requires magic words to trigger their duty.
4. Inability to Perform Job: The employer claims the employee can’t do the job, or that they are a safety risk. We fight back with medical evidence by leveraging the PWFA’s unique provision that protects a temporary inability to perform essential job functions.

Securing Justice in the Workplace

The legal landscape in Virginia for pregnant and caregiving employees is in constant flux. With the full implementation of the PWFA and the strong, enduring protections of the VHRA, employment lawyers have more tools than ever.

By deeply understanding these overlapping statutes and taking a proactive, strategic approach to evidence and advocacy, we can effectively identify viable claims and champion our clients’ rights. We can help ensure increasingly equitable and compliant workplaces where women are treated with fairness at every stage in life.

Disclaimer: This article is written and intended solely for informational purposes among legal professionals and does not constitute legal advice. Practitioners should consult specific statutory language, regulatory guidance, and case law, and consider the unique facts of each client matter.