Pregnancy Accommodation Rights in Delaware: Employer Obligations

The Pregnant Workers Fairness Act (PWFA), 42 U.S.C. § 1211, effective June 27, 2023, requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions. Covered accommodations include modified work schedules, remote work options, temporary leave, ergonomic adjustments, and additional bathroom or break time. The EEOC enforces the PWFA. Remedies include injunctive relief, back pay, front pay, compensatory damages, and attorney fees.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, applies to employers with 15 or more employees and prohibits discrimination based on pregnancy, childbirth, or related medical conditions. The Pregnancy Discrimination Act of 1978 clarified that Title VII covers pregnancy as a form of sex discrimination. Employers must treat pregnant employees the same as other employees with similar abilities or limitations. The EEOC enforces Title VII.

Federally, there is no universal right to unpaid family leave for pregnancy under FMLA unless the employer has 50+ employees and the employee has worked 12 months and 1,250 hours. FMLA provides up to 12 weeks of unpaid leave for childbirth and bonding.

Delaware Code Title 19, Section 711 requires employers with 4 or more employees to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions. This is significantly broader than the federal PWFA (15+ employees threshold) and Title VII (also 15+ employees). Delaware's lower 4-employee threshold means smaller employers are subject to state pregnancy accommodation requirements even when federal law does not apply.

Under Delaware law, reasonable accommodations include flexible work schedules, modified job duties, paid or unpaid leave, seating, accessible parking, and permission to attend medical appointments. Employers cannot require pregnant employees to take leave if accommodation would enable the employee to continue working. Employers must engage in an interactive process with the pregnant employee to determine effective accommodations.

Delaware's approach closely tracks the PWFA but applies to more employers due to the lower threshold. Unlike some states, Delaware does not provide a universal right to paid pregnancy leave separate from disability benefits, but employers must accommodate medical needs arising from pregnancy. Delaware Code Title 19, Section 708 explicitly prohibits retaliation against employees for requesting accommodations or complaining about pregnancy discrimination.

Under Delaware law, remedies for violations include damages, lost wages, benefits, front pay, attorney fees, and injunctive relief requiring provision of the requested accommodation. The Delaware Department of Labor investigates complaints and can file suit on behalf of employees.

Delaware employers subject to accommodation requirements: 4 or more employees (state law) vs. 15 or more (federal PWFA and Title VII).

Filing deadline with Delaware Department of Labor: 300 days from violation.

Filing deadline with EEOC: 180 days from violation in Delaware (non-deferral state); 300 days if filing with state agency first and it defers to federal.

FMLA coverage (federal unpaid leave): employers with 50 or more employees; employee must have worked 12 months and 1,250 hours in past 12 months; eligible for up to 12 weeks unpaid leave.

Delaware pregnancy accommodation law does not require an employer to provide an accommodation that would cause undue hardship to the business. Undue hardship is evaluated case-by-case and considers factors such as the nature of the accommodation, the cost, and the impact on business operations. An employer asserting undue hardship bears the burden of proving it by clear and convincing evidence.

The accommodation requirement does not apply if the employee cannot perform essential job functions even with reasonable accommodation. However, employers cannot assume a pregnant employee cannot perform duties; the employer must engage in dialogue and consider specific limitations documented by a healthcare provider.

Self-employed individuals and independent contractors are generally excluded from coverage. Federal law does not cover employees of the federal government, certain religious organizations, or Indian tribes, though Delaware law may apply more broadly.

Employees must have a known limitation related to pregnancy, childbirth, or a related medical condition. The employee or healthcare provider must communicate the need; employers are not required to provide accommodations for conditions the employer does not know about. However, an employer cannot refuse to engage in the interactive process or discriminate based on a request.

Delaware law includes an implicit at-will employment carve-out: if an employee is terminated for reasons entirely unrelated to pregnancy or accommodation requests, the termination may be lawful. However, the employer cannot use pregnancy or an accommodation request as a motivating factor. Delaware Code Title 19, Section 708 prohibits retaliation, which is broadly construed to prevent adverse employment action taken in response to a protected activity.

Step 1: Document the need for accommodation. Obtain written confirmation from your healthcare provider detailing the pregnancy-related limitation, expected duration, and recommended accommodations. Keep copies of the medical documentation, dates of conversations with your employer about the need, and any responses from the employer. Document any adverse employment actions (denial of accommodation, schedule change, reassignment) and the date they occurred. Maintain a record of emails, text messages, or written requests for accommodation.

Step 2: Make an internal complaint and request accommodation. Inform your employer in writing (email is acceptable) of your pregnancy-related limitation and request specific reasonable accommodations. Be as clear as possible about what accommodations would allow you to perform your job (e.g., "I need to use the restroom more frequently," "I need a chair at my workstation," "I need to attend weekly medical appointments"). Request a meeting to discuss accommodations. Do not delay; the sooner you communicate the need, the sooner the employer must engage. Keep copies of all correspondence. If your employer denies the request or fails to respond within a reasonable timeframe (typically 5 business days), move to Step 3.

Step 3: File a complaint with the Delaware Department of Labor or the EEOC. You have 300 days from the violation to file with the Delaware Department of Labor (Office of Labor Law Enforcement, Division of Industrial Affairs). File online at labor.delaware.gov or submit a written complaint to: Delaware Department of Labor, 4425 North State Street, Dover, DE 19901. Include your name, contact information, employer name and address, date of the violation, a description of what accommodation was needed and denied or what adverse action was taken, and copies of supporting documents (medical certification, emails, denial letters). Alternatively, file with the EEOC within 180 days at eeoc.gov or call 1-800-669-4000. The EEOC can coordinate with the state agency.

Step 4: The investigation process. The Delaware Department of Labor will contact your employer to verify the facts. The investigation typically takes 60–90 days but can extend to 6 months in complex cases. The agency will request documentation of the employer's policies, the accommodation request, and the employer's response. You may be asked to provide additional information or clarification. The employer will have the opportunity to respond. The agency will issue a determination of whether a violation occurred. If the agency finds probable cause, it will attempt to conciliate the complaint with the employer. If conciliation fails, the agency may refer the matter to the Delaware Division of Industrial Affairs for formal hearing or settlement.

Step 5: When to consult an attorney. Consult an employment law attorney immediately if the employer denies accommodation, retaliates against you for requesting accommodation, or terminates your employment. An attorney can help you file a formal complaint, represent you in investigation or hearing proceedings, and evaluate claims for damages. Delaware allows recovery of attorney fees, so a finding in your favor can include payment of your legal costs. If you believe you face ongoing retaliation or your job is at risk, contact an attorney before the situation escalates.