Title VII Does Not Protect Need for Childcare or Requesting Time Off for Childbirth


As the U.S. Court of Appeals for the Tenth Circuit explained, Title VII prohibits discrimination on the basis of sex, which includes pregnancy, childbirth, and related medical conditions, but not childcare per se. And protected activities under Title VII are limited to opposing unlawful activity under Title VII or participating in an investigation, proceeding or hearing regarding the same.

In Battino v. Redi-Carpet Sales of Utah, LLC, an office manager who was working from home following the birth of her child was terminated after the employer determined that “significant operational issues” in the office required her immediate return, but she could not do so because she did not have any immediately available childcare. She then sued, alleging discrimination and retaliation in violation of Title VII, among other things.

As the Tenth Circuit noted, the primary basis for the manager’s discrimination claim was the sudden revocation of her work-from-home arrangement and unwillingness to allow her to find childcare. However, according to the Tenth Circuit, childcare is not encompassed within Title VII’s protection of pregnancy, childbirth or related medical conditions – which are all physiological conditions.

As for her retaliation claim, the manager asserted that the employer retaliated against her protected activity of becoming pregnant and requiring leave, in violation of Title VII. However, as the Tenth Circuit explained, “protected activity” under Title VII is limited to opposing discrimination or participating in such opposition. (Of course, if the employee had experienced pregnancy- or childbirth-related disabilities, she might have been entitled to reasonable accommodations, including leave, under the Americans with Disabilities Act, and been protected from retaliation on the basis of such need for accommodation).

While this case offers some interesting clarification on the boundaries of Title VII’s protections for women with regard to pregnancy, childbirth and related medical conditions, employers should still be mindful that the EEOC has issued an Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, which explains that there are circumstances in which adverse treatment of caregivers can constitute discrimination in violation of Title VII.