A few notes about pregnancy discrimination

Careful consideration is needed with pregnant employees if you are deciding based on their pregnancy and not performance.
Careful consideration is needed with pregnant employees if you are deciding based on their pregnancy and not performance.

The Pregnancy Discrimination Act was passed in 1978, yet despite the amount of time on the books employers violate it all the time. In 2014 pregnancy cases were 18.4% of all Title VII cases files. The awards in the past 5 years have been approximately $5 million. Judges and juries find pregnant women to be very sympathetic victims.

Types of cases

The variety of discrimination cases dealing with pregnancy cover a broad spectrum of reasons. These include:

  • refusing to hire, failing to promote, demoting, or firing pregnant workers after learning they are pregnant;
  • discharging workers who take medical leave for pregnancy-related conditions (such as a miscarriage);
  • limiting employment opportunities for pregnant women, such as by placing them on involuntary leave, refusing to let them continue working beyond a certain point in the pregnancy, reducing work hours, or limiting work assignments due to employer safety concerns;
  • requiring medical clearances not required of non-pregnant workers;
  • failing to accommodate pregnancy-related work restrictions where similar accommodations are or would be provided to non-pregnant workers;
  • refusing to allow lactating mothers to return to work; and
  • retaliating against employees – or those close to pregnant employees – who complained about pregnancy discrimination.

Two notable cases point out some of the more egregious reasons. In August 2015 a company refused to promote a woman because she had taken maternity leave and instead promoted a lesser qualified male. In 2012 a woman claimed that the bank she worked for had put her on a “mommy track” after she had returned from maternity leave, thus reducing her income potential and promotional opportunities.

Burden of proof

In PDA cases the burden of proof of discrimination falls on the pregnant employee. According to attorney Paul Lusky of Ford Harrison, this is not an easy burden, though sometimes it is made easier by managers making stupid statements. Direct evidence such as “an associate vice president [telling] the plaintiff that the healthcare provider had considered her for the open manager position but decided to promote a less experienced male employee instead because she ‘had been on maternity leave for a while’” makes a case easier to prove. Direct evidence is not always necessary.
Circumstantial evidence can also be used to prove the claim of discrimination. According to Lusky “Circumstantial evidence of discrimination includes ambiguous statements, suspicious timing, and instances in which similarly situated, non-pregnant employees received systematically better treatment.”

What is an employer to do?

The law requires that employers “ignore an employee’s pregnancy as far as is practically possible.” That does not mean you ignore the employee especially when job actions are required.
Another issue in dealing with pregnant employees is that complications arising from pregnancy may have to be considered under Americans  with Disabilities Act, thus making the situation all that much more difficult to deal with.
I will end with Lusky’s very good piece of advice:

Employers must train supervisors and managers on the proper way to respond to an employee’s announcement that she is pregnant and will need maternity leave. All personnel decisions that impact the employee on maternity leave, whether evaluations, bonus determinations or promotion decisions, should be reviewed with human resources and/or the company’s employment law attorney.

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