Do you believe you weren’t hired, didn’t get a promotion, were denied benefits, or were fired because of your pregnancy? If so, you’re not alone: Thousands of charges alleging pregnancy discrimination are filed with the federal Equal Employment Opportunity Commission (EEOC) and similar state agencies each year. And, the EEOC announced recently that pregnancy discrimination, particularly in the form of pregnant employees being denied light duty and other accommodations, was an enforcement priority for the agency.
This article explains what you will have to prove to win a pregnancy discrimination lawsuit. For information on taking action to enforce your rights, see our articles on filing a charge or lawsuit alleging discrimination.
What Is Pregnancy Discrimination?
Pregnancy discrimination is a form of illegal sex discrimination. It occurs when an employer treats an applicant or employee differently based on her pregnancy, childbirth, or related conditions. (Treating female employees differently based on their reproductive capacity – by, for example, not allowing any woman in her childbearing years to work around chemicals that could be hazardous to a developing fetus – is also illegal sex discrimination.)
Pregnancy discrimination can happen at any point in the employment relationship, from hiring to firing. It is illegal to refuse to hire someone because she is pregnant; to make assignments, promotions, or demotions based on pregnancy; or to fire someone because she is pregnant.
The law doesn’t give pregnant women any special rights: It only prevents employers from treating pregnant employees differently from other employees. For example, if an employer gives light duty assignments to other employees with temporary disabilities, it must also give such assignments to employees who are temporarily unable to do their usual job due to pregnancy.
Proving Pregnancy Discrimination
To win a pregnancy discrimination case, you must show that you were treated differently than other employees who were similarly situated, and that the difference in treatment was based on your pregnancy. There are a number of ways to prove discrimination, depending on the facts of your case. No matter what facts you rely on, your burden is the same: to provide evidence showing it’s more likely than not that your employer took action against you because of your pregnancy.
Direct Evidence of Discrimination
Sometimes, an employee has direct evidence of discrimination. Essentially, this means that the employer admitted to acting with discriminatory intent.
If your employer said that your pregnancy played a part in its decision, you will have a much easier time in court. For example, if you were denied a promotion, and your manager said, “I’d like to give you the job, but I know you won’t want to travel as much once you have your baby,” that would be direct proof of discrimination. Even these days, attitudes about pregnancy, mothers, and women’s roles at home and in the workplace run the gamut. Although it’s very rare for an employer to admit to racist thinking, it’s not completely unheard of for an employer to openly state that an employee’s pregnancy was a factor in its decision.
Circumstantial Evidence of Discrimination
If your employer didn’t admit that pregnancy played a role in its decision, you might still have enough evidence to allow a judge or jury to infer discrimination. To prove discrimination by circumstantial evidence, the facts of your case, taken together, must make it more likely than not that discrimination was behind your employer’s action.
Often, circumstantial evidence consists of proof that the employer deviated from its usual practices or policies, acted in a way that doesn’t make business sense, or changed its behavior. Absent a sound explanation for the change, fishy management decisions made after your pregnancy is apparent or known could create an inference of discrimination. Statistical proof or proof of how other employees who are pregnant have been treated might also be persuasive.
Especially with pregnancy discrimination cases, timing is often crucial. Unlike other protected characteristics, pregnancy is a temporary condition. If your employer started treating you differently shortly after learning of your pregnancy, that could lead to an inference of discrimination.
For example, let’s say you were fired shortly before your due date. Your employer never said that your pregnancy was the reason for your termination. But other evidence might exist, such as:
- Facts showing that your employer didn’t follow its usual termination procedures in your case. For example, if your manager said you were being fired for performance issues, but other employees with performance problems were given written warnings and a chance to improve prior to termination, you could point to this discrepancy as circumstantial evidence of discrimination.
- Suspicious timing. Let’s say, for example, that you were fired on your last day of work prior to starting your pregnancy/parental leave. Or, that you were fired the day after the company’s CEO visited your office, noticed your condition, and asked you pointed questions about your intent to return to work after having your baby. These facts could persuade a jury that bias motivated the decision.
- Reasons given for the termination that don’t hold water. For example, if your manager told you that you were being fired because the company wanted someone with a stronger finance background, the person they hire to replace you should have those qualifications. If they instead hire someone with the same skills you have, their explanation starts to look like a pretext for discrimination.
- Treatment of other employees. If no other employee manages to stay on the payroll until the end of her third trimester, it starts to look like the employer has a pattern or practice of discrimination.
What to Do Next
If you believe you are facing pregnancy discrimination, talk to an experienced lawyer right away. If you are still employed, there may be steps you can take to save your job. A quick letter from an attorney might make your employer think twice about taking action against you. If you have lost your job, an attorney can help you assess the strength of your claims and decide how best to move forward, whether by trying to negotiate a severance package or pursuing legal action.
To preserve your right to sue, you must first file a charge of discrimination with the EEOC or a similar state agency. And, there are strict deadlines, both for filing a charge and for filing a lawsuit afterwards. You are undoubtedly more concerned with due dates than statutes of limitation. However, you must take action quickly to keep your options open. An attorney can help you take all of the necessary steps to enforce your rights.