07/01/2022
Infant Formula Shortages Not the Only Challenge Facing New Mothers
Infant formula shortages have confronted mothers and fathers in our country for the past several months. Some might criticize how the federal government has acted during this challenge. That leaves a topic for another day. Instead, a woman also might wonder what to do if her employer discriminates against her for being pregnant.
Congress Prohibits Pregnancy Discrimination at Work
In such an instance, the federal government has provided help. Nearly 50 years ago, Congress prohibited discrimination against women at work due to pregnancy.
That law is the Pregnancy Discrimination Act of 1978 (“PDA” in this article going forward). The PDA amended Title VII of the Civil Rights Act of 1964 so it would cover a woman who endured discrimination at work when related to her pregnancy.
Employers Who Must Follow the PDA
The PDA applies to employers with 15 or more employees. It covers any employee, regardless of how long she has worked for an employer. It does not include elected State or government officials at the county or local level. It excludes such elected officials’ close or personal staff.
Congress Passed the PDA in 1978
Written in 1964, Title VII prohibits discrimination at work due to s*x (along with race, color, religion, and national origin). It was not clear to the Courts that “because of s*x” applied to pregnancy discrimination, though.
The United States Supreme Court ruled in 1976 that Title VII protections did not apply to pregnancy. It did so in the case Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127-28 (1976). In Gilbert, the employer provided disability insurance for its workers. It covered non-work sickness and accident benefits. It did not cover disabilities arising from pregnancy.
A group of female workers sued. The women won at the trial court level. They won at the appellate court level. The Supreme Court took away those victories. In short, the Supreme Court reasoned that everyone knew that “s*x discrimination” did not encompass pregnancy-related disabilities. It came down to what “s*x” meant in Title VII.
Two years after the Supreme Court ruled in Gilbert, Congress acted. It amended what it means by “s*x” in Title VII. In 1978, it defined “s*x” in the PDA to include, “because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions….”
What the PDA Requires and Prohibits at Work
The PDA expressly required employers to treat pregnant women the same as all other employees not impacted by being pregnant.
The protection under the PDA covers any aspect of employment. That includes hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits (to include leave and health benefits) and any other term or condition of employment.
Proving a PDA Claim
A woman who is or was pregnant must do more than claim her employer discriminated against her due to her pregnancy or an issue related to it. She must prove as follows:
1. she was pregnant;
2. she was qualified for her job;
3. she suffered an adverse employment action; and
4. there is a connection (called a nexus in courts) between her pregnancy and the adverse employment action.
The lawsuit does not end with those four steps, though. The employer can strike back. It can present what the courts call, “a legitimate, non-discriminatory reason for its actions.” If so, that might end the case, but the courts give such women one more chance to prove their cases.
To maintain the lawsuit, in face of a non-discriminatory reason, such women must prove such a reason is mere pretext. To do that, such women must show:
1. no facts support the non-discriminatory reason; or,
2. they must show the asserted reason did not actually prompt or motivate the employer to act against such women; or,
3. they must show the asserted reason was not sufficient to prompt the employer to act adversely against the pregnant employee.
However, if an employee only has “weak” evidence of such pretext, the employer still could defeat a claim under the PDA.
Sample Successful Result in a PDA case
In a recent success story for a PDA claim, the Equal Employment Opportunity Commission helped a pregnant woman secure monetary and other relief against her former employer. The woman’s journey started in April 2018. She was 12 weeks pregnant. She was not visibly pregnant.
On May 10, 2018, the employer gave the pregnant woman a written evaluation. It scored her an “89” which was one point below an “excellent” rating.
On May 14, 2018, the employer fired the pregnant woman. She had had a pregnancy-related absence just days before. She had disclosed her pregnancy on or about May 7, 2018. The employer replaced her with a worker who was not pregnant.
The pregnant woman filed a discrimination charge with the EEOC. The EEOC took the case up. It could not convince the employer to correct the matter. The EEOC took the employer to court. As usual, the employer fought the lawsuit. However, the trial court decided that the case would go to trial. That convinced the employer to settle.
The employer agreed to pay $85,000. It agreed to provide PDA-related training. It had to revise its EEO policies. It added a new policy related to pregnancy-related accommodations. It had to report to the EEOC all complaints of s*x and pregnancy discrimination and harassment claims, too. The EEOC will monitor the employer’s compliance until 2024.
Not all PDA claims end this well, though. In fact, some say employment law claims rarely are successful for plaintiffs.
Conclusion
If you or someone you know experienced any bad employment events due to a pregnancy, contact a lawyer. At the least, find out what options you. A little knowledge can go a long way.
See footnotes in the comments
