Saturday, February 3, 2018

Proving Pregnancy Discrimination

By John V. Berry, Esq.,

Unfortunately, many women are still affected today by pregnancy discrimination in the workplace. This article discusses the laws that protect women from pregnancy discrimination and the elements needed to establish a claim. Pregnancy discrimination claims, depending on the location (and type of employment) of the employee or applicant, can be taken administratively to the Equal Employment Opportunity Commission (EEOC), state or local agencies tasked with investigating pregnancy discrimination claims, in addition to court. This article focuses on the elements of establishing a pregnancy discrimination case.
The Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act of 1978 (PDA) bars discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. The law was enacted in 1978 and has been evolving since that point. Even today, the PDA is being interpreted more broadly by the courts to protect women than ever before. The PDA applies to employers with 15 employees of more.  

The PDA protects a woman if she is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth. Through it's protections, the employer must treat a woman in the same way as it treats any other temporarily disabled employee. As an example, the employer may have to provide light duty, telework, different assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. This leaves open a number of issues which seem to make their way into the courts more often in the last 10 years.

Elements to Prove Pregnancy Discrimination

In order to establish a case of pregnancy discrimination under the PDA, an employee must show the following elements:

(1) she is a member of a protected class (a pregnant woman);
(2) she satisfactorily performed her duties;
(3) she was discharged or suffered discrimination; and 
(4) the action occurred under circumstances giving rise to an inference of unlawful discrimination. 

Common Examples of Pregnancy Discrimination

There are far too many instances and types of pregnancy discrimination that occur today, but we wanted to list some examples of potential pregnancy discrimination.  Some common examples of the type of pregnancy discrimination that occurs today:

Example A:  Sally Smith, a pregnant woman, interviews for a new engineer position. The employer interviews her, but declines to hire her because she is going to be out of work for 3 months when she gives birth.

Example B:  Jennifer Silvers, a pregnant woman, takes leave to have a baby.  When she returns she finds out that her position has been eliminated. The employer has seemingly no explanation for this, but the underlying reason is that she was out of work for 2 months related to her pregnancy.

Example C: Carrie Jones, a pregnant woman, has been a stellar employee with no performance issues. After she announces she is pregnant, she begins to suffer harassment, for no reason. The manager makes negative comments (and jokes) about how Carrie just isn't the same worker as she used to be and also begins to give her bad performance reviews for no reasons.

Example D: Barbara Carlton, a pregnant woman, has been having back problems related to her pregnancy. She asks her employer for a light-duty assignment until she feels better and is denied. Other employees who back issues, however, who are not pregnant, are offered light duty positions.  This is an example of potential pregnancy discrimination.  

Example E: Betty Charles, a pregnant woman, complains about her supervisor's treatment of her related to her raising requests for accommodation during her pregnancy to the supervisor's supervisor. Her supervisor finds out about the complaint and fires her. This is an example of retaliation for raising protection issues under the PDA and a form of pregnancy discrimination.

Other examples of illegal pregnancy discrimination exist, such as forcing a pregnant employee to take time off or to change duties/jobs during pregnancy, or restricting leave related to pregnancy and medical issues. There are likely other examples not listed here, given the numerous types of areas of discrimination occurring, related to pregnancy.


If you need assistance with filing a claim of pregnancy discrimination or representation in pregnancy discrimination claims, please contact our office at (703) 668-0070 or at to schedule a consultation. Please also like and visit us on Facebook page.

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