Avoid a Pregnancy Discrimination Lawsuit

Did you know that thousands of charges are filed each year with the federal Equal Employment Opportunity Commission (the EEOC) and their state counterparts each year by employees that feel they are being discriminated against because they are pregnant?  And the EEOC is making it a priority to enforce laws that protect them – especially if they being denied light duty options and other accommodations.

While it’s unlikely that you are purposely trying to overwork an expectant mother, you can get in trouble easily just by not know what the law legally requires from you.  So let’s take a look.

The Legal Definition of Pregnancy Discrimination

Let’s start by defining exactly what it is.  As defined by the U.S. Equal Employment Opportunity Commission:

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.  The Pregnancy Discrimination Act (PDA) forbids 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.

Furthermore, if a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, you are required to treat her the same as you would treat any other disabled employee.  This can include providing temporary disability options that you would offer any other employee like:

• light duty work
• alternative assignments
• disability leave
• or unpaid leave

Also – some conditions or pregnancy are covered under the Americans with Disabilities Act (ADA).  This includes conditions such as gestational diabetes or preeclampsia.  You could have to provide reasonable accommodation like leave or job modifications that enable them to perform their job.

While all of that sounds intimidating – just keep in mind that the law is designed to make sure that you don’t treat pregnant women any different than you would treat any other employee.   You should be following other discrimination, disability, and employment laws, and you should apply those same policies to pregnant women.

If it Goes to Court

If an employee takes you to court over pregnancy discrimination, the burden of proof is on them to prove that you took action against them because of their pregnancy.  There are two main types of proof that they could provide.  The first is Direct Evidence of Discrimination.  In this case, they are saying that you admitted the negative action was due to their pregnancy.  For example, if you said something like”I’d like to give you the job, but with the baby coming, I know your ability to travel will be limited.”  You would be guilty of discrimination by refusing a job because of their pregnancy.

The second type of evidence is Circumstantial Evidence of Discrimination.  In this situation, you didn’t directly admit that their pregnancy played a direct role in your decision.  This is a harder lawsuit for them to win, but it’s not impossible.  They have to prove that all of the facts taken together make it more likely than not that their pregnancy was a factor in the decisions you made.

Usually, this case is proved out because of one of the following:

• You deviated from a normal practice or policy as outlined in your company handbook
• You changed your behavior from your normal actions
• or you acted in a way that doesn’t make smart business sense – like denying the best candidate for the promotion

The biggest difference with pregnancy versus most other protected classes is that pregnancy is a temporary condition.  Because of this, the timing of your actions makes a big difference.  For example, if you fired an employee on their last day before taking maternity leave, this could point to discrimination.