Employment Law Attorneys
NY Times The Daily: The Rampant Problem of Pregnancy Discrimination, Part 2

NY Times The Daily: The Rampant Problem of Pregnancy Discrimination, Part 2

Many women are passed over for promotions and raises when they become pregnant. Part 2 of this series examines the subtle sidelining of pregnant women and mothers in corporate America. Guests: Natalie Kitroeff, who covers the economy for The New York Times, and Erin Murphy, who alleges that she was denied opportunities by her employer, Glencore, once she became a mother. For more information on today’s episode.

The issue of pregnancy discrimination at work will not go away…unless you raise your voice and stop remaining silent.  Erin Murphy chose to speak out.  We should all speak out and end this devastating form of discrimination. We all came from someone.  Would you treat your mother like Erin Murphy was treated by Glencore.

To read Erin Murphy’s June 18, 2018 federal complaint against her current employer Glencore click here Murphy Complaint As Filed 6.18.18

If you need help with your employer because you are experiencing pregnancy discrimination, contact us.

There’s An Epidemic of Discrimination Against Pregnant Women at Work (NY Times 6.17.18)

There’s An Epidemic of Discrimination Against Pregnant Women at Work (NY Times 6.17.18)

On Sunday June 17, 2018 the New York Times posted an article, There’s An Epidemic of Discrimination Against Pregnant Women at Work involving a case attorneys Jill Saluck and Mark Carey are working on.

The article reported “Throughout the American workplace, pregnancy discrimination remains widespread. It can start as soon as a woman is showing, and it often lasts through her early years as a mother… Many of the country’s largest and most prestigious companies still systematically sideline pregnant women. They pass them over for promotions and raises. They fire them when they complain…In corporate office towers, the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted at bonus season.”

The NY Times article explored Erin Murphy’s willful pregnancy and sex discrimination case against her current employer Glencore:

“As a senior woman at Glencore, the world’s largest commodity trading company, Erin Murphy is a rarity. She earns a six-figure salary plus a bonus coordinating the movement of the oil that Glencore buys and sells. Most of the traders whom she works with are men.

The few women at the company have endured a steady stream of sexist comments, according to Ms. Murphy. Her account of Glencore’s culture was verified by two employees, one of whom recently left the company. They requested anonymity because they feared retaliation.

On the company’s trading floor, men bantered about groping the Queen of England’s genitals. As Glencore was preparing to relocate from Connecticut to New York last February, the traders — including Ms. Murphy’s boss, Guy Freshwater — openly discussed how much “hot ass” there would be at the gym near the new office.

In 2013, a year after Ms. Murphy arrived, Mr. Freshwater described her in a performance review as “one of the hardest working” colleagues. In a performance review the next year, he called her a “strong leader” who is “diligent, conscientious and determined.”

But when Ms. Murphy told Mr. Freshwater she was pregnant with her first child, he told her it would “definitely plateau” her career, she said in the affidavit. In 2016, she got pregnant with her second child. One afternoon, Mr. Freshwater announced to the trading floor that the most-read article on the BBC’s website was about pregnancy altering women’s brains. Ms. Murphy, clearly showing, was the only pregnant woman there. “It was like they assumed my brain had totally changed overnight,” Ms. Murphy, 41, said in an interview. “I was seen as having no more potential.”

When she was eight months pregnant, she discussed potential future career moves with Mr. Freshwater. According to her, Mr. Freshwater responded, “You’re old and having babies so there’s nowhere for you to go.” A Glencore spokesman declined to comment on Mr. Freshwater’s behalf. After she came back from four months of maternity leave, she organized her life so that having children wouldn’t interfere with her career. She arranged for child care starting at 7 a.m. so she would never be late. But as her co-workers were promoted, her bosses passed her over and her bonuses barely rose, Ms. Murphy said.

When there was an opening to be the head of her department, Ms. Murphy said she never got a chance to apply. The job instead went to a less experienced man. Ms. Murphy said an executive involved in the selection process had previously asked repeatedly whether she had adequate child care.

Ms. Murphy said that after she missed out on another job, the same Glencore executive told her it was because of the timing of her maternity leave. Ms. Murphy has retained a lawyer and is planning to file a lawsuit against Glencore.”

In response to the NY Times article Attorney Jill Saluck commented, “Sometimes a pregnant employee will be subject to blatantly discriminatory remarks by her employer, indicating a clear bias against pregnant workers. But more often, pregnancy discrimination is much more insidious. Often after pregnancy, a woman’s career will suddenly and inexplicably plateau.  Her non-pregnant coworkers will receive raises and promotions, but despite her consistent hard work, she will not be afforded the same opportunities. If this is happening to you at work, chances are that you’re not the only employee that has been subject to this type of discriminatory treatment. Pregnancy discrimination is not just unfair, its illegal, and employers must be called out for derailing the careers of pregnant employees.”

In the case reported in the NY Times article, Erin Murphy v. Glencore, Ms. Murphy filed her legal action in the District of Connecticut on June 18, 2018 (Erin Murphy v. Glencore, Ltd, 3:18-CV-1027 D.Conn). The case will proceed to a jury trial and we expect the jury to send a strong message to the company that pregnancy discrimination will not be tolerated and punished severely.

If you need assistance with your pregnancy discrimination issues at work, please do not hesitate to contact us.

A Few Very Good Reasons Why You Can’t Trust Your Employer

A Few Very Good Reasons Why You Can’t Trust Your Employer

We all build relationships based on trust.  Some relationships require more trust than others. For example, marriage, medical professionals and hiring lawyers.  We all take the time to explore whether these relationships are the right fit for us.  We even memorialize these important, sometimes life-changing, relationships with contractual agreements.  But when it comes to the relationship with your employer, you might as well start hand feeding piranhas.

Meet Your Antagonist: Your Employer

An antagonist is someone who actively opposes or is hostile to another; an adversary.  Does this describe your current or former employer? In my role as the employment attorney, I do not hear very many people say they trust their employers. In fact, the opposite is true.  According to a Harvard Business Review article, “In both your personal life and your work life, you’re bound to encounter people who take advantage of you, and these painful experiences can make you cynical.”

You have several reasons to be cynical about your employment relationship.  Your employer is not interested in whether you are happy at work, fulfilled in your career aspirations, concerned about your personal responsibilities at work or anything remotely realistic to a nurturing relationship.  In fact many employees have a low level of trust in their employers.  The 2016 Trust Barometer report from Edelman revealed that a third of employees do not trust their employers. Employees reported a lack of engagement, short term profit seeking, lack of belief in the company mission, poor product quality, unethical behavior, bad corporate reputation, invisible CEOs and lack of corporate communication to employees.

At-will Employment is Bad for You

When you are employed at-will, as most of you are, you might as well be on a first date for the next several years.  You would think that after knowing your employer for three or more years, you’d just settle down and get engaged to be married. However this is not so.  Unless you have a coveted and rare employment contract with a “for cause” termination provision, your employer can bounce you with little or no notice.  Many of you have felt this scorned feeling from prior jobs.  So where is the trust in the at-will workplace if you can never predict your future with a reasonable certainty on a day-to-day basis? There is none.  Ouch!

Somehow, we have just grown accustomed to this dysfunctional at-will relationship and let employers manipulate us with unenforced corporate codes of conduct, lofty corporate double speak and fear.

Management by Fear Does Not Create Trust

The most common corporate management practice today is to maintain a consistent level of passive-aggressive practices which propagate employee fear and insecurity. From my vantage point, I see a persistent pattern by employers accusing employees of subjective performance issues while their objective performance criteria are “meets” or “exceeds expectation”.  Employers use performance management techniques such as performance improvement plans and coaching to force out undesirable employees.  No one ever remains long after being managed this way. I also see cases of overt ruthless conduct, where a supervisor discriminates against pregnant employees as having “baby brain.” Saying things like, “I don’t want another woman working on the desk” or “If you’re being honest with yourself, do you really think you could do this job?”  And the comments get even worse. “I don’t want to hear any complaining from you, you and [spouse] did this to yourselves.” Only a supervisor with intentions to rid themselves of pregnant employees will make discriminatory statements like this to push the employee to quit out of fear of reprisal.

Discrimination Does Not Create Trust

The absence of trust becomes more noticeable when employees experience discrimination in the workplace or need to take time off due to health issues affecting themselves or a family member.  For these employees, their career with their particular employer has taken an abrupt turn for the worse.

For example, you become pregnant while employed and take a maternity/paternity leave under company policy and FMLA.  When you return, your job duties have changed and so has the person you reported to.  Pregnancy discrimination is one of the most perverse examples of a lack of trust an employee can encounter.  The employer has a maternity leave policy and you take a leave under said policy with no resistance.  However, upon returning to work you face pregnancy discrimination when your employment is terminated.  The employer will jump at an opportunity to replace you rather than reinstate you.  We would all agree, this is not an ideal trust building experience at any company, yet pregnancy discrimination continues to persist.

If you complain to your employer about issues of discrimination or whistle blowing, you will immediately cause your employer not to trust you.  You have a legal and moral right to complain about these issues, but do not expect reciprocation from your employer.  You just threw yourself off or under the company bus.  This equals your spouse cheating on you and then pointing the finger at you as the cause for why they had the affair.  Your employer’s Human Resources Department will not help you when you are down and have complaints about coworkers or your supervisor.  I am sure the folks in HR are nice people, but their “job” is to protect the employer, not you! Don’t make the mistake in confiding with human resource personnel, unless absolutely necessary to build a case for retaliation.

Arbitration and Noncompete Agreements Don’t Create Trust

Arbitration and non-competition agreements and employer trust are like oil and water with a sprinkling of gasoline for added flare.  The U.S. Supreme Court’s further endorsement of employer arbitration agreements cemented in stone the future of employee litigation and the permanent role of arbitration in your career. Listen, don’t be fooled, arbitration agreements are bad for you, your rights, your claims, the economy and are only good for employers.  Noncompetition agreements are even a better example of a lack of employer trust.  When your employer is finished with you and terminates your employment, they sink a big fishing hook in you and reel you back in at their whim each time you land a new position.  The employer cries foul, complaining you are single handedly destroying the company via working for the competitor.  These two forms of employment agreements represent the worst in every company that mandates them.  An arbitration agreement is a tool to conceal bad corporate acts from employment attorneys like myself and non-competition agreements are used to threaten competitive employers in the market place.

Rise Up and Demand More Trust

It is time to call an end to bad corporate practices- the deceit, the greed, the lies and the double speak.  Employees should demand more from their employers.  Rise up and unite together and tell your employer you would trust them only if they demonstrated trust to you first.  Trust begets trust.

Have questions or think you’ve been discriminated against at work? Let our employment law attorney’s help you get justice.  Get in touch today!

Pregnancy Discrimination: Reviewing Lactation Legalities

Pregnancy Discrimination: Reviewing Lactation Legalities

Central to any present-day discussion of pregnancy discrimination is the issue of lactation and nursing moms in the workplace. The practice of breastfeeding has expanded in recent years and various legal issues have accompanied this development.

The law is designed to protect moms who breastfeed in almost all 50 states, Connecticut included.

The Patient Protection and Affordable Care Act (P.L. 111-148, known as the “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide, “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”

Employers must provide as many breaks as are needed by the employee. Employers are also required to provide, “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Therefore, the Federal statute ensures that employers provide nursing employees with a time and a space to “express milk” if there is an employee with this need and the employer is made aware of the need.  Moreover, all employers covered by the FLSA must comply with the break time and private place provision for nursing mothers. Small businesses with less than 50 employees, who are not covered by the FLSA may be exempt from the FLSA provisions if they can demonstrate that compliance with the provision would impose an undue hardship.

How does all of this apply to employers and nursing employees in Connecticut?

The FLSA requirements for nursing mothers to express breast milk does not preempt state laws. And in fact, state law in Connecticut actually provides greater protections to nursing employees. The Connecticut Breastfeeding Coalition joined with the Departments of Public Health and Labor, and the Commission on Human Rights and Opportunities to create the, “Guide to Connecticut Breastfeeding Nondiscrimination and Workplace Accommodation Laws.” A closer look at the guide and the law in CT will show CT to be a state that gives great deference to, and places high public importance on, the protection of breastfeeding moms in the workplace.

Michele Griswold, chairperson of the Connecticut Breastfeeding Coalition said, “Most people want mothers and infants to be healthy, but not all understand the connection between breastfeeding and improved health outcomes. Taking steps to remove barriers for breastfeeding mothers and their children is a win-win situation for everyone. Increased breastfeeding rates ultimately mean healthier communities.”

Specifically, in the state of Connecticut, ALL businesses, regardless of the size, must provide breastfeeding protection in the workplace. Conn. Gen. Stat. Section 31-40 (along with the Patient Protection and Affordable Care Act, amending Section 7 of the Fair Labor Standards Act) requires employers to provide a reasonable amount of time each day to an employee who needs to breastfeed or express breast milk for her infant child and to provide accommodations where an employee can do so in private. And these CT laws apply to all businesses in CT regardless of their size or number of employees.

Sec. 31-40 entitled CT Breastfeeding in the Workplace reads as follows:

(a) Any employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period. CT case law has expanded this provision to mean, when possible this milk expressing activity should occur on your meal or other work break, but if it occurs at another time the employer is not obligated to pay you during the pumping break.

(b) An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.

(c) An employer shall not discriminate against, discipline or take any adverse employment action against any employee because such employee has elected to exercise her rights under subsection (a) of this section.

(d) As used in this section, “employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state; “employee” means any person engaged in service to an employer in the business of the employer; “reasonable efforts” means any effort that would not impose an undue hardship on the operation of the employer’s business; and “undue hardship” means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.

This requirement in CT is a much harder standard to meet than the Federal statute as it defines undue hardship as posing a, “significant difficulty” for the employer.

It is also important to note that whereas the Federal statute defines the protected activity as “expressing milk” in the workplace, the State of CT law is unique in that it protects and allows mothers to actually breastfeed their babies in the workplace, and/or express milk/pump.

If you are a mother returning to work after pregnancy and believe that your employer is failing to provide you with the breastfeeding protection you are owed under Federal and State law, please feel free to reach out to the employment lawyers at Carey & Associates, P.C. for help in this area, or for help with any other matters involving pregnancy discrimination in the workplace.

Remember: A CT business is not permitted to discriminate against, discipline or take any adverse employment action because you’ve elected to exercise your right to breastfeed or express milk at work.

Pregnancy Discrimination: Going Beyond Nine Months

Pregnancy Discrimination: Going Beyond Nine Months

Reports have shown that pregnant women and new mothers are suffering increasing levels of unfair treatment at work, including cuts to their work hours, zero-hour contracts or even undergoing forced removal from their jobs.

Laws Protecting Pregnant Employees

The Pregnancy Discrimination Act of 1978 ensures that pregnant employees or “women affected by childbirth,” are treated the same as childless workers. In addition to federal laws protecting pregnant employees from discrimination and ensuring that they receive family leave benefits, many states and localities also have passed laws giving additional protections and rights to pregnant employees.

Most states have passed laws requiring employers to provide reasonable accommodations to pregnant workers.  The Connecticut Fair Employment Practices Act was recently amended, making it unlawful for an employer to refuse reasonable accommodations for an employee due to her pregnancy or to limit, segregate, or classify her in a way that would deprive her of employment opportunities due to pregnancy.  The law also expands the definition of “pregnancy” to include related post-pregnancy conditions, such as lactation (PA 17-118).

What is Pregnancy Discrimination

The term, “pregnancy discrimination” is deceptive. Courts are only just beginning to define the parameters of what can be considered “on the basis of pregnancy.” Although a pregnancy itself is limited in time to a discrete period, the discrimination faced by a pregnant woman often continues long after the birth of her baby.

Federal law and the antidiscrimination laws of most states consider pregnancy and pregnancy-related conditions, such as lactation, to be protected. But the definition becomes more blurred, for example, in the context of a mother returning to work from maternity leave, only to find out that she has been demoted or placed in a new position.

Sometimes an employer’s discriminatory action won’t take place for months, or even years, following an employee’s pregnancy.  Years after her pregnancy, a female employee will notice that she is repeatedly passed over for promotions.  Despite her hard work and positive performance, her male and childless coworkers are given opportunities that she is not.

This phenomenon has been dubbed, the “motherhood penalty,” and is extremely common in today’s workplace.  According to recent studies, about three quarters of working mothers say they have experienced discrimination in the workplace.

Research shows that mothers are significantly less likely than either childless women, or fathers with identical qualifications, to get interviews. In addition, regardless of whether women work less after having children, employers pay them significantly less over time, assuming they will be less committed.  When mothers do cut back their work hours, their pay is disproportionately reduced.

Consider two specific examples of discrimination on the basis of motherhood responsibilities;

New Supervisor Syndrome – A working mother performs well and has no significant problems at work until her supervisor changes. The new supervisor cancels her flexible work arrangement, changes her shifts, or imposes new productivity requirements. On occasion, the new supervisors will even make comments indicating that these actions have been taken specifically to push mothers out. In other instances, a working mother may be targeted for termination under the biased belief that she is not as committed to her job or as productive as other employees who are not female and do not have childcare responsibilities.

Second Child Bias  Some mothers have reported experiencing little discrimination until they become pregnant with their second child. After informing her employer of her second pregnancy, a working mother is suddenly faced with questions about whether she intends to return to work after maternity leave and how she can continue working with two children. Some supervisors openly counsel women who are pregnant with their second child to stay at home, deny promotions or other opportunities, treat them rudely or ignore them, or make the work vs. home decision for them by terminating them. The assumption behind these actions appears to be that a mother can handle one child and work, but two is too much.  www.worklifelaw.org/pubs/FRDupdate2016.pdf

Defining Motherhood Discrimination

Not neatly categorized as pregnancy or gender discrimination, motherhood discrimination occurs when an employee suffers an adverse employment action based on unexamined biases about how female workers with childcare responsibilities will or should act, without regard to her actual performance or preferences.

Discrimination based motherhood often occurs in the context of failure to hire or to promote, demotion, transfer to dead-end jobs, removal of sales territory or responsibility, increase or strict enforcement of goals for mothers but not others, discipline for actions that do not result in discipline for non-mothers, humiliation or harassment, selection for layoff despite seniority and strong performance and termination for reasons that are not accurate or legitimate.

No federal or Connecticut statute expressly prohibits employment discrimination or retaliation based on motherhood responsibilities. In many situations, a court will rely on laws regarding pregnancy discrimination in analyzing a claim more aptly categorized as, “motherhood responsibilities discrimination.” A working mother may prevail by showing, for example, that because of her pregnancy, she was treated differently from employees who had not been pregnant.  Sometimes, the difference in treatment occurs after she returns from maternity leave, based on her employer’s assumption that because her childcare responsibilities will impact her work.

Gender discrimination laws have also been used in analyzing claims of motherhood discrimination.  Title VII does not prohibit discrimination on the basis of family responsibilities alone, but rather “gender plus” an additional status, in this case, childcare giver.

“Sex plus” or “gender plus” discrimination, involves a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic.  It is actionable under Title VII, state law, and the Equal Protection Clause, which forbids sex discrimination regardless of how it is labeled, as long as there is evidence of purposefully sex-discriminatory acts. Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).

The “sex plus” framework was used to analyze a female employee’s claim that her employer failed to promote her because of a sex-based stereotype that women who are mothers neglect their jobs in favor of their presumed child care responsibilities. Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009)

Such cases rest on the presumption that, “unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.” Id at 44–45.

In accordance with Title VII, women have, “the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.” Gingras v. Milwaukee County, 127 F. Supp. 3d 964, 975 (E.D. Wis. 2015).

If you feel that as a working mother, you have been the victim of discrimination by your employer, an employment attorney can help you determine what recourse may be available.

Get in touch today!

Jill Saluck is an employment attorney working in Connecticut for Carey & Associates, P.C. She can be reached at (203) 255-0380.
You Got Fired By an Artificially Intelligent (AI) Computer!

You Got Fired By an Artificially Intelligent (AI) Computer!

Ugh, you got fired by a computer! Artificial Intelligence has arrived in the workplace at breakneck speed.  Decisions about your performance and termination are being made by artificially intelligent machine learning computers.  I enjoy sci-fi but the news of computers making decisions about performance and terminations has serious legal implications you should be concerned about.

Artificial Intelligence in Use Today

Companies such as Google and Bridgewater Associates have built powerful computers that render decisions about performance and termination. Currently, AI computers operated by Google and Facebook have been found to discriminate based on race or gender. See NYTimes Article July 9, 2015. Companies in the recruitment field have begun using AI in recruiting. For example, the new start up company Pymetrics built an AI machine to remove bias in the recruiting process.

A Very Disturbing Future For Employees in Employment Discrimination Cases

Today, employment discrimination cases are determined by direct or circumstantial proof of intentional discrimination against a variety of protected classifications of employees, i.e. sex, age, disability, race, sexual orientation etc. Employment Attorneys, courts and juries routinely examine the human interactions underlying factual evidence to determine if an employee was terminated or adversely treated because of an unlawful bias or intent to discriminate held by a supervisor, a.k.a. a decision maker.  What happens when you replace the “human” decision maker with an Artificially Intelligent computer?  Answer, chaos!

I predict that employers will shift the decision making to a computer and eliminate the decision making from their managers and human resource personnel.  This AI HR Bot will conduct internal investigations, interview employees and witnesses and render a decision to terminate.  All these functions will comply with current state and federal laws required of all employers.  Most importantly, the AI HR Bot will make the “final” decision to terminate the employee, leaving employees and their attorneys, helpless to prove some human being held a discriminatory bias against them.  You could expect this future to arrive in one to three years.

What can you do to prepare for the future when computers terminate you?   Computers function on data, so employees should create lots of positive favorable data inputs for the AI computer to examine. For example, you should use company email to document abuse and make complaints to your manager.  You should also use emails to write rebuttals to factually baseless performance reviews that are done on-line by your manager. Save all of your supporting data on your own home computer. Finally, you should hire an employment attorney to guide you through the process to develop a case to support your lawsuit or severance package.

If you have employment law questions or need help with specific workplace issues, contact Carey & Associates, P.C.  Our employment lawyers can consult with you regarding your issue and offer guidance on the next steps.

Why Men At Work Don’t Understand Pregnancy

Why Men At Work Don’t Understand Pregnancy

Men at work do not understand pregnant coworkers and often are too quick to throw them off the bus. In a NYTimes article on December 20, 2016, Pregnancy Changes the Brain in Ways That May Help Mothering, the following lead paragraph appeared, “Pregnancy changes a woman’s brain, altering the size and structure of areas involved in perceiving the feelings and perspectives of others, according to a first-of-its-kind study published on Monday.

In essence, the study has shown that women who become pregnant appear to be “less perceptive” of the thoughts and feelings of others. The author of the study stated the changes in the brain reflect the woman’s brain’s adaptation to permit “a mother’s ability to recognize the needs of her infant, to recognize social threats or to promote mother-infant bonding.” These findings account for the problems pregnant women experience at work at the hands of their male handlers and the near constant rate of pregnancy discrimination claims filed each year.

The bottom line as I see this issue playing out at work is simple. Male employees should respect that a pregnant coworker is magically building a human being inside. We as men should anticipate that our pregnant coworkers may require more of our time, attention, empathy and patience.  What does not work is a lack of empathy, disparate treatment, isolationism and crass male bullshit behavior.  If you’re a man dumb enough to cross this line at work, and believe me I have dealt with many of them, it is a 100% certainty you will violate your company’s code of conduct and state and federal law. Worse yet, you will contend with me. You can bet I will make sure you lose your job, because that’s the fair and just punishment for your stupidity.  Gentlemen, what if you were a woman, would you want some a-hole doing this to you while you were pregnant at work? I didn’t think so and you can call me to discuss this further if you didn’t get the point of the study and this article.  I would be delighted to agitate your cranium.

Firing Pregnant Women Really Ticks Me Off!

I have been litigating employment discrimination cases in federal court for a very long time, but pregnancy discrimination by employers really ticks me off. The U.S. Equal Employment Opportunity Commission also shares the same anger, making pregnancy cases a priority in their recent enforcement actions.

The way I see it we should all give a standing ovation to pregnant female employees because they are successful at two concurrent jobs! I’m no liberal, but no man can handle the stress of being pregnant and hitting the ball out of the park at work every day. There are many many women who do this without complaint. Our work culture favors men over women and pregnancy discrimination is just one demonstrative example of the existing gender bias. For the naysayers who say pregnancy discrimination does not exist, go get your head examined. Employers are settling pregnancy discrimination claims with employees for a reason and for very large sums. Typically, these cases are settled rather than litigated because the manager screwed up and fired the pregnant employee after she gave her pregnancy notice and request for leave of absence.

The first sign of discrimination usually occurs when the employee begins to “show” in her pregnancy, roughly about the third or fourth month, the so called “baby bump”. This is also the exact same time period when supervisors and coworkers begin making utterly stupid discriminatory remarks. The following remarks were found to be discriminatory:

“Have all the kids you would like—between spring, summer, and fall. I will not work your territory during the winter months” and “if you were my wife, I would not want you working after having children,” held not to be discriminatory. Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 724 (7th Cir.1998);

“If I let you come back now, you would just go out and take your sick leave, and that would be preventing another person from working”, constituted direct evidence of pregnancy discrimination. Deneen v. Nw. Airlines, Inc., 132 F.3d 431, 434 (8th Cir. 1998);

“According to Roberts’s account, when she informed Lewis of the pregnancy on January 10, Lewis sighed and asked Roberts, “What are you going to do about the pregnancy; are you going to keep it?” A reasonable jury could infer that Lewis’s sigh, together with the question, amounted to an expression of frustration by Lewis that Roberts had become pregnant, and an indication that a decision by Roberts to continue the pregnancy would be disfavored.” Roberts v. Park Nicollet Health Servs., 528 F.3d 1123, 1128 (8th Cir. 2008) (reversing judgment for employer and remanding to trial court for trial);

“Defendants argue that the alleged comments—namely, Mr. Mansbach’s chastising Plaintiff for not telling him about her pregnancy and stating that others would “pick up the slack,” Mr. Kefgen’s statement that it looked like it was going to be a “rough pregnancy,” Mr. Kefgen’s comment regarding having “been through this before,” and Mr. Rosen’s comment about children being a “distraction” are innocuous and facially neutral. The Court disagrees. Although “[c] onsidered individually, certain of the complained of comments … arguably would be stray remarks[,] … [v]iewed collectively … a reasonable jury could conclude that the remarks reflected a discriminatory atmosphere and, consequently, constituted evidence of discrimination ….” Dominick v. Hospitality Valuation Servs., Inc., 11-CV-3452 JS GRB, 2013 WL 5460654 (E.D.N.Y. Sept. 30, 2013);

A statement from employee’s supervisor, indicating that she was fired because he thought she could not perform her job duties due to complications arising from her pregnancy, was not direct evidence of discrimination; rather, “[i]t is actually evidence that she was terminated because she was incapable of performing her job functions because of medical complications specific to her pregnancy. Appel v. Inspire Pharmaceuticals, Inc., 428 F.App’x 279, 282 (5th Cir.2011)

There are patterns of employer activity that serve as strong indicators of pregnancy discrimination, such as negative performance reviews and/or termination after giving notice of pregnancy. Employers will often assign so called “project work” and then notify the pregnant employee that her position was eliminated for financial reasons. Employers will also isolate the pregnant employee by excluding them from group email and group meetings. Isolation can further occur by assigning work to other male employees. Employers also deny promotions and curtail advancement once the notice of a pregnancy is given. These actions are often taken with the intent to make the employee quit their employment.

My theory on what causes the biased comments I often hear, and pregnancy discrimination in general, has everything to do with the perception of the employee’s future unavailability to do the work. The reality is that pregnant employees conduct business on behalf of their employer right up to the moment they give birth and then stay on top of the task during the same week of delivery. There is no lost productivity, in fact, the opposite is true. The biased perception above is just that – a misperception. Employers should think twice before canning a pregnant employee because she will get even!

© Carey & Associates, P.C., contact Mark Carey at mcarey@capclaw.com or (203) 255-4150.