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 firstname.lastname@example.org or (203) 255-4150.