I Am Being Unfairly Treated By My Employer Because I Am Pregnant, What Do I Do?

Many women fear what will happen to their job if they get pregnant. This is an unfortunate legitimate fear as many employers simply hate having to accommodate pregnant women. However, just because employers often treat pregnant women unfairly does not mean that they are allowed to treat pregnant women unfairly.

The Civil Rights Act made it illegal for an employer to refuse to hire, discharge, or otherwise discriminate against an individual with respect to their compensation, terms, conditions, or privileges of employment because of, among other things, the person’s sex. The Civil Rights Act was amended in 1978 with the Pregnancy Discrimination Act of 1978 that amended the definitions of the Civil Rights Act to include pregnancy, childbirth, or related conditions under the term “sex” and further expanded protection to women by stating that this class of woman “shall be treated the same for all employment-related purposes that are not so affected but similar in their ability or inability to work,” thereby making it illegal to discriminate in the workplace against a woman due to her pregnancy or childbirth.

Claims of violations of the Civil Rights Act can be brought by alleging disparate-treatment, disparate-impact, and/or pattern-or-practice. Each have their own elements that the affected employee must prove to succeed on their claims, but today we are going to focus on the disparate-treatment claim.

In order to succeed on a disparate-treatment case you have to show that the protected trait—in this case pregnancy—motivated the employer’s decision in treating the affected employee differently. There are two ways to demonstrate this, by proving intentional discrimination with direct evidence or by shifting the burden to the employer to show that they did not intentionally discriminate against the employee. The direct evidence path is fairly straight-forward, yet difficult to succeed on. It is rare that an employer will say that you were treated differently than other employees because you were/are pregnant.

For that reason, it is much more common to pursue a disparate-treatment claim using the burden shift. What a burden shift means is that the plaintiff has to show certain things to the court to raise a sufficient likelihood that the wrongful conduct happened, the defendant then has an opportunity to rebut this presumption (and in discrimination claims the plaintiff gets an opportunity to rebut the rebuttal).

In a disparate-treatment claim, the plaintiff succeeds in a burden shift by showing that they belonged to a protected class (they were/are pregnant), that there was an employment benefit available that the employee was qualified for and applied to receive, the employee’s application was rejected, and the benefit was granted to other similar employees.

If the plaintiff can show this, then burden of proof shifts to the employer and the employer must articulate some legitimate, non-discriminatory reason for treating other employees better than the affected employee. If the employer cannot articulate such a reason (and it must be more than just accommodating the pregnant woman would have been expensive) the employer loses.

However, if the employer is able to articulate such a reason, then the burden shifts back to the plaintiff to show by a preponderance of the evidence that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination.

All of this sounds incredibly complicated, but it is much more simple in practice than on paper.

To help illustrate how the process works I will use an example from the recent Supreme Court case Young v. United Parcel Service. In that case the employee was a pregnant woman who had an at risk pregnancy and as a result her doctor put her on a weight lifting restriction. Because one of the job requirement at UPS is that she had to be able to lift 70 pounds but could no longer perform that duty, she was put on unpaid leave and lost her health insurance benefits even though there were other employees with similar weight lifting restrictions due to disabilities—among other reasons—that were allowed to continue working even with the restrictions. The Supreme Court found those circumstances were sufficient to shift the burden to the employer. The Supreme Court also stated that even if UPS could show a legitimate non-discriminatory reason for the different treatment, the employee could still win by providing sufficient evidence that UPS’s policies “impose a significant burden on pregnant workers” and that UPS’s legitimate reasons are not sufficiently strong to justify the burden and therefore give rise to an inference of intentional discrimination.

While becoming pregnant should be a wonderful time in your life, oftentimes employers can do their best to ruin it. Just remember that you have rights, and so while they may succeed in illegally harming you in the moment, you always have the opportunity to take them to court.