Pregnancy Discrimination in the Workplace: Does Anyone Still Do That?
The answer, sadly, is yes. On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc. In doing so, the Court adopted a new standard for evaluating pregnancy discrimination claims in the workplace under the federal Pregnancy Discrimination Act (PDA).
The Case
In Young, the plaintiff was employed by the defendant, United Parcel Service (UPS), as a part-time driver. Her duties required her to lift packages weighing up to 70 pounds. During her pregnancy, the plaintiff was put on a lifting restriction by her treating physician, and subsequently requested she be given a reasonable accommodation similar to that provided to her co-workers.1 UPS denied her request. The company stated she was not eligible for light duty assignments. Pregnancy was not considered a disability under their collective bargaining agreement. When Ms. Young was denied light duty, she was forced to stay at home on unpaid leave for the majority of her pregnancy. This eventually caused her to lose her health insurance coverage. The plaintiff filed suit against UPS. UPS eventually moved for summary judgment, saying pregnancy was not covered by the terms of the union agreement covering the other workers. They won.
The Appeal
The plaintiff’s case moved through the courts until it reached the Supreme Court. SCOTUS reversed the decision(s) of the lower courts. This decision created a new standard for evaluating pregnancy discrimination claims.
The Supreme Court held that, if the employer has pointed to a neutral policy as its legitimate reason for its denial of the sought-after accommodation, the plaintiff can establish pretext by proving that
- the policy imposes a “significant burden” on pregnant employees, and
- the reasons for the policy are not “sufficiently strong to justify the burden.”
Under Young, a plaintiff seeking redress under federal pregnancy discrimination laws no longer needs to prove that an employer’s stated reasons for denying an accommodation are false. She only needs to show that the employer’s denial of those accommodations has a significant impact on pregnant employees. If the reasons for that denial are not strong enough to justify that disparate impact, they cannot prevail, even if they are true.
Terminations Happen
We are in July of 2016, not 1952. When it comes to an employee informing her employer she is pregnant, it often feels like the latter. Decades after the women’s movement leveled much of the playing field, employers still respond to notification of a pregnancy with termination. The idea seems incredible. How do they think they can get away with it? Pregnancy discrimination is a clear violation of California’s Labor Laws. Our state has among the strongest parental leave programs and protections in the country.2
California’s protections for its pregnant workers are substantial. See HERE for another case example. It is a violation of the law to terminate a pregnant employee. Women are generally better informed as to their rights than they were in the 50’s. They know that they cannot lawfully be discharged for becoming pregnant. Most women, when informed they will “no longer be needed” after notifying an employer of a pregnancy, will call an attorney.
Red Flags
If an employee is planning on reporting to management that she is expecting, she should be aware of common practices employers use to create a record for a “legitimate” termination. Factors that should set off alarm bells, include:
Suddenly stripped of your job duties.
An employee notifies HR of a pregnancy, and subsequently arrives at work to find her workstation moved to the storage cabinet. You’ve got nothing to do, so you inquire as to the reason for the change. Your employer has no believable answer. What do you do? Take detailed notes of the demotion. List every task you performed before and after you told them you were pregnant.
The quality of your work comes into question.
You’ve always had a good relationship with management. Your personnel file reflects that fact. After telling the boss you’re pregnant, you went from “star worker bee” to the “girl in the black hole.” When that happens, you may have a case. Start by asking your Human Resources department to fill you in on the abrupt change in relationship. Put them on notice, politely and professionally, that you know your rights.
Medical appointments are newly objectionable.
You have never had difficulty setting up routine medical appointments. You notify your boss you’re pregnant. Your supervisor suddenly gives you resistance about making your prenatal appointments. This is when you begin to document the change. Request a record of your absences for other medical appointments. Use the documentation to find out whether or not you may have used up more PTO/sick leave than you had coming. Once you know where you stand on leave, go back to HR. If you believe you are seeing the first steps in your employer’s plan for your termination, call an attorney
Past Practice.
Speak to co-workers and find out how the company has handled pregnant employees in the past. If Jenny in accounting had no problems, then you should be fine. If you discover that the last three women who got pregnant “went missing” shortly thereafter, you may want to begin making your record. You want to prepare the most accurate information you can. Lawyer’s will use that to determine your chances of success should you decide to bring a lawsuit.
Termination.
Termination takes many forms. Employers fire some pregnant workers within the week, sometimes it takes a bit longer. Companies often take some additional time to create a record against a pregnant worker. Supervisors will use terms like “budgetary concerns” or “work quality issues” when firing a worker. Employers will attempt to craft lawful reasons for a termination. An employer who has a layoff in process, for example, will be difficult to sue. Pregnant workers with a history of poor performance, will also have a difficult road. Employers are often successful in creating a smoke screen around their reasons to terminate. Pregnant workers can start protecting themselves by investigating and documenting the process.
The Takeaway
Bottom line, if you feel in your gut that something is off, it may very well be. There are some employer’s who simply don’t want to comply with California’s myriad laws surrounding protected and unprotected maternity leaves, restrictions on job duties, or other accommodations that they feel may be too disruptive to their business. They may thus take steps to attempt to manufacture what will appear to be a lawful scenario for terminating a pregnant employee.
If you find yourself in need of legal advice related to termination, and you believe it is pregnancy related, call an experienced employment attorney in your area.
1. Under its collective bargaining agreement, UPS provided light duty tasks to employees who: (1) were injured on the job, (2) had lost their Department of Transportation certifications, and (3) suffered from a disability covered by the Americans with Disabilities Act.
2. California enacted America’s first paid leave program for parents of newborns and provides disability payments for private sector employees with pregnancy- or childbirth-related disabilities, a flexible sick leave law and unpaid, job-protected leave for pregnancy-related disability. DFEH Pregnancy Laws
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