Bias against pregnant employees continues to be a problem across all kinds of industries and wage levels. At the same time, employers are more savvy about potential pregnancy discrimination lawsuits than ever before, often relying on a team of seasoned HR professionals to assist them in dealing with pregnant workers.
As such, when pregnancy discrimination occurs, it’s almost never overt. Management usually attempts to force out pregnant workers for stated reasons that seem fair and reasonable – on paper, at least.
In employment law, when an employer cites a fair and non-discriminatory reason for treating a pregnant worker differently than and at a disadvantage to her non-pregnant co-workers, we call it “pretext”. For example, an employer might state that a pregnant worker was fired for the legitimate, non-discriminatory reason that the worker’s position was eliminated due to a reorganization. It’s then up to the pregnant worker and her attorney to prove that the employer’s reason is “pretextual”, using circumstantial, or indirect evidence. In this scenario, for example, a reorganization might be proven pretextual if the pregnant worker was the only one amongst many to lose her job.
If you’re a pregnant employee, the following “red flags” are often indirect evidence of discrimination:
A detrimental change in hours or duties. After an employee announces her pregnancy, an employer might reduce her paid hours or switch her to a difficult late-night or early-morning shift. The employer might also assign the pregnant worker duties with less status, transferring her important and higher-level work to non-pregnant employees. Some employers even assign pregnant workers duties that are physically difficult to perform while pregnant, such as lifting or standing for long periods at a stretch.
A sudden change in performance evaluation. A worker who received excellent reviews before her pregnancy might be surprised to suddenly be receiving verbal and written criticism, or even discipline, after she becomes pregnant. Often, this criticism isn’t directed at objective performance metrics like number of sales or units delivered. Rather, the alleged criticism is based on vague and subjective criteria like “tone” or “attitude.”
Harassment in regards to medical leave, or an outright refusal to grant leave. This issue is of particular importance to workers with high-risk pregnancies. Oftentimes such workers have no choice but to request time off for extra doctor’s appointments or even hospitalizations. An inference of discrimination rises when the employer hassles the pregnant worker for taking leave, such as by rejecting a perfectly sufficient doctor’s note the worker submits for an absence, or by repeatedly refusing to excuse the worker to attend an ultrasound exam.
Suspicious verbal comments. It’s a rare thing for an employer to groan out loud when an employee announces her pregnancy. However, comments that allude to the worker’s pregnancy are sometimes biased, especially when they assume that the worker is incapable of performing and committing to her job due to her pregnant status. Examples might include: “Since you’re pregnant, we need to make sure your work doesn’t suffer”, or, “I see a real future for you here. I’d think pretty carefully about having kids if I were you.”
Being passed over for promotion or replaced by a non-pregnant co-worker. An inference of discrimination also arises when a pregnant employee is passed over for promotion in favor of a less- or equally-qualified non-pregnant employee. Likewise for when a pregnant employee is terminated, then replaced by a less- or equally-qualified non-pregnant employee.
Workplace pregnancy discrimination is something that no woman should suffer. If you believe you are being subjected to unlawful bias based on your pregnancy, call our offices today for a free consultation.