Last updated Aug. 31, 2018.
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.
Read on for information on what pregnancy discrimination in the workplace looks like and how you can prove it occurred.
Article at a Glance
- It is illegal for a business to discriminate against an employee on account of pregnancy.
- Examples of pregnancy discrimination in the workplace include a detrimental change in hours or duties, a sudden change in performance evaluation, harassment in regards to medical leave, and more.
- Pregnancy discrimination cases use a burden-shifting process in which both the employee and employer must provide evidence to win the case.
Examples of Pregnancy Discrimination in the Workplace
If you’re a pregnant employee, the following are “red flags” that may signal you’ve been discriminated against because of your pregnancy.
1. 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.
2. A sudden change in performance evaluation.
A worker who received excellent performance 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.”
3. 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 arises 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.
4. 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 evidence of bias, 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.”
5. 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. The same is true when a pregnant employee is terminated, then replaced by a less- or equally-qualified non-pregnant employee.
How Can I Prove Pregnancy Discrimination Occurred?
As in other types of discrimination cases, courts in pregnancy discrimination cases use a burden-shifting scheme in which both the employee and employer have to prove something to prevail. This scheme generally has three steps:
- The employee makes a “prima facie” case of discrimination, presenting enough evidence to show that the employer’s adverse actions were consistent with a discriminatory intent. This gives rise to a presumption of discrimination.
- The employer presents evidence that it had a legitimate, nondiscriminatory purpose for its actions. 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.
- The employee has an opportunity to prove that the employer’s supposed nondiscriminatory purpose is just a pretext, and that the employer really did have discriminatory intentions. For instance, a reorganization might be proven pretextual if the pregnant worker was the only one amongst many to lose her job.
Evidence in pregnancy discrimination cases can be direct or indirect (also known as “circumstantial” evidence). Because employers try to hide their discrimination behind a seemingly neutral façade, the employee’s evidence of discrimination is usually indirect.
Proving discrimination motivated an employer’s actions can be a difficult task. As a result, it’s important to speak to an employment attorney as soon as you suspect that your employer has discriminated against you—or even sooner, if possible.
Get Help with Your Pregnancy Discrimination Case Today
Pregnancy discrimination takes many forms, and proving that it has occurred can be tricky in many cases.
But whatever its form, and despite the sometimes-difficult task of proving it has occurred, no woman should face pregnancy discrimination in the workplace. Federal and state law in New York and New Jersey agree on this point. If you believe you are being subjected to unlawful bias because of your pregnancy, call our employment law offices today for a free consultation.
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