Ethical Considerations and Pregnancy Discrimination

According to the U.S. Equal Opportunity Commission (EEOC), pregnancy discrimination is a form of illegal sex discrimination. It occurs when an employer treats an applicant or employee differently based on her pregnancy, childbirth, or related conditions. (Treating female employees differently based on their reproductive capacity – by, for example, not allowing any woman in her childbearing years to work around chemicals that could be hazardous to a developing fetus – is also illegal sex discrimination.)

EEOC data indicate that pregnancy discrimination charges have increased about 30% from 4,287 in 2001 to 5,797 in 2011. In the past two years the number of complaints has declined although most observers do not believe it reflects a long-time downward trend.

Pregnancy discrimination can happen at any point in the employment relationship, from hiring to firing. It is illegal to refuse to hire someone because she is pregnant; to make assignments, promotions, or demotions based on pregnancy; or to fire someone because she is pregnant. 

Sometimes, an employee has direct evidence of discrimination. Essentially, this means that the employer admitted to acting with discriminatory intent. 

If your employer said that your pregnancy played a part in its decision, you will have a much easier time in court. For example, if you were denied a promotion, and your manager said, “I’d like to give you the job, but I know you won’t want to travel as much once you have your baby,” that would be direct proof of discrimination.

If your employer didn’t admit that pregnancy played a role in its decision, you might still have enough evidence to allow a judge or jury to infer discrimination. To prove discrimination by circumstantial evidence, the facts of your case, taken together, must make it more likely than not that discrimination was behind your employer’s action. 

Especially with pregnancy discrimination cases, timing is often crucial. Unlike other protected characteristics, pregnancy is a temporary condition. If your employer started treating you differently shortly after learning of your pregnancy, that could lead to an inference of discrimination. 

According to the legal publisher NOLO, if you were fired shortly before your due date and your employer never said that your pregnancy was the reason for your termination other evidence that you have a claim might exist, such as: 

• Facts showing that your employer didn’t follow its usual termination procedures in your case. For example, if your manager said you were being fired for performance issues, but other employees with performance problems were given written warnings and a chance to improve prior to termination, you could point to this discrepancy as circumstantial evidence of discrimination.
• Suspicious timing. Let’s say, for example, that you were fired on your last day of work prior to starting your pregnancy/parental leave. Or, that you were fired the day after the company’s CEO visited your office, noticed your condition, and asked you pointed questions about your intent to return to work after having your baby. These facts could persuade a jury that bias motivated the decision.
• Reasons given for the termination that don’t hold water. For example, if your manager told you that you were being fired because the company wanted someone with a stronger finance background, the person they hire to replace you should have those qualifications. If they instead hire someone with the same skills you have, their explanation starts to look like a pretext for discrimination. 
• Treatment of other employees. If no other employee manages to stay on the payroll until the end of her third trimester, it starts to look like the employer has a pattern or practice of discrimination.

According to the EEOC, if a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA).  An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).  The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability. 

If you believe you are facing pregnancy discrimination, talk to an experienced lawyer right away. If you are still employed, there may be steps you can take to save your job. A quick letter from an attorney might make your employer think twice about taking action against you. If you have lost your job, an attorney can help you assess the strength of your claims and decide how best to move forward, whether by trying to negotiate a severance package or pursuing legal action. 

To preserve your right to sue, you must first file a charge of discrimination with the EEOC or a similar state agency. And, there are strict deadlines, both for filing a charge and for filing a lawsuit afterwards. You are undoubtedly more concerned with due dates than statutes of limitation. However, you must take action quickly to keep your options open. An attorney can help you take all of the necessary steps to enforce your rights.

To win a pregnancy discrimination case, you must show that you were treated differently than other employees who were similarly situated, and that the difference in treatment was based on your pregnancy. There are a number of ways to prove discrimination, depending on the facts of your case. Remember that no matter what facts you rely on, your burden is the same: to provide evidence showing it’s more likely than not that your employer took action against you because of your pregnancy. 

The law doesn’t give pregnant women any special rights: It only prevents employers from treating pregnant employees differently from other employees. For example, if an employer gives light duty assignments to other employees with temporary disabilities, it must also give such assignments to employees who are temporarily unable to do their usual job due to pregnancy. 

A useful book that explores issues related to pregnancy discrimination is "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace" by Tom Spiggle who specializes in pregnancy discrimination in the workplace.

The bottom line on pregnancy discrimination is you cannot be treated differently than other employees. It is a fairness issue as well as one of empathy for an employee who is pregnant. As with other fairness issues a useful perspective from an ethical point of view is: Would I want others to be treated improperly because of pregnancy for similar reasons in similar situations? No doubt most of us can visualize a loved one, such as a spouse, being discriminated against and most of us would agree, I believe, that sensitivity to a women’s “condition” dictates that all reasonable accommodations must be made so that pregnant women are treated with the same respect as all employees in the workplace. There is no ethical reason for any forms of discrimination in the workplace whether it be based on gender, age, nationality, religion, sexual preference, age discrimination or pregnancy discrimination.

Blog posted by Steven Mintz, aka Ethics Sage, on July 31, 2014. Dr. Mintz is a professor in the Orfalea College of Business at Cal Poly, San Luis Obispo. He also blogs at: www.ethicssage.com.