A Pregnancy Discrimination Overview

You’re pregnant! Congratulations are in order. Obviously you’re ecstatic about the great news. You tell everyone at work, and for the most part, your coworkers share in your joy. However, your boss doesn’t seem to take the news very well.

You tell yourself that maybe your boss is having a bad day and isn’t looking forward to having you out of the office. After all, he thinks you’ll ask to take maternity leave and request maternity pay. Over the next several days and weeks, you notice your boss treating you differently.

At first, it’s hard to put your finger on it. Your boss makes less small talk with you, but you convince yourself that maybe he’s just busy. But soon, you notice you’re not getting the good assignments or important projects you used to get. Then you find out your boss has excluded you from key meetings. A few months later, during your annual performance review, your boss blindsides you with negative reviews for the first time and decides not to award your annual bonus.

You try to find anything to explain your boss’s behavior, but all signs point to one thing: your boss is discriminating against you on the basis of your pregnancy.

What your boss is doing is illegal, right?  Most likely, yes. But let’s take a look at what makes your boss’s behavior illegal, why you need to do something about it and what your options are.

Why You Need to Be Concerned

Not only is discrimination against you completely unfair (in addition to likely being illegal), your boss can have a lot of power over your potential for advancement and professional development. If you continue to accept this discriminatory conduct, it’s possible your boss could even ruin your career. He might be able to stop you from getting a promotion. If he’s really upset he could potentially blackball you, making it difficult to find work at another company.

But there are laws in place that may help prevent this from happening, or potentially provide some compensation for you if the worst should happen. Let’s briefly discuss these laws and how they work.

 

Laws that Prohibit Pregnancy Discrimination

One major law prohibits pregnancy discrimination in the workplace: the Pregnancy Discrimination Act of 1978 (PDA). This is a federal law and therefore applies in all 50 states.

A related law, the Americans with Disabilities Act of 1990 (ADA), can also prohibit pregnancy discrimination. The ADA only overlaps with the PDA in limited situations, such as when the pregnancy also results in a pregnancy-related disability. An example of this might be when a woman experiences pregnancy complications. Like the PDA, the ADA is also a federal law.

Sometimes, states and municipalities will have their own pregnancy discrimination laws. These laws may provide more protections or apply in more situations than the PDA or ADA. A few of these states include:

Individuals Protected by the Pregnancy Discrimination Act

The PDA doesn’t just prohibit discrimination on the basis of pregnancy, but childbirth and related medical conditions, too. This means that the PDA can also apply in certain situations if a woman faces discrimination on the basis of:

  • Past pregnancy
  • Breastfeeding
  • Intent to get pregnant
  • Potential risk of harm to a pregnant employee or her fetus
  • Abortion (either the woman’s decision to have one or not have one)
  • Infertility
  • Contraception use

Note that the PDA doesn’t require maternity leave or maternity pay, but the Family and Medical Leave Act of 1993 may require an employer to provide unpaid leave to a pregnant employee in certain situations.

Employers Subject to the Pregnancy Discrimination Act and the Americans with Disabilities Act

Neither the PDA nor the ADA applies to all employers. Only employers with 15 or more employees are subject to the PDA and ADA’s requirements. If your employer has 14 or fewer employees, you may still have a case for pregnancy discrimination. However, it will depend on which state you’re in and what applicable pregnancy discrimination law applies.

States with their own pregnancy discrimination laws often provide greater legal protections. For example, Virginia’s Human Rights Act pregnancy discrimination protections apply to employers with as few as six employees. Tennessee’s Human Rights Act applies to employers with eight or more employees. Arlington County’s Human Rights Ordinance applies to employers with four or more employees. Washington, DC’s Human Rights Act applies to employers of any size.

Bringing a Pregnancy Discrimination Lawsuit

Deciding to start a lawsuit is not a decision that should be taken lightly. There’s always the chance of losing, no matter how strong your case seems. And for the typical employment discrimination employment lawsuit, plaintiffs face a difficult challenge winning in court.

Luckily, plaintiffs have an unusually high chance of winning caregiver discrimination cases, with the majority of those cases consisting of allegations of pregnancy discrimination. But just because you’re the victim of pregnancy discrimination, that doesn’t mean you can expect to win if you decide to sue your employer. However, it does mean your case has a greater chance of success than the average employment civil suit. And because of this greater chance of successfully suing for pregnancy discrimination, you will have additional leverage during negotiations with your employer.

To read about some recent successful pregnancy discrimination lawsuits, you can check out our blog posts titled, “Assistant Principal Settles Pregnancy Discrimination Case for $350,000” and “Three Ex-Employees Share a $6.2 Million Verdict in Pregnancy Discrimination Case.”

What to Do Next

The first thing you need to do is make sure your boss and your employer know you’re pregnant. The second thing you should do is report the pregnancy discrimination to human resources. To establish a basis for a pregnancy discrimination lawsuit, you need to report the discrimination. Even if you eventually decide not to take legal action against your employer, reporting the discrimination is important because it gives you the option to take legal action, should you later change your mind.

The next thing you want to do is get a better understanding of your legal rights. Feel free to explore our site, which contains a tremendous amount of information about workplace discrimination, including 10 Things to Know Before Filing a Pregnancy Discrimination Claim. If you have any questions or want to get more detailed information about what you can do, please contact us for a no cost online review of your case.

For a more detailed understanding of employment discrimination and the litigation process, you can also download our e-book titled, “You’re Pregnant, You’re fired!” If you want to learn more about filing a pregnancy discrimination claim in Washington, DC, see our blog post titled, “How to File a Pregnancy Discrimination Claim in Washington, DC.” Whatever you ultimately decide to do, you should learn as much as you can to make an informed decision.


You're Pregnant? You're Fired!

Protecting Mothers, Fathers and Other Caregivers in the Workplace A book by respected trial lawyer and former federal prosecutor Tom Spiggle for mothers, fathers and caregivers facing caregiving or pregnancy discrimination in the workplace. Pregnancy is hard enough. Going through it with a boss who is unsympathetic – or even downright hostile-only makes it more difficult. And when that disapproval turns into discrimination, it can hurt your job, your future and your children’s future. But fighting back isn’t easy either. Federal and state laws protect pregnant women and caregivers from discrimination, but they are filled with loopholes and exemptions that are all too often abused. Your employer will have lawyers who know how to work the system.

Learn more
Three Things You Can Do Right Now.
  1. Tell your company in writing that you are pregnant.
  2. If you suspect discrimination, report it to human resources in writing.
  3. If you find yourself holding a pink slip, call the Equal Employment Opportunity Commission. And, as always, contact a lawyer.

Frequently Asked Questions

My company doesn’t yet know that I’m pregnant. Should I tell my boss or someone in HR?

I take it from your question that you are not showing! There is no one right answer here. Clearly, there are privacy concerns about revealing this information. For instance, most people don’t want to announce before the first trimester in case of miscarriage. The tricky part is that, if your company would be inclined to fire you for being pregnant, it might be difficult to prove that it did so, if you don’t have evidence that it knew. So, if your boss overhears you talking to your best friend about which stroller to buy and surmises that you are pregnant, it will be difficult to prove that was his motivation if, the next day, he decides that he doesn’t need a pregnant employee (and is smart enough not to admit it). In contrast, if you sent him an e-mail the prior week with the subject heading “I’m pregnant!” then it’s an entirely different story if he subsequently hands you a pink slip.

My company has 14 employees, so it just misses the 15-employee threshold for federal law to apply. Do I have any legal protection if my boss tries to let me go?

You are right that your employer is not bound by the Pregnancy Discrimination Act if it has fewer than 15 employees. There are a couple of things to note here. First, the EEOC is expansive in how it gets to 15. It includes any workers who could be considered employees of the company, even part-time employees. For instance, let’s say your company has 14 employees in the office. However, it turns out that the boss employs his sister full time as a bookkeeper but improperly classifies her as a contractor. The EEOC will likely find that the company has the required 15 employees for the purposes of federal employment law. Second, let’s assume your company does really only have 14 employees. It is possible that you have some protection under state law or even a county ordinance. For instance, the D.C. Human Rights Law, which protects pregnant employees, applies to all companies within the District, regardless of the number of employees. If you are in Arlington, Virginia, you are covered by the Arlington County Human Rights Code, which covers any employer with four or more employees. But sadly, it is possible that you have little protection if your state or county does not have a law covering employers with 14 or fewer employees.

I work as an accountant for a small firm in South Carolina. We have five employees, including me, and I am pregnant. I like the owner a lot. He has been a mentor to me. Our company was recently purchased by a big accounting firm in D.C. with some 200 employees. My owner said that everyone would be offered a position there, and that I could work remotely from South Carolina. But last week, he came to me and said that, unfortunately, the new accounting firm in D.C. said that “it wouldn’t work” to hire me too. He was very apologetic and said that he would help me find a new job in the industry. He is a well-known figure in my specialized area of accounting, so his recommendation carries weight. I bet he can find me another job. Then later he offered me an “early end-of-year bonus.” It was nice but strange because, well, it’s not the end of the year. My question is, do I have a case? If I do, is it worth it to sue?

The short answer is, yes, you have a case. Your old boss isn’t covered by federal law because of the size of the firm. But there is no question that the D.C. firm is covered by the D.C. Human Rights Act as well as federal law. And you can be sure that the last thing the company wants is a lawsuit by a high-performing pregnant employee. If you bring the case and win, you’d be entitled to lost wages, which you haven’t accrued much of, emotional distress damages, punitive damages and possibly front wages. I’m assuming that you’ll likely be able to get a new job soon. So you don’t stand much to gain in the wage of a recovery for wages. Certainly you could be awarded something for the emotional distress, but likely not much:$10 to $20 thousand. A jury might award punitive damages against the big bad company but not likely against your boss, who knows this is wrong and at least is trying to make it right. But regardless of the price tag on your claim, there is no question that if you threaten a lawsuit, any goodwill between you and your boss will dry up quickly. If you feel strongly about this and are willing to tank your relationship with your boss, then you have something to pursue. But it sounds like this may be an instance where the cost-benefit analysis tilts in favor of moving on while milking your boss’ appropriately guilty conscience for an entry to a different and perhaps better job.

I have a unique problem. It’s not that my boss dislikes that I am pregnant – it’s that he seems to like it too much. Ever since I started showing, he stops and lingers at my desk, which he never used to do before. He even says things to me like, “There’s nothing more attractive than a woman with child.” First, of all, eww! This makes my skin crawl. But I want to know if this possibly counts as pregnancy discrimination.

Blech! The short answer to your question is that this does not (yet) count as pregnancy discrimination, but it might turn into a violation of the law if you end up demoted or fired because, it turns out that this letch also holds the view that women “with child” should not get promoted or perhaps even work at all. Even assuming that doesn’t happen, this is approaching hostile work environment territory. If your company has an internal grievance policy, use it, even if you think it is not worth the paper it is printed on (and many aren’t). The reason is that your company may have a rock-solid defense to much of what your manager does if you fail to report it to the company. But if your boss ups his game and does something like make a pass at you or even touches you in a sexual way, it’s a whole different ballgame. In addition being squarely in hostile work environment territory, your boss may also be criminally or civilly liable under assault and battery laws.

How do I file a pregnancy claim in Maryland

Click here for details on filing a pregnancy claim in the State of Maryland https://www.spigglelaw.com/practice-areas/pregnancy-discrimination/file-pregnancy-claim-maryland/

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