Here are the facts: Women in the workplace who are pregnant or who have recently given birth are a protected class according to Title VII of the Civil Rights Act of 1964. According to this landmark legislation, “[…] women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefit […].”
It’s not a complicated concept, and despite clear legal language as well as a long history of protections against discriminatory actions in the courts, thousands of employers every year continue to treat women differently when they become pregnant or take federally protected time off for maternity.
It’s not accurate to say this is true of all or even most employers, and hopefully if you are considering adding a child to your family, are pregnant or have recently given childbirth you are fortunate enough to work in a supportive environment.
Unfortunately, however, far too many women find that a pregnancy or birth of a new child coincides with the start of unfortunate and illegal actions by their employer.
Knowing how to recognize pregnancy discrimination and the many different forms it can take is the first step in stopping the cycle.
Recognizing Discriminatory Actions
The most obvious and audacious form of discrimination occurs when an employer lays off or fires a protected employee without appropriate cause and in a discriminatory way. For example, if you were fired after taking disability leave or requesting an accommodation for your pregnancy you should know that you may be in position to file a discrimination claim against your employer.
The law does not expect you to put yourself or your baby in danger to keep your job. Your employer isn’t allowed to expect it either.
Not all discrimination, however, takes a form so blatant as being fired or laid off.
Often discrimination happens to women when they are passed over for advancement or merit increases that they’ve earned because they have decided to have a family. It can take the form of mistreatment, abuse, changed hours and responsibilities, lack of access to opportunities or being denied benefits that other employees at a similar level enjoy. For example:
· An employee who is taken off a high profile project after becoming pregnant
· A person with a new baby who is selected to be laid off when other less competent employees are retained
· Being denied a necessary accommodation due to a medical need during a pregnancy
· A new mom who is excluded from trainings provided to other similar level colleagues
This New York Times story from June 2018 discusses many of the ways that employers can and have discriminated against women in their workforce. As noted in the article, when it comes to professional jobs often, “the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted a bonus season.” The article goes on to note that on average each child tends to cut 4% off a woman’s hourly wages.
The reality is that discrimination is insidious, and the most common forms it takes is one where women who are pregnant or recently given childbirth are treated differently and at a disadvantage because of that choice. Of course, businesses virtually never come right out and say “we are firing you because you are pregnant,” or “we aren’t giving you this promotion because you just had a baby.” Gathering and collecting evidence that you believe demonstrates discriminatory treatment, then, become vital in bringing a successful claim.
What Should You Do?
Discrimination can be hard to prove, and the more you focus on building evidence and documenting your situation, the better positioned you will be to have a successful outcome. We have a white paper on employer discrimination that you can find here. In this document we talk about some of the questions you need to ask yourself if you think you are being treated in a discriminatory way, particularly in a situation where you were terminated. These are questions like:
· Was the process for determining who was let go truly objective?
· Were the criteria applied equally to everyone?
· Did your employer keep less qualified employees even though you were fired?
· Were you treated differently from your colleagues?
As we mentioned before, however, not all discrimination ends with being fired or laid off. These far more common situations where a protected employee is treated unfairly or differently are known as Disparate Treatment Claims, and these can be filed under federal protections as well as state protections which can be different.
Should you decide to pursue a claim against your employer you will need to be able to prove several different things:
1) That you were a member of a protected class
2) That you were performing competently prior to the actions
3) That you were adversely impacted or treated differently
4) That the employer’s actions were motivated by discriminatory reasons
Not surprisingly, that last element is often the trickiest to actually prove, which is why evidence and documentation become so important. Taking the time to even just write down dates and times that you encountered actions you think may be discriminatory can make a huge difference. Even if one or two things don’t prove it, if you can show a pattern of changed and discriminatory behavior it can help your case substantially.
This does not mean you should violate your terms of employment or other people’s privacy, and it’s important to make sure that in documenting your own case you don’t inadvertently impact someone else’s rights.
One additional item to keep in mind is that there may be specific time limits for filing your claim. Gathering evidence is good, but at some point you want to consider talking to a professional about whether you have a potential case. The last thing you want to have happen is to decide you have a case, but so much time has passed since it happened that you can no longer file a claim.
No one wants to think about having to hire a lawyer or going through a process of filing a discrimination claim. We know that can be a difficult choice, and one that every person has to ultimately make on their own.
If you do think you’ve been treated unfairly and illegally, though, there are people ready to help you. We work with people every day who fight back against abuse by employers who mistreat employees, and we are proud to step in and make sure people get the legal protection and benefits they deserve.