Many women face adverse employment actions during their pregnancy or because of illnesses they suffer as a result of being pregnant. Seeking justice in the court system on this basis is more complex than it seems.
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits various forms of employment discrimination, including discrimination on the basis of sex. In 1978 Congress amended Title VII with the Pregnancy Discrimination Act (“PDA”). The PDA provides that women cannot be discriminated against on the basis of pregnancy, childbirth, or related medication condition.
To show that there has been pregnancy discrimination the plaintiff must show that her pregnancy was a motivating factor for the negative employment decision. The plaintiff can use direct evidence (i.e., an affirmative statement from a supervisor that the pregnancy is the cause of the adverse employment action) or circumstantial evidence.
Where a plaintiff asserts circumstantial evidence to prove her case, the Court must use the burden-shifting analysis provided by the Supreme Court in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hite v. Hill Dermaceuticals, Inc., 619 Fed. Appx. 908 (11th Cir. 2015).
What does this mean?
It means that a plaintiff subject to pregnancy discrimination has to first establish four things: (1) that she is a member of a protected group (she was pregnant or suffering a pregnancy related illness); (2) she was qualified for the position; (3) she suffered a negative or “adverse” employment action; and (4) that the employment or disciplinary policies were applied differently to her.
Once the plaintiff meets this burden by establishing all of the four items above, the burden shifts to the employer, and the employer can then articulate a legitimate nondiscriminatory reason for the employer’s action. Yet, the ping pong doesn’t end here.
If the employer is able to communicate this legitimate nondiscriminatory reason, the plaintiff then has to show that this purported reason is a “pretext”. Specifically, the plaintiff mush show that the employer’s reason is false, and the discrimination is the real reason for the adverse or negative employment action.
Recently the Eleventh Circuit affirmed the dismissal of the plaintiff’s pregnancy related claim in Hite v. Hill. The Eleventh Circuit held that her claim failed because she could not establish that the employer’s reason was a pretext. This case highlights the difficulty in meeting the high burden placed on pregnant women trying to assert and protect their rights in the workplace.
Note also that pregnant women who suffer discrimination may seek damages not only under Title VII and the PDA, but potentially pursuant to the Family and Medical Leave Act (”FMLA”), the American with Disabilities Act (“ADA”), and applicable state laws.