Pregnancy Discrimination

Employers are not permitted to discriminate against employees who are pregnant. A federal law, the Pregnancy Discrimination Act, 42 U.S.C. §2000e (a) (“PDA”), amended Title VII, which makes it unlawful to discriminate against an employee based upon sex / gender. The PDA prohibits an employer from discriminating against an employee based upon the employee’s pregnancy. The PDA makes it clear that the terms “because of sex” or “on the basis of sex” include pregnancy, childbirth, and related medical conditions; and women affected by pregnancy, childbirth or related medical conditions . The United States Court of Appeals for the Third Circuit has held that the protection afforded pregnant women under the PDA also extends to women who have elected to terminate their pregnancy by a surgical abortion. Pregnancy discrimination is also protected under the Pennsylvania Human Relations Act (PHRA).

Pregnancy discrimination claims differ from other types of unlawful discrimination in that the physical obviousness of the alleged discriminatory factor varies, both over time and as between different affected employees. As a result, pregnancy discrimination cases are treated differently by the law than other types of discrimination cases. For instance, when an employee’s pregnancy is at an early stage it is not necessarily evident to the employer; therefore, courts do not presume that the employer knew of the pregnancy. Therefore, the employee must offer evidence that the employer had knowledge of an employee’s pregnancy. Pregnancy also differs from most other protected personal attributes in that it is not permanent (as opposed to an employee’s race or national origin). While some effects of pregnancy linger beyond the act of giving birth, at some point a female employee is no longer affected by pregnancy, childbirth, or related medical conditions. While courts have held that the PDA does not require that employers treat pregnant employees better than other temporarily disabled employees, the PDA does require that employers treat pregnant employees no worse than other temporarily disabled employees.

Wherever an employee’s pregnancy or related medical condition is a motivating factor for the employer taking an adverse employment decision against an employee, pregnancy discrimination may be found. The Pregnancy Discrimination Act does not require preferential treatment for pregnant employees. It requires that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to perform their job. Thus, in order to prove what the law calls disparate treatment based upon pregnancy (treating a pregnant employee differently than an employee who is not pregnant), an employee may use direct evidence of intent to discriminate based upon pregnancy (i.e., a definitive statement from management that we are terminating your employment due to your pregnancy), or much more commonly, through indirect evidence, from which an intent to discriminate could be inferred.

In order to prevail in a pregnancy discrimination claim through indirect evidence courts apply a burden-shifting test. To establish what the law calls a prima facie case of pregnancy discrimination, an employee must demonstrate that:

  1. he employee was pregnant;
  2. The employer knew that she was pregnant;
  3. The employee was qualified for the job that she was performing;
  4. The employee suffered an adverse employment decision, such as the termination of employment; and
  5. There was some connection between the pregnancy and the adverse employment action, which then permits the employee to raise an inference of discrimination.

In order to show a connection between the pregnancy and the adverse employment action, an employee can demonstrate that similarly situated, non-pregnant employees were treated more favorably or produce other evidence which may include temporal proximity (closeness in time between the adverse employment action and the pregnancy). In addition, an employee must show that the reason the employer alleges was the true reason for the adverse employment decision is merely a pretext (cover-up for discrimination).

We often successfully represent employees who are discriminated against based upon a pregnancy. Call Abramson Employment Law at 267-470-4742 or contact us online to discuss your legal options for any claim for pregnancy discrimination.

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