As leading pregnancy discrimination lawyers, workers often contact our firm wondering how they prove pregnancy discrimination. The answer requires a basic understanding of the laws protecting pregnant women and new mothers.
If this brief guide does not answer your questions, our experienced pregnancy discrimination lawyers can help you understand your rights. Often, even if you do not have a claim for “pregnancy discrimination,” you may have related legal claims. This is why you should confidentially talk to a lawyer if you believe you are being treated unfairly or illegally at work.
What is Pregnancy Discrimination?
Put simply, proving pregnancy discrimination requires you to prove that you suffered an “adverse employment action”—some tangible harm, such as having your hours or pay cut, being demoted, being denied a promotion, terminated, etc.—because of your pregnancy. The “because of” pregnancy legal standard requires you to show that your pregnancy was a motivating reason for the adverse employment action.
You can show that your pregnancy was a motivating reason for an adverse employment action in a variety of ways. (These methods of proof are the same in all kinds of discrimination cases.) The following are some examples:
The employer’s “reasons” are lies. Maybe you were terminated because you had a “bad quarter,” but in reality, you outperformed all but one of your colleagues (none of whom were pregnant). The employer’s reason in this case is a lie, and suggests that they are hiding the real reason for the termination—your pregnancy.
The timing is suspicious. Maybe you had great reviews up until your pregnancy, and then you kept doing the same thing as before. You were performing well. All of a sudden, you were written up for minor “issues” that no one cared about until you disclosed your pregnancy, and then were terminated because of the write-ups. The timing of these write-ups and the termination is suspicious. Unless there is some other, legitimate explanation, it looks like pregnancy discrimination.
In one example, an employer revoked a pregnant woman’s job offer 20 minutes after she asked her to-be supervisor about their maternity leave policy. Why? The employer claimed they needed someone “long-term” and assumed a pregnant worker would not be reliable as a permanent employee. (Note that this is also probably gender discrimination. The employer stereotyped mothers as unreliable employees.)
You were treated worse than non-pregnant employees. Maybe it is normal at your organization for people to receive a three-step disciplinary process before termination, and no one has ever been terminated without that procedure. You were an exception, and you just so happened to be the only one who was pregnant. This strongly suggests that the employer’s motives were discrimination, and you were terminated “because of” your pregnancy.
Your employer made comments about pregnancy being a burden. Often, employers are smart enough to keep their discriminatory motives under wraps. Sometimes, though, employers say obvious things that prove they resented your pregnancy and took adverse employment actions because of it. Maybe they said that they just “couldn’t have someone going on leave” or that “pregnant women never really want to come back to work after leave” or something of that nature. These comments evidence discriminatory intent and are evidence of pregnancy discrimination.
You May Have Claims Besides Pregnancy Discrimination
When clients or prospective clients contact us and say they are victims of pregnancy discrimination, often they are actually complaining about other violations of law—not pregnancy discrimination per se, but violation of pregnancy disability leave laws, pregnancy harassment, or violation of various laws intended to protect breastfeeding mothers when they return to work. You can learn more about the difference between discrimination, harassment, and retaliation here.
For example, pregnant workers in California are entitled to leave under the Pregnancy Disability Leave Law (PDLL) if their employer “regularly employs” five employees. You are not required to have worked for any minimum length of time (as compared to under CFRA or the FMLA, which are discussed below) to qualify. You are entitled to a “reasonable” amount of leave, defined as up to four months, under the PDLL. Your employer may require medical certification at the time you request PDLL or within a few days after.
Maybe you are terminated right after you take leave. Your employer may not have anything against your pregnancy in particular, but may think that employees who take the full amount of leave to which they’re entitled under the law are “lazy” or aren’t “committed.” Even if this is not proof of pregnancy discrimination, it is retaliation for you exercising your rights under the PDLL, and you still have a claim for wrongful termination.
Another type of claim that often comes up is harassment based on your pregnancy or status as a breastfeeding mother. Co-workers make vulgar comments about your changing body, your need to take lactation breaks, etc. This can be sexual harassment as well.
You may also have gender discrimination claims based on your status as a mother. Many employers think that mothers aren’t committed to their jobs and give men raises around the time they become fathers, while demoting women or placing them on a “mommy track” where they can no longer earn bonuses or pay increases commensurate with their skills or efforts.
You Do Not Need "Written Proof"
Many people do not have "written proof" of their discrimination claims. That's okay! As noted above, you can use a variety of types of evidence to provide your claims. Evidence can be “circumstantial,” meaning discrimination is a reasonable conclusion even without an outright admission. Most employment cases rely on circumstantial evidence. In fact, it is rare that an employer is foolish enough to admit in writing that they discriminated.
Contact an Experienced California Pregnancy Discrimination Lawyer for Further Advice
Are you worried that your employer might be discriminating, retaliating, or harassing you because you are a new or expecting mother, or because of your pregnancy? You should contact an experienced employment lawyer to talk about your specific circumstances and understanding if you have a case for pregnancy discrimination.