Pregnancy discrimination - rights, remedies, and defenses.

• Author: Hedrick, Alexandra Krueger

Congress enacted the Pregnancy Discrimination Act (PDA)(1) in 1978 to add pregnancy as a protected status under Title VII of the Civil Rights Act of 1964.(2) The PDA requires equal treatment with respect to terms, conditions, and privileges of employment, including leaves of absence and benefits. The PDA does not require preferential treatment.(3)

The more recent enactment of the Americans With Disabilities Act of 1990 (ADA),(4) the Civil Rights Act of 1991, and the Family and Medical Leave Act of 1993 (FMLA)(5) highlighted the PDA!s limitations and provided rights in circumstances not previously covered. This article discusses rights, remedies, and defenses under these laws for employees and employers.

Origin of the PDA

The Supreme Court held in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), that a comprehensive disability insurance plan did not violate Title VII by failing to cover pregnancy-related disabilities. In response, Congress added a subsection to Title VII to provide that sex discrimination includes discrimination on the basis of

pregnancy, childbirth or related conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.(6)

Pregnancy, Childbirth, and Related Conditions

Courts have permitted claims by employees who are pregnant, are trying to become pregnant,(7) have miscarriages,(8) have or consider having abortions,(9) give birth, and have medical conditions relating to pregnancy and birth. An employer also violates the PDA by limiting pregnancy benefits for wives of male employees when compared to more extensive health plan coverage for other conditions of spouses of male and female employees.(10) Status as a "new parent" is not within the purview of the PDA.(11)

Disparate Treatment

Most pregnancy discrimination cases involve disparate treatment -- that is, treating pregnant employees less favorably than nonpregnant employees. Disparate treatment claims involve intentional discrimination. Thus, an employer cannot be liable in a disparate treatment case unless it knows about the condition.(12)

Disparate treatment cases are established by direct evidence or through the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Direct evidence is evidence that "if believed, would prove the existence of the fact [in issue] without inference or presumption."(13)

A prima facie case is established under the McDonnell Douglas framework if 1) plaintiff is a member of the protected group; 2) plaintiff is qualified for the position; 3) plaintiff suffers an adverse effect on employment; and 4) plaintiff suffers from differential application of work or disciplinary rules.(14) Alternatively, the fourth step may consist of replacement by a nonpregnant employee.(15) The defendant may then present a nondiscriminatory reason for its action. The plaintiff must show that the reason is a pretext for discrimination.

Most cases under the PDA involve either employment termination or discriminatory application of leave policies. Liability may exist when nonpregnant workers were retained after violating the same rules or suffering from the same poor performance.(16) Timing (soon after the employer learns of the pregnancy) is helpful for the plaintiff but not determinative.(17)

An employer faced with a termination case should be prepared to explain the legitimate reason for its action. In addition to typical business reasons, grounds for termination recently upheld by courts have included the fact that the employee became pregnant while having an affair with a high level employee(18) and the application of a religious school's nondiscriminatory policy regarding sex outside of marriage.(19)

In general, employers fare better with evidence that the termination decision was made or, at a minimum, that the employee was counseled, before the employer knew of the pregnancy. If a reduction in force led to the termination, the employer must be prepared to explain the financial or other business factors leading to the decision. Other facts supporting nondiscriminatory intent include knowledge that the employee was pregnant when hired and a record of past nondiscriminatory treatment of other pregnant employees.(20) The fact that the decisionmaker...