Case Study - Pregnancy Based Sex Discrimination - "Sarah"
A “typical” example of pregnancy based sex discrimination situation is a former client of ours, a young woman (we'll call her Sarah), age 29, who had worked as an architect for the “Smith Company” for five years. Smith Company had about twenty employees, and was known throughout New York for its cutting-edge architecture work.
Sarah had a positive work history, had never received any negative performance reviews and, while occasionally “butting heads” with the owner of the company, had generally gotten along well with her co-workers. Sarah was a very bright and capable architect.
Sarah and her husband decided to start a family. When she was four months pregnant she felt it appropriate to inform her employer. She was initially met with what could best be described as a cool reaction disguised as excitement. During the initial conversation, the owner, a single man, casually asked her if this meant she was going to start bringing her baby to work. Sarah shrugged this off as a joke, but over the course of the next several months the passive-aggressive comments became more frequent.
Comments about her pregnancy began to occur with more frequency, such as “how can you see past that belly,” or “are you fully dilated?” (yes, we have seen this exact comment made in the workplace). Then, towards the end of her pregnancy, her boss asked her if her husband planned to share in the “burden” of child rearing and suggested that perhaps her husband (a work from home freelance writer) would be interested in staying home with the child so that Sarah could focus on her job.
By this point Sarah was about to have the baby, and was legitimately concerned about whether her employer had it out for her because of the pregnancy. While she had heard that there have been maternity leaves in the past, she had never actually observed one take place. Given her concerns, she decided to speak with her boss prior to going out on leave. She asked him, point blank, if she would still have a job when she returned. His response: “yes, of course, just call us a month or so before you come back.”
Sarah had the baby, took a brief maternity leave (she was the first woman in company history to take the leave), and was ready to return. Only when she called a month ahead of time – as instructed – her boss wouldn't take her call. Instead he sent her an email, telling her to speak with the Vice President. So, she called the VP, who told her that they were “seeing what they can do to fit her in,” as “business has slowed down” recently. Sarah, now panicked, called her boss again. When he finally got back to her, he told her sorry, but “due to a decrease in business we're not going to be able to bring you back.” But Sarah knows that they recently hired more employees. Sarah is now left with a new child and no job.
When Sarah first contacted us she didn't know what to make of the situation. She had a newborn baby at home, was tired, and being a strong and intelligent young woman never expected to be the victim of pregnancy based sex discrimination. Sarah, like many of the victims who come to see us, also felt that she was not “the kind of person” to file a lawsuit. (Link).
We sat with Sarah and reviewed her situation, including some exchanges with her boss that had taken place over email (always helpful). We believed from our review that Sarah had claims for pregnancy based sex discrimination under both the Pregnancy Discrimination Act (link) (Title VII of the Civil Rights Act) as well as the New York Human Rights Law (link).
Following our discussion, we gave Sarah a few options. First, she could do nothing and walk away. Second, she could file a complaint of sex discrimination with the EEOC (link), and during the process see if her former employer would be interested in settling the claim. Finally, Sarah could bypass the EEOC and file a complaint in New York State court for sex discrimination under the Human Rights Law.
Sarah did not want to sue her former employer, but she also did not want to let this clear discrimination go. Sarah felt (and we agreed), that it was important to let this (predominately male) so-called cutting edge firm know that its behavior was simply unacceptable in the 21st century. Knowing that Sarah did not wish to file a formal lawsuit unless necessary, we encouraged her to file a charge of pregnancy-based sex discrimination with the EEOC.
On Sarah's behalf, we prepared and filed the EEOC charge. The employer submitted its opposition, denying any wrongdoing, which we then reviewed in detail with Sarah to point out any clear inconsistencies in the positions that the employer had taken (note: they often taken inconsistent positions when they are trying to cover something up). It became clear to us that while the employer was claiming it “let Sarah go” because of an economic slowdown and poor performance (raised for the first time after the EEOC charge was filed), there was no real proof to confirm this.
We filed a strong rebuttal to the employer's EEOC response, in which we made it clear that their defenses were weak. Shortly after we submitted the response we received a call from their attorney, wishing to discuss settlement.
We were able to settle Sarah's claim after about a month of back and forth negotiation. Sarah was very pleased with the result and, we believed, we were able to send a strong message to her former employer that its behavior was unacceptable. Sarah did not get her job back, but she was able to put herself in a strong position moving forward.
If you have questions about a case of pregnancy or sex discrimination give us a call. We are happy to help.
*Note: Because of confidentiality agreements this case study is a combination of multiple cases in which D'Orazio Peterson was involved. Every fact contained in this case study is from an actual “real world” example.
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Practice area(s): Employment / Labor