Pregnancy discrimination (link) happens every day. Sometimes it appears overtly: comments about the pregnancy, child care needs, or ability to work; but often it appears more subtly – reassignment of duties following a leave, for example. In either case victims of pregnancy discrimination have the right to step forward and make a complaint about what has happened. In those cases, we often see several common defenses by employers. Here are three:
You were a poor employee
The most common defense, in almost every employment discrimination lawsuit including pregnancy discrimination lawsuits, is that the employee was a “poor employee.” Without fail, after a victim of discrimination has been fired or quit, and has accused the company of discrimination, suddenly this victim was a bad employee.
The good thing about this defense is that it's difficult to prove if the employer does not have any real, documented evidence. Often the employer will try to come up with some facts to support the defense (for example, you were five minutes late three times last year), but in the end if the employee does not have a documented history of performance problems, the defense will likely fail.
Which brings us to the performance improvement plan, or PIP (link). Sometimes an employer will know the rules of the game, and start a series of write ups or place the employee on a performance plan. Make no mistake, when this happens the employer is setting the employee up to be fired. The key for victims of pregnancy discrimination is to look at the facts: how soon after a pregnancy did the write ups/PIP start? Were there any problems before the pregnancy? Often there were not, and the write ups/PIP only started shortly after the pregnancy. This is not a valid defense, and will be easy to challenge.
"Our business needs have changed"
Often the victim of pregnancy discrimination has recently been out on a leave. The employer may have seemed willing to put her back on the schedule when she returned, but suddenly the boss isn't answering calls, isn't responding to emails, and seems generally uninterested (see our case study here LINK). When the employee finally reaches the boss, she's told that “things have slowed down”, or that “our business needs have changed.” And she's terminated, or simply not brought back.
As with the poor employee defense, employers in a pregnancy discrimination lawsuit must show that the business needs had, in fact, changed to such a degree that they simply could not afford to keep the victim employed. This is generally either supported by the proof or it is not. Instead, in many cases, it becomes clear that not only did business not slow down, but in fact the company hired one or more non-pregnant employees who have plenty of work.
"Those statements that you heard were just isolated"
Employers, on the defensive, love to say that statements referencing pregnancy, made to the employee about her ability to return, for example, were just isolated and did not reflect any real discrimination. This is a problem for a couple of reasons.
Let's say the employer made a few comments after the employee announced that she was pregnant. These included a reference to her belly, a comment about missing work, and a comment about having kids running around disrupting everyone. In a vacuum, sure, these maybe were isolated. But when you look at them together, and consider that the victim was terminated right after she had the baby; or was demoted when she returned, they all contribute to the larger picture – that she was the victim of discrimination.
The point here is that we know the common defenses in these cases, and if you are prepared to ask the right questions, and look for the right information, you can often poke holes in these defenses and establish that the real reason for the employer's actions was pregnancy discrimination.
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If you have questions about pregnancy discrimination contact us today. We're happy to help.