The Continuing Problem of Pregnancy Discrimination

Hofstra Law School Professor Joanna Grossman and Find Law Reporter wrote an interesting April 15, 2008 story entitled A Marked Increase in Pregnancy Discrimination Claims and Other Key Developments Illustrate the Continuing Struggle of Pregnant Workers - Including Pregnant Attorneys:
Part Two in a Two-Part Series of Columns

In this article Professor Grossman outlines some of the challenges facing pregnant women at work. As the article states:

Consider the Seventh Circuit's ruling in Troupe v. May Department Stores. There, a pregnant sales clerk was fired just one day before she was scheduled to take maternity leave, after a series of warnings about excessive tardiness. Was she fired because she was often late to work, or as punishment for being pregnant and planning a maternity leave? The court ruled that she had failed to prove that the employer made the decision because of her pregnancy, as opposed to because of her frequent lateness.

Troupe illustrates some of the limits of the PDA. First, even if a pregnant woman performs up to the employer's standard, she still bears the burden of proving that any adverse decision was made because of her pregnancy. And this can prove difficult. In a typical (non-pregnancy) employment discrimination case, the plaintiff may be able to find a counterpart of a different race or gender who performed similarly, yet was treated differently. Yet the likelihood that a plaintiff will find the "hypothetical Mr. Troupe" suggested by the Seventh Circuit - a man who was not fired for being chronically late due to a medical condition for which he will soon commence an extended leave - is low. So is the chance that the employee with happen to find direct evidence of the employer's animosity towards pregnant workers.

Second, to the extent that the plaintiff's pregnancy actually made her unable to perform up to the employer's standards, the PDA provides no absolute protection against adverse action. If morning sickness in fact made her late, then the employer could legally have fired her for tardiness (even though it was tardiness caused by pregnancy), as long as there is no reason to believe it would have treated a comparably tardy male employee differently.

Mitchell H. Rubinstein