Short answer, yes. Long answer, yes, but take a careful look at the facts and circumstances.
Are pregnant women protected class members?
State, federal and even local laws create “protected classes” of individuals afforded special status in employment, housing and public accommodations. The list includes race, age, religion, disability, gender, and sexual orientation, among others. It’s unlawful to fire an employee because she is Asian American, but not because she is left-handed. (Unless she’s the beneficiary of an employment contract or collective bargaining agreement upsetting the presumption of at-will employment.) However, protected class members are subject to discipline no differently from non-protected class members if they fail to meet their employer’s job expectations or engage in workplace misconduct—with a minor qualification that disabled individuals are entitled to “reasonable accommodations” to assist in performing their job duties.
Discrimination based on pregnancy can be categorized as a form of gender discrimination, because only women are capable of becoming pregnant. To remove any doubt or ambiguity, Congress amended Title VII of the Civil Rights Act in 1978 to provide that “on the basis of sex” includes “pregnancy, childbirth, or related medical conditions.” The Minnesota Human Rights Act contains similar language, defining “sex” to include “pregnancy, childbirth, and disabilities related to pregnancy or childbirth.” Minn. Stat. § 363A.03 subdiv. 42. Minnesota law provides additional protections for leave under the Minnesota Pregnancy and Parental Leave Act, allowing up to 12 weeks of unpaid leave for the birth or adoption of a child. Minn. Stat. § 181.941. This is critical, because the statute covers all employers with 21 or more employees at one site, unlike the federal Family Medical Leave Act, which only applies to employers having 50 or more employees. Separately, Minnesota employers are required to grant pregnant employees reasonable accommodations, which may include more frequent breaks, seating and lifting limitations. Minn. Stat. § 181.9414.
Anatomy of A Pregnancy Discrimination Case
In Campbell v. St. Jude Med., (D. Minn. 11/2/2018), Federal District Court Judge David Doty denied summary judgment to an employer seeking dismissal of a claim brought by a former employee who was passed over for a promotion after becoming pregnant and then fired shortly after returning from leave. Plaintiff Tanya Campbell was hired in February 2014 by St. Jude, a medical device manufacturer, to the position of clinical specialist, essentially a sales support position. By all accounts she performed well until September 2014, when according to Campbell, things began to change after announcing that she had become pregnant. Although she was accommodated to the extent of being exempted from x-raying activity and later travel, an interview for a promotion was abruptly called off. Her supervisor, also female, started to document performance deficiencies for the first time, complaining that Campbell was “unresponsive, difficult to work with, unwilling to work outside normal business hours, and sometimes unprepared.”
In January 2015, Campbell was denied an expected promotion from CSII to CSIII. St. Jude’s stated reason, that she had not been in the position long enough, was contradicted by the written policy, which states the decision is to be “performance based.” Campbell emailed HR, complaining of what she perceived to be pregnancy discrimination. Then in February, she was given a Memorandum of Expectation, setting forth several areas for improvement. Campbell’s year-end performance review was generally positive, except in areas of teamwork and collaboration.
Upon returning from pregnancy leave, Campbell’s supervisor continued documenting performance reviews. A thirty-day performance improvement plan followed, and then termination, after which Campbell filed suit.
Discrimination cases may be proven one of two ways: with direct evidence showing an illegitimate criterion motivated the decision or under the McDonnell Douglas burden shifting analysis. Under the test, a plaintiff employee must show a prima facie case, meaning she (1) is a member of protected class, (2) was qualified for her position, (3) suffered an adverse employment action and (4) was discharged under circumstances giving rise to an inference of discrimination. If the plaintiff meets this evidentiary threshold, the burden shifts to the defendant employer to set forth a non-discriminatory reason for termination. If the employer meets this low threshold, the burden shifts back to the plaintiff to prove that the stated reason was pretexual.
Applying the latter test, the Court ruled that a jury could find that all four criteria were met. Crucially, the court noted that “Campbell has credibly supported her theory that her pregnancy triggered a narrative designed to lead to her termination,” noting in particular the before/after contrast in her treatment by a supervisor. The court also noted that she was fired less than three months after returning from pregnancy leave, which, in this case and under these facts, was “sufficiently close in time to establish a connection between her pregnancy and termination.”
Next, the Court determined that St. Jude met its burden of showing a legitimate non-discriminatory reason, namely documented evidence of poor performance.
Finally, addressing pretext analysis, the Court emphasized “genuine questions as to the accuracy and extent of the performance issues” upon which Campbell was denied a promotion and ultimately fired.
The Campbell decision places special emphasis cases on the “before and after” treatment of an employee. Did you received commendations for your performance on the job before informing your employer of your pregnancy (or reporting a violation of law), and then suddenly started getting written up for perceived deficiencies? This is especially so in a job where quality of work is evaluated on a subjective basis—“She’s not a team player,” as opposed to “Her error rate is excessive in relation to that of her peers.”
Secondly, it is important to report violations of your legal rights and to carefully record what is going on, in a journal or better, in emails documenting the occurrence of events. For example, an email to a supervisor or manager beginning with the words “Please allow this to confirm…” provides evidence of what happened, particularly where no response is received disputing the statement. In many instances, an employee reporting unlawful pregnancy discrimination (or other forms of unlawful discrimination, e.g., age or race) may also have a claim of retaliation if she is fired not long after raising the issue with her boss or HR.
Thirdly, timing is critical for proving causation. In Campbell, an adverse action three months later was sufficient to create an inference of retaliation. However, the longer the delay, the more difficult it is to prove.
Contact Our Pregnancy Discrimination Attorneys
If you were terminated from employment or denied a promotion after becoming pregnant or returning from pregnancy leave, please contact the experienced employment lawyers at Wanta Thome PLC for a free initial consultation.