Executive Summary: When the Pregnancy Discrimination Act (PDA) was enacted in 1978, employers were clearly put on notice that they are forbidden from discriminating on the basis of pregnancy. Unfortunately, charges of pregnancy discrimination are still being litigated, often with expensive consequences for employers. In August 2015, the EEOC announced that it had filed suit under the PDA against Dimensions Healthcare System claiming the Laurel, Maryland employer denied a promotion to a woman because she had taken maternity leave and, instead, promoted a less-qualified male employee.  The EEOC is seeking lost wages, compensatory and punitive damages, and injunctive relief in the lawsuit.

Over the last five fiscal years, the EEOC has received over 18,000 pregnancy discrimination charges. The agency claims significant success in resolving these charges in favor of the women claiming discrimination, citing statistics on its website that report over $74 million obtained in monetary benefits during the same five-year period. Moreover, these figures do not include money received through litigation or pregnancy discrimination claims handled by state agencies.

Under the PDA, an unlawful employment practice occurs whenever pregnancy is a motivating factor for an adverse employment action. Thus, in order to prevail with a disparate treatment PDA claim, an employee must demonstrate that she was treated differently than other employees because of her pregnancy or pregnancy-related condition. The employee has the burden of proving the ultimate issue of discrimination, and it is not an insignificant burden. Sometimes, however, as in the Dimensions Healthcare case, the employee's burden can be eased significantly by direct evidence of intentional discrimination. In its complaint against Dimensions Healthcare, the EEOC alleges that an associate vice president told the plaintiff that the healthcare provider had considered her for the open manager position but decided to promote a less experienced male employee instead because she "had been on maternity leave for a while."

Even when there is no explicit acknowledgment of an intent to discriminate by management, an employee claiming pregnancy discrimination can use circumstantial evidence to prove her case.

Circumstantial evidence of discrimination includes ambiguous statements, suspicious timing, and instances in which similarly situated, non-pregnant employees received systematically better treatment. In 2012, for example, a female vice president of Deutsche Bank claimed she was "mommy-tracked" by the bank after she returned from maternity leave. The plaintiff claimed she was asked to take a "reduced role" by her boss when she came back to work. She said that bigger accounts were directed to a male colleague, her bonus was slashed and the bank tried to demote her to a "vague" marketing job.

The allegation that deciding to have children and take maternity leave can be a barrier to success in the workplace is not an isolated one.  A study out of Great Britain reports that 14 percent of the 340,000 women who take maternity leave in that country each year (approximately 50,000 women) experience some form of adverse consequences upon returning to work, such as being forced into lower-level positions or being constructively discharged.  Similarly, sociologists who have studied the American workplace argue that working mothers suffer a "motherhood penalty" in the form of systematic disadvantages in pay and benefits as compared with childless women.  Females who decide to take time away from their careers to have children may also be viewed as less committed and less dependable than non-mothers.  

Women claiming discrimination because of pregnancy can seek individual relief and also broader, more comprehensive, injunctive relief, as in the case of the EEOC's suit against Dimension Healthcare. The EEOC's complaint seeks a permanent injunction preventing the company from discriminating on the basis of sex and asks the court to order Dimensions to carry out policies and procedures that provide equal opportunities for women.

Bottom Line for Employers

Since the passage of the PDA, employers have been prohibited from making distinctions in employment policy on the basis of pregnancy unless such distinctions can be justified by certain judicially recognized defenses to discrimination claims under Title VII. The basic principle of the PDA is that women affected by pregnancy must be treated the same as other employees.  As noted in one of the leading cases, the PDA requires employers to "ignore an employee's pregnancy as far as is practically possible."

Obviously, as demonstrated by the EEOC's complaint against Dimensions Healthcare, "ignoring an employee's pregnancy" does not mean ignoring the woman who is pregnant, especially when it comes to decisions regarding promotions.  

Employees who claim pregnancy discrimination make very sympathetic plaintiffs. Federal and state enforcement agencies are very receptive to these types of claims and so are juries. Employers must train supervisors and managers on the proper way to respond to an employee's announcement that she is pregnant and will need maternity leave. All personnel decisions that impact the employee on maternity leave, whether evaluations, bonus determinations or promotion decisions, should be reviewed with human resources and/or the company's employment law attorney.