Timing Isn’t Everything in a Pregnancy Discrimination Claim

pregnant-worker-375x250The Fifth Circuit Court of Appeals recently joined the Second, Sixth, and Tenth Circuits in holding that where an employer shows that it had legitimate non-discriminatory reasons for firing a pregnant employee (e.g., non-performance), a mere fact that the employee was fired shortly after telling her employer that she was pregnant, doesn’t defeat employer’s stated reasons for termination.

In this case, the employee had a documented history of poor work performance and multiple write ups. Two months after she told her supervisor  she was pregnant, she was terminated for poor performance.  The employee argued that poor performance was just a pretext, but that she was really fired for being pregnant. The employer argued that pregnancy had nothing to do with it and that it had legitimate non-discriminatory for firing the employee.  The employee claimed that another management-employee told her during a social lunch that she was fired for being pregnant, but the court excluded this evidence as hearsay.  So, the only evidence of pregnancy discrimination that the employee could point to was the timing of her termination, which happened shortly after she told the employer she was pregnant.  The Fifth Circuit found that this fact alone was not enough to establish that the employer’s stated reasons for termination were just a pretext. Thus, theemployee must have other additional evidence to support its pregnancy discrimination claim.

TAKEAWAY: Where an employer shows it had legitimate non-discriminatory reasons for firing a pregnant employee, the fact that the employee was fired shortly after telling her employer she was pregnant, without more, won’t be sufficient to establish that employer’s stated reasons for termination were a pretext.

Leiza Dolghih represents both COMPANIES and EMPLOYEES in employment litigation and arbitration proceedings.  If you are facing an actual or a potential employment dispute, contact Ms. Dolghih for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.


Break Time for Nursing Mothers at Work – A Right or a Privilege?

gisele-bundchen_0Many businesses routinely face the question of what to do when a nursing employee asks that she be allowed to take a break to express milk at work and that she be allowed to do so in a private space? Does an employer have to grant her request? What if a business does not have a private place for a mother to use? How many breaks is she allowed to take? For how long? Does an employer have to pay for the break time? This blog post answers these and many other questions that arise from this simple but very common situation and explains why, even when not required to do so under the law, it might be wise for a business owner to permit its female workers to nurse at work. Continue reading “Break Time for Nursing Mothers at Work – A Right or a Privilege?”

A Major Victory for Pregnant Working Women in the US Supreme Court – Young v. UPS


This week, the United States Supreme Court issued a long-awaited ruling in Young v. UPS addressing how employers should treat pregnant employees under the Pregnancy Discrimination Act.

The Pregnancy Discrimination Act prohibits discrimination based on pregnancy and states that employers must treat pregnant women at work the same as “other persons” who are not pregnant but are similar in their ability or inability to work.  42 U.S.C §2000e(k).

Young, a UPS driver whose doctor told her not to lift over 20 pounds after she became pregnant, sued UPS because the company refused to put her on a modified light duty, while it provided such modified light-duty accommodations to employees who: (1) suffered on-the-job injuries; (2) required accommodation under the Americans with Disabilities Act (ADA); and (3) lost their Department of Transportation (DOT) certification. Under the UPS light-duty policy, an employee who could not lift heavy packages because he suffered an on-the-job injury, would be given a light-duty assignment, while Young, who was similar in her inability to lift heavy packages, would not be.  Young argued that this was discrimination based on pregnancy in that she was not treated the same as “other persons” similar in their inability to work.

Lower Courts’ Rulings:

The trial court and then the Fourth Circuit Court of Appeals rejected Young’s argument finding that she was comparing herself to categories of employees who were not similar to her and that the UPS’s policy was “pregnancy-blind” in that it treated all employees who suffered an off-the-job injury that limited their working ability the same.  Buying into the UPS’s argument, the Fourth Circuit explained that Young more closely resembled “an employee who injured his back while picking up his infant child or  . . . an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter,” neither of whom would have been eligible for accommodation under UPS’s policy; so, UPS was really not treating Young any different from other employees.

US Supreme Court Ruling

The Supreme Court did what it often does – it vacated the lower courts’ rulings, rejected both parties’ arguments, and came up with its own framework for determining whether an employer’s policy violates the Pregnancy Discrimination Act.

The Court rejected Young’s argument that an employer who provides accommodations to some workers, must provide such accommodations to all pregnant employees, noting that pregnant women were not entitled to a “most favored nation status.” However, the Court also rejected UPS’s argument that its policy treated all pregnant and non-pregnant employees similarly, noting that UPS’s interpretation of the law would “fail to carry out an important congressional objective” of treating pregnancy disability like disabilities stemming from disease and accidents.

Instead, the Court held that an employee who asserts a disparate treatment claim under the Pregnancy Discrimination Act, should have her claim analyzed under the McDonnell Douglas burden-shifting analysis.In a nutshell, the analysis works like this:

1.  A pregnant employee shows that the employer treats pregnant and non-pregnant employees differently in providing accommodations.

2.  The employer must then justify its different treatment by establishing a legitimate, non-discriminatory reason for the difference. While this burden traditionally set a comparatively low bar for employers to overcome, the Court cautioned that an employer’s reasoning that “it is more expensive or less convenient” to extend protection to pregnant women will not suffice.

3.  Even if the employer establishes such a reasons, the employee may then show it’s just a pretext.  While showing “pretext” traditionally has presented a comparatively high bar for plaintiffs to overcome, here the Court held that this burden may be met if the employee can point to evidence that the employer’s policies “impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, non-discriminatory’ reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.”

After applying the above-described analysis to Young’s claim, the Supreme Court concluded that her claim should not have been dismissed by the lower courts and sent it back to the district court to analyze whether Ms. Young could prove her claim of discrimination under the Pregnancy Discrimination Act.

WHAT THE RULING MEANS FOR EMPLOYERS: The Court’s ruling makes is substantially easier for plaintiffs to succeed in pregnancy discrimination and accommodation claims, and employer’s policies that tend to negatively impact pregnant employees – particularly where there is evidence that the requested accommodations have been provided to non-pregnant employees – are likely to be scrutinized and may well be deemed to be unlawful.

Employers should review their policies and practices with the Court’s ruling in mind, and make whatever changes necessary to ensure appropriate accommodation of, and no adverse effect with respect to, pregnant employees. Employers should take all requests for pregnancy-related accommodations seriously and evaluate them thoroughly and consistently, so as to ensure compliance and help prevent claims under the Pregnancy Discrimination Act.

Employers should pay special attention to employees’ pregnancy-related claims that might also qualify as disability accommodation requests.  In 2008, Congress amended the ADA and expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities.” Thus, most pregnancy-related disabilities would now likely be protected by the ADA and subject to its reasonable accommodation requirements.

WHAT THE RULING MEANS FOR EMPLOYEES: This case does not provide an affirmative right to pregnant workers to receive an accommodation. Thus, an employer who does not provide accommodations for any workers with a temporary disability are under no obligation to do so for pregnant workers.

However, according to the US Supreme Court’s ruling, if an employer provides accommodations to certain employees, but refuses to accommodate pregnant employees, a pregnant employee might have a claim under the Pregnancy Discrimination Act.  Similarly, if an employer treats pregnant employees differently from non-pregnant employees in the workplace, a pregnant worker might have a claim under the Pregnancy Discrimination Act.

Leiza represents both employers and employees in handling pregnancy accommodation and pregnancy discrimination claims.  If you need help in this area, contact Leiza for a consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.

Firing a Mother for Breast Feeding is, Indeed, Sexual Discrimination

Seems like a no-brainer, right? Well, a Texas District Court judge did not think so, so the Fifth Circuit Court of Appeals had to step in and set him straight in Equal Employment Opportunity Commission v. Houston Funding II, Ltd

Back in February 2012, a Texas federal judge held that a woman who claimed that she was fired for seeking to use a breast pump at work had no viable claim under Title VII‘s prohibition against discrimination based upon pregnancy, childbirth or a related medical condition. He dismissed her claims on summary judgment stating that “lactation is not pregnancy, childbirth, or a related medical condition,”  therefore, “firing someone because of lactation or breast-pumping is not discrimination.”  Needless to say, the opinion caused an uproar and resulted in the Equal Employment Opportunity Commission (“EEOC”) filing an appeal with the Fifth Circuit.

The EEOC explained that “lactation discrimination” violates Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended by the Pregnancy Discrimination Act (“PDA”) because lactation is a medical condition related to pregnancy.  Furthermore, the disparate treatment on the basis of breastfeeding, an inherently female function, constitutes “the essence of sex discrimination” under Title VII.  As stated in the EEOC’s appellate brief, “[l]actation is a female-specific function.  Thus, firing a female worker because she is lactating (i.e., producing and/or expressing breast milk) imposes a burden on that female worker that a comparable male employee simply could never suffer. That is the essence of sex discrimination.”

The Fifth Circuit agreed with the EEOC and explained that a dismissal of a female employee motivated by the fact that she is lactating “clearly imposes upon women a burden that male employees need not – indeed, could not – suffer.”  The Court held that “lactation is a related medication condition to pregnancy for purposes of the PDA,” and thus, cannot be used as a reason to fire or discriminate against an employee.

Additional Protections for Breastfeeding Mothers in Workplace 

The Patient Protection and Affordable Care Act (“Affordable Care Act”), which amended Section 7 of the Fair Labor Standards Act (“FLSA”), requires employers to provide reasonable break time for employees to express breast milk for nursing children for one year after a child’s birth.  The Act also requires employers “to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which can be used by employees to express breast milk.”  More details about this requirements can be found at the Department of Labor website here.

Texas does not have a similar statute.  However, Texas Health Code §165.002 (1995) authorizes a woman to breastfeed her child in any location, which would include a work place, and Texas Health Code §165.003 et seq. provide for the use of a “mother-friendly” designation for businesses who have policies supporting worksite breastfeeding. (HB 340)  The law provides for a worksite breastfeeding demonstration project and requires the Department of Health to develop recommendations supporting worksite breastfeeding (HB 359), which can be found at www.texasmotherfriendly.org.

Finally, the EEOC provides its Caregiver Best Practices Guidance (2011) for employers, in which it explains what employers can do above and beyond what is required by federal law in order to avoid discrimination claims and create a productive work environment.

BOTTOM LINE:  In the day and age when women make up 46.9% of the total labor force, and 51.5% of management, professional, and related positions, and when 55.8% of all mothers with children under the age of 1 are in the labor force, employers can no longer afford to ignore pregnancy-related issues in the workplace and need to familiarize themselves with the relevant law or face unpleasant consequences.  

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice.  His practice includes commercial, intellectual property and employment litigation.  You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.