Pregnancy Discrimination in the Workplace

If you have ever been pregnant, you know that those two pink lines bring forth a whirlwind of emotions. Childcare options, nursery color schemes, and doctor’s appointments crowd your mind. With all the stress that comes with pregnancy, the last thing you need is your employer piling on additional anxieties. Unfortunately, even in the 21st century, thousands of women still face pregnancy discrimination in the workplace. This article delves into the various forms that pregnancy discrimination can take and the legal avenues available to hold your employer accountable if you are facing it.

Table of Contents

1. What Exactly is Pregnancy Discrimination?
2. Where Do I File a Claim?
3. Filing a Pregnancy Discrimination Lawsuit
4. A Deeper Look at Pregnancy Discrimination Laws
5. Proving Your Workplace Pregnancy Discrimination Claim
6. Pregnancy and Health Insurance
7. Legal Remedies for Pregnancy Discrimination

We Can Help

Despite the increasing trend of women working during their pregnancies, pregnancy discrimination still prevails in today’s workplace. Worse yet, research demonstrates that fewer than 1 percent of pregnancy discrimination incidents lead to formal complaints. Avoid becoming part of that statistic with the help of the R&H Employment Law Team. Call 303-688-0944 today to begin your case assessment, o lláme al 720-359-2442 para hablar con alguien en español.

What Exactly is Pregnancy Discrimination?

According to the U.S. Equal Employment Opportunity Commission, pregnancy discrimination involves treating an employee or job applicant unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

Pregnancy discrimination can be overt, such as an employer firing or refusing to hire you because you are pregnant. But pregnancy discrimination can also take the form of an employer not providing a place to pump breast milk or a supervisor commenting about how your pregnancy is impacting your work.

Where Do I File a Complaint?

If your employer has discriminated against you because of your pregnancy, childbirth, or other related condition, you can file a claim either with the Colorado Civil Rights Division (CCRD) or the Equal Employment Opportunity Commission, the federal administrative agency commonly called the EEOC.

These two agencies have a work-sharing agreement. That simply means they cooperate with each other to process claims. So, it’s unnecessary to file a claim with both agencies as long as you indicate to one of the agencies that you want it to cross-file the claim with the other agency.

Now, it’s important to know that if you want to file a pregnancy discrimination claim with the EEOC, your employer must have 15 or more employees.

Colorado’s anti-discrimination law covers employers of any size.

Complaint Filing Deadlines

Federal Deadline

To preserve your pregnancy discrimination claim under federal law, you must file with the EEOC, or cross-file with the state agency, within 180 days of the date you believe you were discriminated against.

If you are a federal employee, you have only 45 days to contact an EEOC counselor.

State Deadline

To preserve your pregnancy discrimination claim under state law, you must file with the CCRD, or cross-file with the EEOC, within 300 days of the date you believe you were discriminated against.

What Happens After I File a Pregnancy Discrimination Claim?

When your claim is filed, the EEOC will give you a copy of it along with what’s called your charge number. This is your claim’s identifying number. Within 10 days, the EEOC will also send a notice and a copy of the claim to the employer.

At this point, the EEOC may decide to do one of the following:

• Ask you and the employer to take part in mediation.
• Request the employer to provide a written answer to your claim and answer questions about it. Your charge number will then be given to an investigator.
• Dismiss your claim if the EEOC does not have jurisdiction or if it was not filed in time.

If the EEOC decides to investigate your claim, they may interview witnesses and gather documents. Once the investigation is complete, you and your employer will be notified of the results.

If the EEOC determines that discrimination did not occur, you will receive a notice of your right to sue. This notice gives you permission to file a lawsuit in a court of law.

If the EEOC determines that discrimination occurred, they will try to reach a voluntary settlement with your employer.

Filing a Pregnancy Discrimination Lawsuit

If your case is not resolved by an administrative agency, you will need to pursue your claim in court.

Can I Just Go Straight to Suing My Employer?

No. You cannot file a federal workplace pregnancy discrimination case in court without first going to the EEOC and having the agency dismiss your claim. This process is called exhausting your administrative remedies.

Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the Colorado Civil Rights Division.

Because the Colorado Anti-Discrimination Act places limits on how much you can receive in damages, many Colorado attorneys choose to file employment discrimination cases in federal court using federal law.

Before you can file a claim in federal court, the EEOC must first issue a document known as dismissal and notice of rights or notice of right to sue. Either of these documents gives you permission to move forward with your lawsuit.

A Deeper Look at Pregnancy Discrimination Laws

Pregnant workers in Colorado are protected from discrimination or adverse employment actions by the federal Pregnancy Discrimination Act and the Colorado Anti-Discrimination Act.

Pregnancy Discrimination Act

Enacted in 1978, the Pregnancy Discrimination Act (PDA) makes it illegal for any U.S. employer with 15 or more workers to treat an employee unfairly because they are pregnant, trying to get pregnant, or have experienced a pregnancy loss.

You can experience pregnancy discrimination in any aspect of employment, including:

• hiring
• firing
• pay
• job assignments
• promotions
• layoff
• training
• fringe benefits (such as leave and health insurance); and
• any other term or condition of employment

95 Public Law 555, 92 Stat. 2076

In other words, an employer cannot legally fire you simply because you are pregnant. Similarly, a prospective employer cannot refuse to hire you because you are pregnant.

Colorado Anti-Discrimination Act

In June 2016, then-Colorado Gov. John Hickenlooper signed House Bill 16-1438. The bill, known as the Pregnant Workers Fairness Act, amended the Colorado Anti-Discrimination Act (CADA) to include protections from workplace pregnancy discrimination.

This law aimed to “combat pregnancy discrimination, promote public health, and ensure full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” 2016 CO H.B. 1438

Pregnancy Discrimination and Temporary Disability

If you are temporarily unable to perform your job due to a medical condition related to pregnancy or childbirth, your employer must treat you the same way it would treat any other temporarily disabled employee.

Additionally, medical conditions resulting from pregnancy (such as gestational diabetes or preeclampsia) may fall under the Americans with Disabilities Act (ADA).  Your employer may have to provide a reasonable accommodation for a disability related to pregnancy. The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability, according to the EEOC.

What Are Reasonable Accommodations?

“Reasonable accommodations” may include, but are not limited to:

• more frequent or longer break periods
• more frequent restroom, food, and water breaks
• modified equipment or seating
• limitations on lifting
• temporary transfer to a less strenuous or hazardous position if available, with a return to the current position after pregnancy
• job restructuring
• light duty, if available
• assistance with manual labor

Colo. Revised Statutes § 24-34-402.3

It’s important to note that your employer is not automatically required to provide reasonable accommodations for your pregnancy. You have to file a request.

Modified Work Schedule

Your employer also may modify your work schedule if doing so does not require them to do any of the following:

1. hire new employees that they would not otherwise have hired
2. discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job
3. create a new position for you, including a light-duty position — unless a light-duty position would be provided for another equivalent employee; or
4. provide you paid leave beyond that which is provided to similarly situated employees.

C.R.S. § 24-34-402.3

Exceptions: Undue Hardship

Your employer may deny a reasonable accommodation only if they can prove the accommodation would impose an undue hardship on their business. Undue hardship means that by providing the accommodation your employer would experience significant difficulties or expenses.

When determining undue hardship, courts consider the following factors:

1. the nature and cost of the accommodation
2. your employer’s overall financial resources
3. the number of employees and the number, type, and location of the available facilities; and
4. the accommodation’s effect on expenses and resources or its effect upon the operations of the employer.

C.R.S. § 24-34-402.3

Proving Your Workplace Pregnancy Discrimination Claim

Like other forms of workplace discrimination, a successful pregnancy discrimination claim requires proving:

1. you are a member of a protected class
2. you suffered an adverse employment action; and
3. you were treated differently from similarly situated employees.

Martin v. Canon Bus. Sols., Inc., Civil Action No. 11-cv-02565-WJM-KMT, 2013 U.S. Dist. LEXIS 129008, at *1 (D. Colo. Sep. 10, 2013)

Adverse Employment Action

An adverse action is a decision made by your employer that negatively impacts you as an employee. Tenth Circuit courts have held that an adverse employment action must constitute a “significant change in employment status,” such as a:

• hiring
• firing
• failure to promote
• reassignment with significantly different responsibilities
• a decision causing a significant change in benefits

Martin v. Canon Bus. Sols., Inc. (D. Colo. Sep. 10, 2013)

How One Colorado Employee Proved Pregnancy Discrimination

The plaintiff in the above-cited case, Signe Martin, spent 14 years as a sales representative for Canon Business Solutions’ Colorado office. During her tenure, she was frequently recognized as one of the company’s top performers nationally.

In April 2009, Martin informed her supervisor she was pregnant. Her work situation began deteriorating from there until she eventually resigned two years later, in February 2011.

Martin Sues Employer

In her lawsuit filed in a Colorado district court, Martin provided evidence of several adverse employment actions taken by her employer, including the loss of commission-providing clients, a hostile work environment, and constructive discharge. Constructive discharge happens when an employee resigns from a job due to a hostile work environment.

The court agreed that taking away Martin’s clients qualified as an adverse employment action. The court also did not dispute that Martin, as a woman who had recently given birth, was a member of a protected class.

Further, the court found that Martin:

… was disciplined earlier and more often than some of the males who were similarly failing to meet their sales quotas. [Martin] was stripped of her religious, education, and non-profit accounts while her male co-workers were permitted to retain theirs. [Martin] has also shown that the removal of at least one account was directly related to her pregnancy. Martin v. Canon Bus. Sols., Inc., Civil Action (D. Colo. Sep. 10, 2013)

Therefore, the court concluded that Martin had met her burden of proving pregnancy discrimination.

Pregnancy and Health Insurance

Colorado courts have ruled that it is discriminatory for employers to offer health insurance plans that do not cover medical costs associated with routine pregnancy and childbirth. Let’s take a look at a local case.

Background: A ‘Normal’ Pregnancy

Amy Budde worked as a secretary for a Colorado law firm in the early ‘80s. While her employer-sponsored health insurance policy provided benefits for complications stemming from pregnancy, it did not extend to reimbursement of medical expenses resulting from a normal pregnancy.

Budde learned she was pregnant in early 1982 and subsequently informed her employer. About a month later, her employment was terminated. Both her pregnancy and childbirth were normal.

Insurance Denies Reimbursement Claim

Budde filed a claim with the insurance company for reimbursement of more than $1,700 in medical expenses related to her pregnancy and childbirth. However, the insurance company denied her claim on the basis that the costs of her normal pregnancy and childbirth were not covered by her employer’s policy.

Subsequently, Budde filed a workplace discrimination complaint with the Colorado Civil Rights Commission. She alleged her employer had discriminated against her by failing to provide a health insurance policy affording benefits for normal pregnancy. Budde further claimed that the insurance company had “aided and abetted” this discrimination by issuing the policy in the first place.

Commission Rules in Employee’s Favor

The Colorado Civil Rights Commission found that the insurance policy provided to Budde was indeed discriminatory. It ordered Budde’s employer and the insurance agency to pay her medical expenses. Budde’s employer was further ordered to adopt a benefits plan that provided coverage for normal pregnancy.

Appeals Court Reverses; Supreme Court Weighs In

Both Budde’s employer and the insurance agency appealed the commission’s decision. The Colorado Court of Appeals reversed the commission’s order, finding that Colorado law did not require employers to provide benefits for “normal” pregnancy expenses.

The case made its way to the Colorado Supreme Court, which reversed the lower court’s decision:

Because pregnancy is a condition unique to women, an employer offers fewer benefits to female employees on the basis of sex when it fails to provide them insurance coverage for pregnancy while providing male employees comprehensive coverage for all conditions, including those conditions unique to men. This disparity in the provision of comprehensive insurance benefits as a part of employment compensation constitutes discriminatory conduct on the basis of sex, and is essentially no different in effect than if the employer had provided female employees a lower wage on the basis of sex. Colo. Civil Rights Com. v. Travelers Ins. Co., 759 P.2d 1358, 1359 (Colo. 1988)

The Supreme Court ordered the appeals court to reinstate the commission’s original decision.

Legal Remedies for Pregnancy Discrimination

Whenever courts find discrimination, the goal is to put the victim in the same position (or nearly the same) that he or she would have been if the discrimination had never happened.

The types of relief will depend upon the discriminatory action and the effect it had on the victim. For example, if someone is not selected for a job or a promotion because of discrimination, the remedy may include placement in the job and/or back pay and benefits the person would have received.

The employer also will be required to stop any discriminatory practices and take steps to prevent such discrimination in the future.

If you are a victim of pregnancy discrimination, you also may be able to recover attorney’s fees, expert witness fees, and court costs.

Compensatory and Punitive Damages

Courts may award compensatory and punitive damages in cases involving intentional pregnancy discrimination.

Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination, such as costs associated with a job search or medical expenses. These damages also compensate victims for any emotional harm they suffered, such as mental anguish, inconvenience, or loss of enjoyment of life.

Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.

Limits on Compensatory and Punitive Damages

Federal employment law limits the amount of compensatory and punitive damages you can recover in a pregnancy discrimination case. These limits vary depending on the size of the employer:

• For employers with 15-100 employees, the limit is $50,000.
• For employers with 101-200 employees, the limit is $100,000.
• For employers with 201-500 employees, the limit is $200,000.
• For employers with more than 500 employees, the limit is $300,000.

Talk to an Employment Law Attorney Today

Official policy and personal biases have historically made life difficult for pregnant women in the workplace. Even with the legal protections in place today, some employers unfortunately still discriminate. If this has been your experience, the R&H employment lawyers can help you file a workplace discrimination claim and even represent you in district court if necessary. Call 303-688-0944 today to begin your case assessment, o lláme al 720-359-2442 para hablar con alguien en español.