What can you do if you feel your employer has treated you differently because of pregnancy? Title VII of the Civil Rights Act prohibits, among other things, an employer from discriminating against a person on the basis of sex. The Pregnancy Discrimination Act (“PDA”), which supplements Title VII, defines “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.” Thus, if you feel you’ve been treated differently because of pregnancy, you may have a cause of action under Title VII and the PDA.

To state a cause of action under Title VII and the PDA, you must be able to show that (1) you will be, are, or have been pregnant; (2) you performed your job satisfactorily; (3) that you suffered from adverse employment action; and (4) the adverse employment action took place because of your pregnancy. To meet the third element, you must show that you suffered not just any adverse action, but a materially adverse action. Courts generally consider “material” such actions as hiring, firing, demotion, lack of promotion, and reassignment with significantly different responsibilities. For example, in St. Vincent’s Hospital, (S.D.N.Y 2001), the plaintiff alleged that she returned from her pregnancy leave to different work responsibilities. The federal court hearing the case found the plaintiff’s allegation sufficient to take to the jury. The Court stated:

The crux of Plaintiff’s discrimination claim is that she left the Hospital in a supervisory position and returned as a receptionist. Defendant [Hospital’s] argument that Plaintiff returned to the same title, salary, and benefits is unavailing since adverse employment actions may exist where title, salary, and benefits remain the same. The job Plaintiff left appears to this Court to be quite different from the job to which the Plaintiff returned.

Once you have stated a cause of action under Title VII and the PDA, then the employer has the opportunity to articulate some legitimate, non-pregnancy related reason for the adverse action. Usually, the employer will argue that the action was related to restructuring or downsizing. In St. Vincent’s Hospital, for example, the Hospital argued that the change in the plaintiff’s responsibilities was due to the Hospital’s expansion. In other words, the plaintiff’s responsibilities simply had been reassigned to a newly hired employee. But the Plaintiff was able to convince the court that the Hospital’s expansion was merely a pretext for treating her differently because of her pregnancy.

If pregnancy discrimination is ultimately proven the damages typically awarded can be substantial. In Matter of N.Y.C. Transit Authority, (2d Dep’t 1992), a N.Y. appellate court suggested that awards of $50,000 to $250,000 were not unreasonable. With the economy still malingering and layoffs still imminent, employees that will be, are, or have been pregnant should be vigilant about their rights.