What to Do if You're Worried About Pregnancy Discrimination at Work

Even though it's illegal to treat parents unfairly, it still happens—and can be hard to recognize, let alone prove.

by Jessica Migala
Oct 21 2019, 7:07pm

Photo by Hero Images via Getty Images

On October 8, Elizabeth Warren tweeted that she was fired from being a schoolteacher in 1971 because she was pregnant. "I had an experience millions of women will recognize," Warren wrote, and asked others to share their stories of pregnancy discrimination. People reported being disciplined for taking maternity leave and being fired after notifying their workplace they were pregnant—and described many of the harder-to-prove experiences that constitute pregnancy discrimination, like being denied advancement opportunities, being disproportionately disciplined, and facing other kinds of unfair treatment from superiors. Many of the responses underscored that it's hard to push back against discrimination when you're unsure how to show it's even happening to you.

Pregnancy discrimination has been illegal since the 1978 passage of the Pregnancy Discrimination Act. However, the law doesn’t completely protect you. “Pregnant workers in the United States still face workplace discrimination—in all industries, across race and ethnicity, and in every state,” wrote the National Partnership for Women and Families. Employers have found subtler means of discrimination, making it more difficult to document it—or even feel sure that your experience qualifies as discrimination. This is why, on Tuesday, the House Committee on Education and Labor will hold a hearing to explore the Pregnant Workers Fairness Act, which makes it clear that employers need to provide accommodations, suggests an interactive process between employer and employee for determining them, and protects workers against retaliation for requesting and/or receiving them.

In the meantime, identifying and addressing pregnancy discrimination depends on your situation. Being fired after an employer finds out you're pregnant "is most common in lower-wage jobs," like food service and retail, said Joan Williams, founding director of WorkLife Law at UC Hastings College of the Law. "The employer may not say, 'I’m firing you because you’re pregnant,' but the timing makes it obvious.” In lower-wage jobs, your employer may assume that you don’t have the power to take action, said Emily Martin, Vice President for Education and Workplace Justice at the National Women’s Law Center.

Discrimination can impact you as you look for jobs, as well, Martin said. You may be denied a job after an interview, but it's difficult to pin down whether it's because you're visibly pregnant. If you're asked in an interview (or at work) if you are or are planning on becoming pregnant in the future, that’s evidence of discrimination, Martin said. If you're not yet visibly pregnant, Martin advised not bringing up a pregnancy until there’s a job offer in hand. “It shouldn't be relevant in an employer’s determination of whether to hire you or not,” she said.

Even if you've been at your job for a long time or received stellar reviews, you're not immune. You might be passed over for job advancement, such as promotions, extra shifts, or higher-profile assignments, because you're pregnant, even if the reason isn't expressed outright. “An employer [may] assume that you’re not as committed to your job anymore,” said Martin. This can look like what Martin called "misguided paternalism," like when a supervisor tells you that you shouldn't take on a project because you have so much going on at home. It’s often presented as a favor—-or “in your own best interest”—and it can be harder to recognize as discrimination when it's packaged as a good deed. Still, Martin recommends that you push back and say explicitly that your pregnancy doesn't affect your ability to work, and that you will speak up if you need to discuss a change in your workload.

Biases about pregnancy may affect your performance reviews, too. “Many employers got the memo that they weren’t supposed to say really discriminatory stuff out loud,” said Martin, so they will use reviews to back up a decision to fire or otherwise cut the workload of a pregnant person. After a history of great evaluations, a boss might suddenly have a “long list of critiques and concerns. It’s obvious your work is being treated very different than it was before,” said Martin. When you're going in for one of these reviews, you should clearly stress your commitment to your job and continuing reliability, suggested the Pregnancy Accommodation Working Group. Having documentation of a marked change in your reviews, along with evidence of consistency in your workload and performance before your pregnancy, may help you escalate unfair feedback within the company or legally.

Pregnancy discrimination often centers on accomodations. In 2014, researchers estimated that 250,000 pregnant workers are denied on-the-job accommodations. The actual number is believed to be far higher, as many workers don’t request them in the first place, possibly due to fear of retaliation. You may even be disciplined for using accommodations you've gotten previous permission for—one example Williams gave was your being disciplined for taking time off to go to a prenatal appointment. This form of discrimination can happen regardless of the supervisor's gender, and even if they've faced similar circumstances at work: “Woman-on-woman discrimination is not uncommon," Williams said. "There’s the thought that she didn’t need all that accommodation when pregnant, so why do you?"

Employers may ask for a doctor’s note to show that you don't have work restrictions. This can be used against you if a doctor writes that you do, in fact, need accommodations, which employers may interpret as a reason to place you on unpaid leave or even let you go, said Martin. Pregnant@Work, run by the Center for WorkLife Law, provides a guide to asking doctors to write notes that won’t lead to problems with employers. (The most effective language varies by state.) The organization also includes resources about how best to ask for these accommodations and have an open discussion so that you and your employer can come to terms that satisfy you both.

Taking action doesn’t always mean going to court. Lawsuits require money, support, time off, and access to the right team, and not everyone has those privileges. “Whether you experience discrimination or harassment at work, it’s always hard to take any sort of legal action against your employer. Your livelihood is bound up in this decision,” said Martin.

If you're dealing with discrimination in any of these forms, you should document what’s happening by taking notes and saving emails, said Martin. If that discrimination is more on the microaggression level, keeping the receipts is even more important, as Martin explained: “The legal test would basically be whether these hostile acts were so pervasive that it unreasonably altered your working environment.” You can also use these in conversations with human resources or others at the company in positions to correct your situation.

Even if you don’t intend to take legal action, talking to an attorney is another good place to start. The WorkLife Law Legal Hotline offers experts who can help navigate murky-feeling situations that may constitute discrimination and suggest initial steps, like reviewing HR policies or writing a letter (which often pushes an employer to make concessions). Likewise, the NWLC’s Legal Network for Gender Equity connects people with local attorneys who do free legal consultations to help you understand your rights and options. If you're being discriminated against and still uncertain what's happening is biased, Williams offered this reminder as a gut-check: “You deserve to be judged on your performance, not your pregnancy. That’s the law.”

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Elizabeth Warren
Pregnancy Discrimination