Establishing Pregnancy Discrimination When Employer Hires The Employee & Then Fires The Employee After Learning She Was Pregnant When Hired

Standing alone, it is not unlawful for an employer to ask a job applicant whether she is pregnant when interviewing her for employment. However, if the job applicant is pregnant and not hired, evidence that the employer asked the job applicant whether she is pregnant can be used to show that pregnancy discrimination played an impermissible role in the hiring decision. When the employer does not ask the job applicant whether she is pregnant during the hiring process and hires the pregnant job applicant, the pregnant employee’s continued employment sometimes may be at risk when the employer learns that she was pregnant when hired. Such circumstances existed in a pregnancy discrimination case brought by the U.S. Equal Employment Opportunity Commission (EEOC), EEOC v. CFS Health Management, Inc., against CFS Health Management, Inc. (CFS) on behalf of April Raines (Raines) in the U.S. District Court, Northern District of Georgia.

In that case, the owner of CFS hired Raines after interviewing her for employment. About two weeks after she was hired as skin care specialist, Raines told the owner that she was pregnant. Two days later, CFS removed Raines from the work schedule. When Raines asked the owner why her hours were being reduced after notifying him of her pregnancy, the owner told her he felt deceived that she had not notified him of her pregnancy before she was hired. After Raines told the owner that she was capable of performing her duties, the owner told Raines that she could not work for CFS because she deceived him by not telling him that she was pregnant. The EEOC claimed that CFS terminated Raines’ employment because of her pregnancy in violation of the Pregnancy Discrimination Act. On November 30, 2015, the EEOC and CFS entered into a Consent Decree wherein CFS agreed to pay Raines $37,000 to resolve the lawsuit.

In the CFS case, the EEOC had three related pieces of evidence that could be used to establish that Raines was fired because of her pregnancy.

* First, although the CFS owner did not ask Raines whether she was pregnant while interviewing her for employment, the owner’s remark that she had deceived him by not telling him that she was pregnant reflects that CFS wanted to know whether she was pregnant before hiring her.
* Second, once CFS learned Raines was pregnant two weeks after hiring her, CFS immediately fired her. The close timing between the termination and CFS’s knowledge of Raines’ pregnancy constitutes compelling evidence of pregnancy discrimination.
* Third, although the CFS owner did not ask Raines whether she was pregnant while interviewing her for employment, the immediate termination of Raines after she disclosed her pregnancy reflects that CFS would not have hired Raines if it had known she was pregnant. In other words, because the owner’s remarks reflected that he wanted to know whether Raines was pregnant during the hiring process, it was as if the owner had asked Raines whether she was pregnant while interviewing her for employment.

Although not alleged by the EEOC as existing in the CFS case, other types of evidence can be used to prove pregnancy discrimination when an employer fires a pregnant employee after learning that she was pregnant when hired. Evidence that the employee’s pregnancy was a motivating factor for the termination includes:

* Treating the pregnant employee differently and less favorably from non-pregnant employees.
* Targeting the pregnant employee for adverse employment actions after learning that she is pregnant, such as reducing her hours, giving her an unfavorable work schedule, subjecting her to disciplinary action, giving her work performance improvement plans, or demoting her.
* Remarks reflecting negative stereotypes about pregnant employees’ reliability, job commitment, emotional state, physical ability to do the work, or work attendance.
* Remarks reflecting displeasure, anger, or annoyance about the employee’s pregnancy or pregnancy-related medical conditions.

We have extensive experience representing individuals who have been the victim of pregnancy discrimination. If you have been discriminated against on the basis of pregnancy, or have questions regarding your rights as a pregnant employee, please contact our office for a free consultation.