Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000(e) et seq.
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
As amended by the first clause of the PDA, Title VII defines the term "because of sex" as including, but not limited to, "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). The second clause of the PDA further provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." Id.
What was the legislative purpose?
Congress intended the PDA to provide relief for working women and to end discrimination against pregnant workers. See Guerra , 479 U.S. at 286, 107 S.Ct. at 692. The PDA does not, however, "'protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or to complications of pregnancy, unless the absences of nonpregnant employees are overlooked.'" Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002) (quoting Dormeyer v. Comerica Bank-Ill. , 223 F.3d 579, 583 (7th Cir. 2000)); see also Wallace , 271 F.3d at 223 (noting that the PDA requires an employer to ignore an employee's pregnancy, but not her absence from work, unless the employer overlooks comparable absences of non-pregnant employees).
PDA was enacted to overrule Supreme Court decision
The PDA must be understood in the context in which it was enacted. See Guerra , 479 U.S. at 284, 107 S. Ct. at 691. The Supreme Court held in General Electric Co. v. Gilbert , 429 U.S. 125, 136-138, 97 S. Ct. 401, 408-09 (1976), that under Title VII, discrimination on the basis of pregnancy was not sex discrimination. In the wake of this decision, Congress passed the PDA, Pub. L. No. 95-555, 92 Stat. 2076 (1978). The PDA amended the definitional provision of Title VII “to specif[y] that sex discrimination includes discrimination on the basis of pregnancy.” Guerra , 479 U.S. at 277, 107 S. Ct. at 687. In so doing, Congress “unambiguously expressed its disapproval” with the Gilbert decision. Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669, 678, 103 S. Ct. 2622, 2628 (1983).
Only a limited remedy
Against this legislative backdrop, most courts have held that the PDA does not impose an affirmative obligation on employers to grant preferential treatment to pregnant women. See Guerra , 479 U.S. at 284-86, 107 S. Ct. at 691-92; In re Carnegie Ctr. Assocs. , 129 F.3d at 295 (“[T]he PDA does not require that employers treat pregnant employees better than other temporarily disabled employees.”)
How do court's analize pregnancy discrimination claims?
A claim brought under the PDA is analyzed like any other Title VII discrimination claim. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). Title VII discrimination can be established through either direct or circumstantial evidence. See Wallace , 271 F.3d at 219. The latter is analyzed under the familiar McDonnell- Douglas framework. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Prima facie case and burden-shifting
Under this framework, the plaintiff must first create a presumption of discrimination by making out a prima facie case of discrimination. See Wallace , 271 F.3d at 219.
In order to make out a prima facie case of discrimination under Title VII, a plaintiff must show: (1) she was a member of the protected class; (2) she was qualified for the position; (3) she was discharged; and (4) after she was discharged, she was replaced with a person who is not a member of the protected class. Bauer v. Albermarle Corp. , 169 F.3d 962, 966 (5th Cir. 1999).
The burden then shifts to the employer to produce a legitimate, nondiscriminatory reason for her termination. See id. This causes the presumption of discrimination to dissipate. See id. The plaintiff then bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally discriminated against her because of her protected status. See id
Plaintiff my raise presumption of discrimination with circumstantial evidence
In order to establish discrimination based on circumstantial evidence, the burden is first on the plaintiff to “isolate and identify a particular employment practice which is the cause of the disparity and provide evidence sufficient to raise an inference of causation.” Garcia v. Women’s Hosp. of Texas, 97 F.3d 810, 813 (5th Cir. 1996). After making out this prima facie case, the burden shifts to the employer to provide evidence that the practice is related to a legitimate, non-discriminatory purpose. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2002).
Employer will usually offer a nondiscriminatory reason such as:
- Employee or candidate not qualified or less qualified than others - Employee not able to perform job or specific tasks (e.g., lifting) - Poor performance, deterioration, error rate - Excessive absences, absenteeism, tardiness - Misconduct (dismissal "for cause") - Policy violations - Position elimination, reorganization - Reduction in force (RIF)
Plaintiff must prove that employer's explanation is false or a mere pretext
Once a defendant produces a non-discriminatory purpose or reason, the presumption of discrimination dissolves and the plaintiff bears the ultimate burden of persuading the fact-finder that the employer intentionally discriminated against her, and that the non-discriminatory justifications are mere pretext. Laxton v. Gap, Inc., 333 F.3d at 578.
Ultimate burden rests with the Plaintiff
Once the employer has articulated a legitimate, nondiscriminatory reason for the adverse employment action, the scheme of shifting burdens and presumptions simply drops out of the picture, and the trier of fact proceeds to decide the ultimate question: whether plaintiff has proved that the defendant intentionally discriminated against her because of her sex. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993).