What evidence is required to prove pregnancy discrimination?



If you came back to work after pregnancy only to be told your job was eliminated; or you are not getting the same opportunities as before, then you might suspect pregnancy discrimination. But how can you find evidence to support your suspicion? This is actually a common challenge for employment law attorneys.

Because pregnancy discrimination has been illegal in California for decades, almost no employer is actually going to tell you that you were let go or treated differently because of your pregnancy. We know that the "smoking gun" piece of evidence often does not exist in discrimination cases. So, employment lawyers have to play detective, and methodically build a case by discovering various pieces of suspicious evidence. You can help by doing some investigating of your own.

For example, some employers believe they are protected from discrimination charges if they call your firing a "layoff" or a "reduction in force," which they will claim is purely for business reasons. However, the "layoff" may be suspicious if, for example, you are the only one let go in your work group—particularly if more junior or less qualified employees are kept on. So, if you are “laid off” try to gather information from coworkers to find out as much as you can about the scope of the layoff.

It would be especially suspicious if your company re-posted your position, or a similar one, shortly after you were "laid off," or if the company had other open positions you were qualified for but refused to consider you for any of them. If you can help show that your employer’s story about why they fired you appears false, it may suggest that they had an illegal reason, such as pregnancy discrimination.

If you get a strong sense that your boss, or someone else with authority, holds it against you that you are pregnant, or took pregnancy leave, it will help your case if there are witnesses. Despite the advances of the me-too movement, "he said/she said" evidence may not pass muster with some courts. "He said/they said" is always better. So, perhaps other women coworkers have been denied opportunities, or feel the company culture is not friendly to pregnant women. Because testifying against your current employer is awkward for anyone, the best witnesses are often people who have left the company. Be sure to discuss these issues with people you trust in your network.

However, sometimes employees do experience "soft" discrimination — meaning that there is no documentary evidence that your employer acted against you because of your pregnancy; no witnesses who will come forward and support that claim; and no clear evidence that your employer is lying. This may frankly make your case difficult. However, if you make a complaint of discrimination with your company, and they later act against you, then it may support a case for illegal retaliation. The strength of such a claim depends in part on the underlying complaint of discrimination, as well as whether the retaliation was severe such as termination. However, if you are a long-term employee, with an excellent record, and your employer suddenly terminates you – or starts writing you up frivolously and then terminates you shortly after you have filed a good-faith complaint of discrimination, then that may be strong evidence of retaliation and wrongful termination.

In conclusion, although there may not be a "smoking gun" for pregnancy or other employment discrimination, it is best to contact a skilled employment attorney who has the determination and experience to build a case.

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