Employee Rights and Employment Policy Journal

Looking Forward and Back: Using the Pregnancy Discrimination Act and Discriminatory Gender/Pregnancy Stereotyping to Challenge Discrimination Against New Mothers

By
Susan E. Huhta
Elizabeth S. Westfall
Joan C. Williams

Abstract

This article posits that the Pregnancy Discrimination Act (PDA) may and should provide a legal remedy to new mothers whose employers subject them to adverse employment actions based on their status as family caregivers, after they are no longer pregnant, if evidence exists that the employers' discriminatory animus arose during or before the mothers' pregnancy. First, it provides an overview of the law applicable to litigating a PDA claim. Second, it reviews three cases involving PDA claims where the discrimination culminated after the plaintiff had given birth. Third, it draws upon social psychology literature to make the causal link between gender and pregnancy discrimination on the one hand, and discrimination affecting new mothers. Finally, it offers specific guidance to practitioners on how to plead claims on behalf of new mothers under the PDA and conduct the discovery necessary to prove these claims.