Pregnancy Discrimination vs. 'Performance Issues': How These Cases Actually Get Proved

When a pregnant employee is fired, demoted, or pushed out, the employer almost never says it's because of the pregnancy. Instead, they say it's "performance issues"—conveniently discovered right around the time the employee announced her pregnancy or started showing.

Proving pregnancy discrimination requires piercing through these pretextual justifications to reveal what's really happening.

The Legal Framework

Pregnancy discrimination is prohibited by:

• Title VII of the Civil Rights Act (as amended by the Pregnancy Discrimination Act)
• Oklahoma's Anti-Discrimination Act
• The Americans with Disabilities Act (for pregnancy-related conditions)
• The Pregnant Workers Fairness Act (effective 2023)

Under these laws, employers cannot treat pregnant employees differently than non-pregnant employees who are "similar in their ability or inability to work."

How Pregnancy Discrimination Cases Are Structured

Most pregnancy discrimination cases follow the burden-shifting framework from McDonnell Douglas:

Step 1: Prima Facie Case

The employee must show:

1. She was pregnant (or recently had been)
2. She was qualified for her position
3. She suffered an adverse employment action (termination, demotion, etc.)
4. Circumstances suggest discrimination (timing, replacement by non-pregnant employee, etc.)

Step 2: Legitimate Business Reason

The employer then offers a non-discriminatory reason for the action—usually "performance problems."

Step 3: Pretext

The employee must prove the employer's stated reason is pretextual—a cover story for discrimination.

This third step is where cases are won or lost.

Proving Pretext: The Red Flags

Certain patterns suggest an employer's "performance" justification is pretextual:

Timing of Performance Concerns

If performance problems suddenly appear right after a pregnancy announcement:

• Were there no performance issues before?
• Did the same conduct happen before without discipline?
• Did documentation suddenly start after the announcement?

A performance file that was empty for years but fills up after pregnancy is announced tells a story.

Shifting Justifications

When reasons for termination change over time—first it was "attendance," then "attitude," then "performance"—that inconsistency suggests none of the reasons is the real reason.

Different Treatment

If pregnant employees are held to higher standards than others:

• Are non-pregnant employees disciplined for the same conduct?
• Are men with similar performance issues retained?
• Is the same supervisor more forgiving of others?

Comparative evidence is powerful.

Comments and Statements

Direct evidence of discriminatory intent is rare but powerful:

• "Are you sure you can handle this job with a baby coming?"
• "We need someone we can count on to be here."
• "New mothers aren't really focused on work."
• Jokes or comments about pregnancy, motherhood, or work-life balance

Document everything. These statements are often made casually and without witnesses.

Pregnancy Stereotyping

Assumptions about what pregnant employees can or should do constitute discrimination:

• Removing opportunities "for your own good"
• Assuming she'll quit after the baby
• Deciding she can't travel, work late, or handle stress
• Limiting advancement because "you'll be leaving anyway"

The employer doesn't get to make these decisions for her.

Building the Paper Trail

Pregnancy discrimination cases often come down to documentation:

What Employees Should Document

• All performance reviews (before and after pregnancy announcement)
• Any sudden changes in treatment or assignments
• Comments about pregnancy, motherhood, or ability to work
• Different treatment compared to non-pregnant employees
• Timeline of events relative to pregnancy disclosure
• Accommodation requests and responses
• Emails, texts, and written communications

The Employer's Documentation

We also look at what's missing from employer files:

• Prior positive reviews that disappeared
• Lack of documentation for claimed performance issues
• Missing progressive discipline steps
• Absence of investigation into claimed problems

If the employer claims she was a problem employee, where's the documentation from before she got pregnant?

The Pregnancy Timing Pattern

The most common pregnancy discrimination pattern:

1. Employee announces pregnancy or starts showing
2. Previously positive treatment changes
3. New "concerns" about performance emerge
4. Documentation of problems begins
5. Employee is terminated, demoted, or forced out
6. Employer claims it was "performance all along"

When this timeline repeats across cases, it's not coincidence.

Defenses Employers Use

Common employer arguments:

"Her Performance Really Did Decline"

Sometimes true—and sometimes fabricated after the fact. We look at:

• Did metrics actually change?
• Were the same metrics applied to others?
• Was she given the same opportunities to succeed?

"We Didn't Know She Was Pregnant"

Hard to maintain when she's visibly showing or has disclosed to supervisors. We verify who knew what and when.

"We Needed Someone Reliable"

This is itself discriminatory if it's based on assumptions about pregnant employees. The law protects against stereotype-based decisions.

"She Was Going to Leave Anyway"

Irrelevant. Employers can't pre-emptively fire someone based on assumptions about her future choices.

The Pregnant Workers Fairness Act

Since June 2023, the PWFA requires employers to provide reasonable accommodations for pregnancy-related conditions—like they do for disabilities. This includes:

• Modified work schedules
• Time off for medical appointments
• Light duty assignments
• More frequent breaks
• Workplace modifications

Failure to accommodate pregnancy-related needs is now a separate violation.

What Recovery Looks Like

Successful pregnancy discrimination claims can include:

• Back pay for lost wages
• Front pay for future lost earnings
• Reinstatement to the former position
• Compensatory damages for emotional distress
• Punitive damages for egregious conduct
• Attorney fees and costs

We Handle Pregnancy Discrimination Cases

If you've been treated differently because of pregnancy—or terminated for "performance issues" that conveniently emerged after you announced your pregnancy—contact us for a free consultation.

We know how these cases are structured, what evidence matters, and how to prove what employers try to hide.