A Pregnancy Discrimination Pause - Part 2

| Jason M. Knott

On Monday, we talked about how plaintiffs can prove pregnancy discrimination by direct evidence – the proverbial “smoking gun.”  Now, it’s time to tackle how a plaintiff can prove pregnancy discrimination under the McDonnell-Douglas test, through making a prima facie case of discrimination and then rebutting the employer’s assertion that it acted for legitimate, nonpretextual reasons.  Once again, the star of our hypothetical scenario is Marissa Mayer, the newsworthy new Yahoo! CEO.

Imagine with me that Mayer reconsidered her earlier statements to Fortune and decided not to work through her maternity leave – at least not on Yahoo!-related matters.  Then pretend that during the next year’s compensation committee meeting, the Yahoo! board awarded her a bonus that was smaller than expected and smaller than her predecessor’s, and she brought a lawsuit as a result (after filing any required charges with the EEOC).

Using the McDonnell-Douglas test, a court would first examine whether she could put forth a prima facie case of discrimination.  To make such a case, Mayer would have to produce evidence that she had given birth, that she had satisfactorily performed her duties, and that she was treated unfairly in comparison with others who performed similar work (in our hypothetical, her predecessor, and perhaps other members of the management team who might have received larger bonuses). 

Yahoo! might defend against a prima facie case by arguing that when other employees took leaves of absence for personal or medical reasons, it paid them smaller bonuses.  (Doing bad things to pregnant women or those who have given birth is not prohibited by the Pregnancy Discrimination Act, so long as an employer treats other people just as badly.  See Troupe v. May Department Stores.)  If Yahoo! came forth with such evidence, Mayer then would need to rebut it or risk losing her claim at the prima facie stage.

Assuming that Mayer was able to show a prima facie case, Yahoo! would then have the burden to put forth a legitimate, non-discriminatory reason for its actions – such as that our hypothetical Mayer didn’t perform as expected, or that she violated company policy.  Mayer would then have to produce evidence showing that these legitimate reasons were pretextual – in other words, evidence that would cause the jury to disbelieve that the performance issues or violations of company policy were the real reason behind the cut to her bonus.  This might include evidence that the performance claims were fictional, or evidence that any alleged policy violations were trivial when compared to the cut to the bonus.

Of course, we don’t expect any of these events to actually occur at Yahoo!  But if they did, it would make for an interesting look into the workings of the McDonnell-Douglas test and the Pregnancy Discrimination Act.