Thinking about getting pregnant or attempting to get pregnant? Concerned about your employer firing you before you actually get pregnant because you’re trying to get pregnant? Are you protected from discrimination prior to getting pregnant? Texas courts weighed in on this issue for the first time in 2021, and . . . congratulations, it’s good news!
In South Texas College v. Arriola, a Texas Court of Appeals held that an employee who was attempting to get pregnant was protected under the Texas Commission on Human Rights Act (TCHRA), the state version of Title VII of the Civil Rights Act, which protects individuals from discrimination, harassment, and retaliation based on race, religion, national origin, color, disability, age, and sex. 629 S.W.3d 502 (Tex. App.—Corpus Christi-Edinburg 2021, pet. denied).
STC attempted to argue that Ms. Arriola was not protected under Texas state law because women who are “only attempting to get pregnant” were not a protected class. Because the Court could find no Texas cases on the issue, it looked to federal cases brought under Title VII. Of the federal cases, it was clear “an overwhelming majority” had concluded that women who were attempting to get pregnant were nonetheless entitled to protection under the law. See, e.g., Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 844 (7th Cir. 2007); Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005); Walsh v. Nat’l Comput. Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003); Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996); Poucher v. Automatic Data Processing, Inc., No. CIV. A. 3:98-CV2669P, 2000 WL 193619, at *4 (N.D. Tex. Feb. 17, 2000). Although, a few courts have disagreed, the Texas court decided to follow the majority and give protections, as it should, to women who are thinking about getting pregnant or attempting to get pregnant.
In making its decision, the Texas Court of Appeals relied heavily on a federal case out of a district court in Illinois that stated:
The basic theory of the PDA may be simply stated: Only women can become pregnant; stereotypes based on pregnancy and related medical conditions have been a barrier to women’s economic advancement; and classifications based on pregnancy and related medical conditions are never gender-neutral. Discrimination against an employee because she intends to, is trying to, or simply has the potential to become pregnant is therefore illegal discrimination. It makes sense to conclude that the PDA was intended to cover a woman’s intention or potential to become pregnant, because all that conclusion means is that discrimination against persons who intend to or can potentially become pregnant is discrimination against women, which is the kind of truism the PDA wrote into law.
Pacourek v. Inland Steel Co. 858 F. Supp. 1393, 1401 (N.D. Ill. 1994).
The court in Pacourek did indeed do an excellent job of summarizing why the law should protect all women from pregnancy discrimination, even those who are not pregnant. However, unfortunately, we know from experience that employers don’t always abide by the law. If you have faced discrimination because you are potentially planning to get pregnant or trying to get pregnant, you should consult with an employment attorney right away.