Employment Discrimination Based on the Capacity to Become Pregnant?

We all know that Title VII of the Civil Rights Act of 1964 prohibits discrimination on account of pregnancy, but did you know that it also prohibits discrimination against a woman because of the capacity to become pregnant?

Potential pregnancy is a gender-related medical condition because only women can become pregnant.  Thus, a woman (whether an applicant or employee) can claim gender discrimination based on her capacity to become pregnant.  For example, if an employer failed to hire a female applicant because of the possibility of her becoming pregnant and requiring maternity leave at some unknown point in the future, Title VII would be violated.

In Yousuf v. Fairview Health Services, the Court of Appeals for the Eighth Circuit recognized that a pregnancy discrimination claim could be based on a woman’s capability to become pregnant.  The plaintiff, Khadara-Ayan Yousuf, claimed that her employer discriminated against her based on her pregnancy by terminating her employment after she did not return from a leave of absence.  Although Yousuf failed to present evidence showing that her employer actually knew of her pregnancy, the Court remanded the case to determine whether there was sufficient evidence that the employer discriminated against Yousuf simply based on her capacity to become pregnant.

Bottom line—even if an applicant or an employee is not pregnant, or an applicant or an employee has not “announced” her pregnancy yet, a supervisor’s negative comment about an employee becoming pregnant and needing maternity leave at some point in the future can land employers in hot water.