Yesterday, I told you that a man couldn’t bring a pregnancy bias claim under Title VII of the Civil Rights Act of 1964. But, a bunch of you actual and aspiring employee-rights attorneys had ideas to prove me wrong.
Yesterday, I talked about how Title VII makes it unlawful for an employer “to discharge. . . or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” And the Pregnancy Discrimination Act (PDA) amended Title VII to clarify that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”
The transgender man.
More than one person commented that a transgender man (assigned female at birth) could still get pregnant and, therefore, potentially have a Title VII pregnancy discrimination claim.
The PDA only speaks to “women affected by pregnancy…” However, there could be a state law claim. Indeed, there’s just such a case pending in NJ right now, albeit under the New Jersey Law Against Discrimination.
The EEOC notes that “[s]ome courts and commentators have used the term ‘sex plus’ [discrimination] to describe cases in which the employer discriminates against a subclass of women or men, i.e., sex plus another characteristic, such as caregiving or marriage.”
Title VII does not cover familial or marital status alone. (Many states have laws that do. So, be careful!) However, Title VII does apply if an employer treats men with pregnant spouses worse than men without — as long and the company discriminated against the husband because of his gender.
The associational discrimination claim.
The Americans with Disabilities Act protects applicants and employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability.
So, a man may not have a Title VII pregnancy discrimination claim. But, if his pregnant wife also has a pregnancy-related disability (e.g., postpartum depression), and the employer discriminates against the husband because his wife has that disability (maybe the company thinks that the employee can’t achieve a proper work-life balance), that would violate the ADA.
FMLA interference claim.
A husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or if needed to care for her during her prenatal care or care for the spouse following the birth of a child if the spouse has a serious health condition.
Don’t believe me? The DOL says it right here. So, if the husband is an FMLA-eligible employee and the employer interferes, that’s an FMLA violation — even if the employer shows no animus towards the husband.
FMLA retaliation claim.
Tack on an FMLA retaliation claim if the employer does prevent the husband from taking leave because of FMLA animus.
Did I miss something? Call me out on Friday at Noon ET on Zoom.
That’s when my special guest Robin Shea and I will answer all of your hypothetical employment law questions in a way that neither creates attorney-client privilege nor actually involves us giving any legal advice. We’ll say, “It depends” a lot, which may be confusing to some of you who hear that from your company’s outside counsel too often anyway.
Got questions? Please email them to me.
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