The legal hurdles of pregnancy discrimination claims

Walmart, the nation’s largest private employer, is facing a potential class-action lawsuit in New York for allegations of pregnancy discrimination. Two former Walmart associates, Kaitlyn Hoover and Leigha Klopp, claim they were fired for missing work due to pregnancy-related medical issues.

In a statement to CBS News, Walmart said, “We do not tolerate discrimination and strive to create a supportive work environment for all of our associates, including those who are pregnant. We disagree with these claims and will respond with the court.” The company also said its policies comply with federal and state law. Other large companies facing legal action for alleged pregnancy discrimination include Merck, AT&T, Whole Foods and Novartis.

CBS News legal analyst Rikki Klieman told “CBS This Morning” pregnancy discrimination is very difficult to prove unless it is medically documented, through something like a letter from your doctor or a hospitalization.

“If you have a doctor’s letter or if you go into the hospital, you can show you have a real issue here. But what happens if you just get nauseous? What happens if you have to go and vomit? What happens if you can’t lift? So it’s difficult to prove because employers can use a pretext. They can say, well, she wasn’t so good at her job or she had the wrong attitude. There are a lot of reasons that employers can say that they fired you or demoted you that are not about your pregnancy,” Klieman said.

Both Hoover’s and Klopp’s cases were filed in New York state which could tip the scales in their favor. New York, Klieman said, has some of the best protections for pregnant women thanks to legislation aimed at furthering women’s equality back in 2015.

“They have really created the best possible situation for women. Because if you have four or more employees – that’s all you need are four – you have that an employer must, must accommodate your pregnancy and any related conditions unless it is undue hardship and that really is a strong burden that the employer would have to solve,” Klieman said.

Last year, more than 3,100 cases of pregnancy discrimination were filed with the Equal Employment Opportunity Commission.  According to Klieman there are two important pieces of legislation that protect pregnant workers at the federal level.

“The Pregnancy Discrimination Act as well as the Americans with Disabilities Act, they are there for women to be protected, but particularly the P.D.A. because the P.D.A. has really looked at it this way. If you have pregnancy and you are similarly situated in what you can do to someone else like a man who may not be able to lift something heavy or may have to take frequent bathroom breaks or may need a lighter job or may have to go to the doctor, under the Pregnancy Discrimination Act, you should be okay. American disabilities, pregnancy is not a disability, but the impairment from it can become a disability.”