How to Handle a Complaint of Pregnancy Discrimination

Author: Lisa Pierson Weinberger, Mom, Esq.

Pregnant women are protected from workplace discrimination by both federal and state laws. As a result, an employer has specific obligations with which it must comply when it becomes aware of a pregnancy discrimination complaint. The steps below explain how an employer can comply with its legal obligations if a pregnant employee claims discrimination based on her pregnancy.

Step 1: Determine Whether a Complaint Has Been Made

It is important to remember that what constitutes a complaint is broadly defined. For this reason, the employer's obligation to respond to a complaint of pregnancy discrimination may be triggered by a written or oral communication to a manager, supervisor, HR or the employer. For example, even a verbal complaint to a low-level manager is sufficient to put an employer on notice that an employee is claiming pregnancy discrimination. An employer should err on the side of investigating complaints of pregnancy discrimination regardless of how the employer becomes aware of the issue.

Step 2: Acknowledge That the Complaint Has Been Received

Employees are often hesitant to report instances of discrimination. When they do so, it is very important that employers respond to the claims that have been made in a sensitive and proactive manner. If a complaint has been submitted in writing, an employer representative should confirm with the pregnant employee that the complaint has been received. After receiving a written or verbal complaint, the employer should let the employee know the following information:

  • The employee should be told that a prompt and thorough investigation will be conducted to look into the allegations the complainant has raised. It is advisable to provide the employee with a brief explanation about how the investigation will be conducted.
  • The employee should be provided with a copy of any relevant policies regarding pregnancy discrimination.
  • The employee should be informed that the complaint will remain confidential to the extent possible. However, the employer should not provide assurances of complete confidentiality. While it is extremely important to keep an investigation contained, it is also necessary to discuss the matter with those who need to know or who can provide useful information. A conflict between an employee's desire for confidentiality and the employer's duty to investigate may arise if an employee informs a supervisor about alleged pregnancy discrimination, but asks him or her to keep the matter confidential and take no action. In such circumstances, inaction by a supervisor could lead to employer liability and is not an option once an employer has become aware of potential discrimination in the workplace.

Step 3: Document the Complaint

When an employee complains of pregnancy discrimination, the employer should immediately begin to take a detailed, accurate account of all relevant information. Any written notes of conversations should be purely factual and should not include any conclusive statements or opinions. For example, it would be appropriate to note that: "The employee alleges that her supervisor is treating her differently since she announced her pregnancy." However, it would be inappropriate to note that: "One of the company's supervisors is discriminating against a pregnant employee." No conclusions should be made until an investigation has been completed.

The employer should make a copy of its discrimination policy as it read at the time of the alleged discrimination and complaint and should file the policy, as well as any acknowledgment forms signed by any relevant parties, in a specific investigation file. The employer should note in the file when the complaint was made and who first received the complaint. The employer should also gather together any additional documents or evidence that the employee has provided and any other relevant information and compile it in an investigation file to be provided to the investigator.

Step 4: Choose an Investigator

Before the employer can begin an investigation into the claims of pregnancy discrimination, the employer must select an appropriate investigator. In some cases, it may be more appropriate to hire an outside investigator (e.g., someone who conducts investigations professionally and is not employed by the employer). Often, lawyers are retained to conduct investigations; however, the employer should not hire a lawyer to investigate the claim if the employer wants that very same lawyer (or that lawyer's law firm) to defend the employer if the employee ever sues for pregnancy discrimination in the future.

If is the employer determines that it will hand the investigation internally, the investigation should be conducted by a management level employee who is trained on how to properly run an investigation. In addition, the investigator should make a good witness and be an individual who neither the complainant nor the alleged wrongdoer reports to, thus eliminating any potential bias or conflict of interest.

Step 5: Conduct the Investigation

The investigator should begin by reviewing all relevant documents, such as the personnel files of the alleged wrongdoer and the complainant, and copies of prior investigations with regard to these individuals, if any.

The employee making the claim of discrimination should be interviewed first. Appropriate questions to ask the complainant are:

  • Who committed the alleged discrimination?
  • What exactly occurred or was said?
  • When did it occur and is it still ongoing?
  • Where did it occur?
  • How often did it occur?
  • How did it affect you?
  • How did you react?
  • What response did you make when the incident(s) occurred or afterwards?
  • How did the discrimination affect you?
  • Has your job been affected in any way?
  • Are there any persons who have relevant information?
  • Was anyone present when the alleged discrimination occurred?
  • Did you tell anyone about it?
  • Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who discriminated against you discriminate against anyone else?
  • Do you know whether anyone complained about discrimination by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

Once the complainant has been interviewed, the investigator should interview the alleged wrongdoer. Appropriate questions to ask the individual alleged to have engaged in discriminatory conduct are:

  • What is your response to the allegations?
  • If you claim that the allegations lack merit, does the complainant have any reason to lie?
  • Are there any other individuals who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

If the complainant and the alleged wrongdoer agree on what transpired, the investigation can be concluded. However, if necessary, third party witnesses should be interviewed next. Appropriate questions to ask third parties are:

  • What did you see or hear?
  • When did this occur?
  • Describe the alleged wrongdoer's behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you?
  • When did she tell you this?
  • Do you know of any other relevant information?
  • Are there other individuals who have relevant information?

The investigator should assure all individuals who are interviewed throughout the investigatory process that the employer has zero tolerance policy for illegal discrimination, that it takes complaints seriously, and that retaliation will not be tolerated. The investigator should further explain that he or she represents the employer, not the pregnant employee or the alleged wrongdoer, and is seeking to record the facts as to what allegedly occurred. The complainant and the alleged wrongdoer should be told that both sides will be informed of the results of the investigation and that if inappropriate behavior is found, corrective measures will be taken.

Step 6: Reach Conclusions and Write Report

Once all documents have been reviewed and all necessary interviews have been conducted, the investigator should review all of the information received and prepare a detailed investigative report summarizing the findings of the investigation.

The investigator should not decide whether discrimination took place. Instead, the investigator should reach factual conclusions about what transpired. The credibility of both the complainant and the alleged wrongdoer should be assessed. A conclusion should be reached about whether the conduct that took place was inappropriate in the workplace.

Step 7: Take Appropriate Action

If the investigation confirms the allegations made by the pregnant employee, the employer should determine what corrective measures are available and should impose appropriate discipline. An appropriate disciplinary response would be one that effectively ends the discriminatory conduct and offers an equitable response based upon the severity of the conduct and past behavior. The employer should be sure to document any disciplinary action.

If the investigation does not confirm the allegations made by the pregnant employee, the employer should still consider proactive measures to reduce the likelihood that similar claims will arise in the future. For example, the employer should consider changing the reporting structure if the complaining employee reports directly to the alleged wrongdoer, if possible.

Step 8: Follow Up With Complaining Employee

At the end of the investigation, the employer should meet with the complainant to assure her that the allegations have been thoroughly investigated, a conclusion has been reached and, if necessary, action has been taken. The employer should assure the employee that it appreciates that the employee utilized the complaint procedure and made the employer aware of her concerns and encourage the employee to report any future incidents of discrimination or harassment.

Additional Resources

Employee Management > EEO - Harassment

Employee Management > EEO - Retaliation

Employee Management > FMLA

Supervisor Briefing: Discrimination

Harassment - Supervisor Briefing

How to Prevent Pregnancy Discrimination

How to Handle Sex Discrimination in the Workplace

How to Prevent Pregnancy Discrimination

EEO Policies and Procedures

Non-Harassment Policy

Non-Discrimination Policy