Benefits and Compensation, Diversity & Inclusion, HR Management & Compliance

‘You Can Be Just a Little Bit Pregnant,’ Says Texas Court

Yes, our parents were wrong, at least as far as the law is concerned—turns out you can be just a little bit pregnant. The Texas Court of Appeals in Corpus Christi said so in an opinion issued on February 11. To solve and understand the apparent riddle, read on.

FMLA compliance

Office talk triggers termination

Cynthia V. Arriola began working for South Texas College (STC) as an accounting group manager in March 2009. In July 2017, she married. The happy nuptials were followed by talk with coworkers and supervisors that she was attempting to become pregnant.

According to Arriola, her aspirations to become a mom fell flat with her managers and led to harassment and discipline. After she complained to a supervisor about the treatment, the end came quickly with her termination following in October 2017. (Because of the case’s procedural posture, the opinion doesn’t discuss STC’s version of events.)

Arriola sued alleging she was fired in violation of the prohibition against pregnancy discrimination in the Texas Commission on Human Rights Act (TCHRA).

Can you be just a little bit pregnant?

The appeals court agreed with the trial court and emphatically said yes you can be a little bit pregnant. But, the law prohibits discrimination because of pregnancy, and Arriola wasn’t pregnant when she was let go. For STC, 1+1=2. Therefore, no claim, right?

The appeals court disagreed with the college’s math. It reasoned that only women can become pregnant and then cited a similar case:

Discrimination against an employee because she intends to, is trying to, or simply has the potential to become pregnant is therefore illegal discrimination.

Makes sense, doesn’t it? After all, to hold otherwise would mean an employer could engage in a preemptive termination, with the case victory going to whoever wins the race on conception vs termination. Arriola therefore gets to take her case to a jury. South Texas College v. Arriola (Tex. App. Corpus Christi-Edinburg, February 11, 2021).

Bottom line

Let’s note a few things. Employers sometimes feel they’re being inconvenienced because of an employee’s private life. But the law protects certain activities, e.g., becoming pregnant, taking Family and Medical Leave Act (FMLA) leave, or using accrued vacation time to go on a trip. Before reacting, think about when your time comes to use a benefit or engage in a lawfully protected activity.

And speaking of legally protected activities: The federal Pregnancy Discrimination Act (PDA) protects all medical procedures related to pregnancy. And all means all. So, if an employee is considering getting an abortion or has one and an adverse employment action is taken as a result, then the law is violated. In vitro appointments? Protected. Recovering from childbirth? Protected.

Finally, a word to the wise: The no-preemptive-action concept can apply in many contexts. Say a new employee tells an employer she intends to have surgery and use FMLA leave. By the date of the surgery, she will have qualified for the leave. The employer will violate the Act if it fires her before she can satisfy the time-at-work rules.

Michael P. Maslanka is an assistant professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@unntdallas.edu.