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Attorney Blog, Human Resources, Payroll, payroll law

Non-binary Man Sues Employer for Pregnancy Discrimination

Attorney Harrison Oldham

In what is perhaps a first of its kind situation, an Amazon warehouse worker, identifying as male, filed an employment suit against the giant company after allegedly suffering discrimination when he announced to his boss that he is pregnant.

The plaintiff, whose suit was removed to the U.S. District Court for the District of New Jersey in Trenton on behalf of Amazon, is apparently nonbinary, although his complaint only says he identifies as male.

According to the pleadings, the plaintiff claims that that after he disclosed his pregnancy, supervisors began criticizing his work performance in an effort to demote him and he faced harassment from co-workers after his bosses told others about his pregnancy.

While the circumstances around the case are novel, should this matter make it to litigation, ideally, it will be much like any other employment discrimination suit.  However, while the case is too new for all the facts to be known, we can imagine that the suit will raise several unique question of not only what it will be like to litigate a suit raising simultaneous claims for discrimination and pregnancy discrimination, but, whether laws focused on providing pregnancy discrimination are limited to females.

For example, the Pregnancy Discrimination Act (the “PDA”) prohibits employers from hiring and other job-related decisions that discriminate against pregnant women. The PDA modified the Civil Rights Act of 1964 (a/k/a Title VII), and modified the terms “because of sex” or “on the basis of sex” to include, but not be limited to, “because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-­related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

Men have tried to bring claims under the PDA before, but this case seems to be novel in a few ways.  For instance, in Estate of Andrew Tyler Pennington v. Southern Motion, Inc., Mr. Pennington worked for Southern Motion, Inc. According to the plaintiff, shortly before Mr. Pennington’s employment with Southern Motion began, Mr. Pennington learned that his wife was pregnant and considered a high-risk pregnancy. A few months into his employment, Mr. Pennington took a day off from work to accompany his wife to a “pregnancy-related appointment.” According to the plaintiff, when Mr. Pennington tried to return to work, the company terminated his employment.

The plaintiff sued for “discrimination based on sex and pregnancy” under the PDA.

Southern Motion responded and argued that “Title VII, as amended by the PDA, … simply does not provide a claim based on the pregnancy of an employee’s spouse in the absence of proof that the employee was discriminated against because of his or her sex.”

The plaintiff countered that “discrimination against a male employee because of the pregnancy of his spouse is sex discrimination. Pennington was therefore discriminated against based on his sex when he was terminated because of his wife’s pregnancy.”

The Court decided that:

[I]n order for a male to properly bring a claim of discrimination based on pregnancy, the male must allege that he was discriminated against because of his sex…The discrimination would have to, in this case, be based on Pennington’s association with his pregnant spouse and must have been based on Pennington’s sex. Put differently, the Estate must allege not only that Pennington was terminated because of his partner’s pregnancy but that a female employee would not have been terminated because of her partner’s pregnancy. No such allegations have been made here. Accordingly, construing the complaint in the Estate’s favor, the Court finds the Estate has failed to assert sufficient facts to plausibly suggest that Pennington was treated less favorably than those outside his protected class. The Estate’s claim of sex discrimination, therefore, fails as a matter of law.

So, as you can see, the questions involved in this matter will get technical fairly quickly. However, if the court finds the plaintiff is covered by pregnancy discrimination laws, it should conduct the same analysis as in any other discrimination case, which is whether the plaintiff was were treated differently based on their membership in a protected class.

Finally, as a quick reminder, this case follows closely behind Bostock v. Clayton County, where the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity.

In Bostock, On June 15, 2020, the Supreme Court ruled in a 6–3 decision covering three combined cases that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination “because of sex” as prohibited by Title VII. In the majority opinion, the Court ruled that discrimination by employers against any employee because of that employee’s gender identity or sexual orientation is inherently the exact same discrimination “because of sex” prohibited by Title VII because employers who engage in this type of discrimination accept a certain conduct in employees of one sex but not in employees of the other sex.

Although it’s unlikely to hear about any type of jury trial anytime soon and it’s very likely (in my opinion) that this case settles out of court – it will definitely be interesting to watch in the future!


About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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1 Comments
  • gillgodjas says:

    I’m probably over-simplifying things, but it seems to me that regardless of whether the plaintiff identifies as male, female or non-binary, it doesn’t change the fact that they are pregnant and as such should be protected under the PDA.

    October 14, 2020 at 9:05 am
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