THE BLOG
09/07/2015 01:09 pm ET Updated Sep 07, 2016

White-Collar Women Don't Speak Up About Pregnancy Discrimination. Here's Why.

A woman who miscarried twins was told this might not be the right workplace for her. Another who had a stillborn child was put on a dubious performance improvement plan. And a mother who had approval to shift her schedule to accommodate her daycare routine nonetheless faced harsh criticism.

If true as reported, these are pretty clear examples of pregnancy and caregiver discrimination.

Even more telling is the account of a new mother who also had cancer that surfaced shortly after a New York Times story was published on Amazon's workplace culture. Former Amazon employee Julia Cheiffetz wrote that she returned from a maternity leave spent battling cancer to find that her underlings now reported to someone else. She was then placed under a dubious performance improvement plan.

Many of these situations very likely constituted wrongful termination on the basis of pregnancy and caregiver discrimination. And yet, based on all the evidence made public so far, few if any of these smart, well-connected white-collar workers took legal action. Most took their lumps and left.

Sadly, I'm not surprised. As someone who works everyday on pregnancy discrimination cases, I have seen time and again cases where white-collar workers are reticent to seek legal help or pursue civil cases, even in the face of blatantly illegal behavior.

Occasionally high-performing women (and a few men) are sufficiently perplexed by what happened to them that they call my office. Some even schedule an appointment. Rarely do they come looking for blood. Most are simply shocked at having experienced behavior they thought only took place in the Mad Men-era and want to know if what happened to them was legal.

Many are relieved when I tell them it's not. More than once I've heard someone who worked at a company like Amazon say they feel better knowing that they have the option of pursuing legal recourse, even though they end up not taking it.

That's too bad. The real cost is borne by the women and men who still work at these companies, which don't pay a price for discrimination, and more generally for the white-collar occupations where this kind of behavior persists.

So why don't more professionals fight for their rights against pregnancy discrimination? Here are the top five reasons why this might be happening:

1. They don't know the law on pregnancy and caregiver discrimination.

The line between what is legal and what is not regarding pregnancy and caregiver discrimination is difficult to navigate, even for lawyers. Clear cut cases are easy enough: "We just don't like pregnant women around here. You're fired." But real life is often not that clean. Take, for instance, the Army captain at Amazon. She worked while pregnant and took leave without incident. It wasn't until after she came back that the problems started. She was treated differently because she chose to leave early to pick up her baby, even though she went home and popped open her laptop to work after hours to compensate. It is illegal for a company to treat a woman or a man with children based on stereotypical assumptions about parenthood and work.

It is hard to say without knowing more if that is what happened to this worker, but the sheer number of stories in the Times article and Cheiffetz's account about the hostility of some Amazon managers to employees having children suggests that illegal stereotypes may have forced many parents out the door. Many of these employees may not have realized that they were the subject of illegal discrimination. Indeed, many have felt the opposite; that they let the company down.

(To read more about pregnancy and caregiver discrimination, check out these sites: Center for Worklife Law, A Better Balance, and First Shift.)

2. They believe "lawyering up" will ruin their career.

High-level employees have a lot at stake. Most have specialized skills honed through years and thousands of dollars' worth of education and on-the-job learning. Partly as a result, the professional circles that they run in are relatively small. The risk of being labeled "the one who sues" looms large.

This is a real concern that cannot be ignored. A good lawyer would not urge a white-collar worker to disregard this risk without serious consideration.

But the truth is that the concern is often overblown. First, most cases, particularly those involving high-level employees, are resolved before they get to court, so there is no public record of the dispute.

Second, while the stakes are high for the employee, they are high for the company too. The company likely will need to hire someone like the high-performer it just fired. Competition for highly competent workers is stiff. What do you think a nasty public fight over reprehensible behavior, even if it was by a rogue manager, will do for the company's recruiting efforts?

Which leads to the third reason why concerns about becoming "the one who sues" are often misplaced. Most legal disputes are resolved with a settlement in which both sides enter into non-disparagement or "gag" order. It works like this: After some wrangling, the employee agrees to drop her claim and the company writes a check. As part of the agreement, both parties agree to stay mum about the entire incident. The incentive to keep silent is high for both sides as a violation can lead to an entire new round of litigation.

3. They believe taking action is futile because they are at-will, so why bother?

A common misperception among employees of all levels is that "at-will" employment arrangements leave few real legal options. It is certainly true that at-will employment arrangements, which the vast majority of employees work under, give management wide latitude to end an employment relationship for reasons that are unfair, many times even cruel. Most lawyers who represent employees spend a great deal of time explaining this to callers. The unfortunate result of this is that those who have real claims come to believe that, after talking to friends, they should just move on.

For instance, take the woman told by her boss after a miscarriage that, "From where you are in life, trying to start a family, I don't know if this is a right place for you."

I don't know what happened to this woman. But one can imagine that she called her mother in tears. Only to hear when she mentioned hiring an attorney, "'Dear, you remember when your father got fired when you were in high school. We saw three attorneys only to learn there was nothing to be done. You've got a good resume. Don't waste your time, move on.'"

So she did. Not knowing that she likely was protected by the Americans with Disabilities Act, Family Medical Leave Act, and Title VII, that her manager's statements evidenced illegal discrimination, that she may have been able to get a good severance, a good review and a confidentiality agreement to cushion her while she moved onto another company.

At-will does not allow companies to wrongfully terminate employees just because they are pregnant, have children or are sick.

4. They think they need a smoking gun to win.

There are some cases with smoking-gun evidence. The email where the manager says, "I was ready to promote you until I found out you were pregnant; I can't have a pregnant woman in the senior vice president position."

Most cases lack this kind of direct evidence. As one lawyer in the Times article says, "Without clear evidence of discrimination, it is difficult to win a suit based on a negative evaluation."

True enough. Still, many very good cases lack direct evidence of discrimination, but they make up for it with strong circumstantial evidence.

Let's take Cheiffetz's story. There is not a smoking-gun email that we know of. But there is a timeline. She gets hired at the company. All is fine and she's doing well. She gets pregnant and then is diagnosed with cancer. She comes back raring to go, only to find out that she has lost her team. Then she's put on a dubious performance improvement plan.

So, what happened? Did her performance really change that much for the worse after she returned? Probably not. That explanation seems unlikely given the number of eerily similar stories detailed in the Times article, stories which Cheiffetz could not have known at the time.

5. They feel guilty.

Non-professional workers often have arms-length, sometimes even hostile, relationships with management. If they experience discrimination, personal regard for a former boss will not stop them from seeking help.

This is not the case with high-level workers. Before things go south, they have good relationships with supervisors. There are happy hours, many conference-room lunches, and plane trips. Chances are the fired employee knows the names of HR director's children, the very same director who delivered the pink slip.

Can you really point the finger at this person who is, at work at least, a friend? Wouldn't it be just wrong to come charging back in, pointing at these folks who you used to share drinks with? Won't you just look like someone complaining about sour grapes?

Certainly these are normal, if misguided, thoughts. The reason high-level workers face discrimination is because they get in the way of the bottom line. That hard-charging young woman gets all smiles and "atta girl's" from the higher ups when she's working around the clock making scads of money for the company. Suddenly, however, the treatments is less rosy when she gets pregnant and takes a few months' leave.

The young gun coming up behind the new mother becomes the new favorite. Assuming that the new mother will never live up to her former childless self (even if it's not true), someone in the management chain is smart enough to cover his rear end looks for reasons to give negative reviews, holding the new mother to a standard that, as it turns out, no one else is being held to. After two rounds of these bogus reviews, there is a closed-door meeting with HR. At the end of the day, the decade-long work history and personal relationships mean little to nothing. It's all about the bottom line.

The company looked at that new mother and made a cost-benefit analysis, even if it was an inaccurate one. She should do the same and forget the past warm fuzzies. She should look at what happened clear-eyed and make the best decision for her.

As for feeling bad about hiring a lawyer, you can bet that the company has one that it relies on for legal advice. Why shouldn't she?

Where does this leave the current and former employees of Amazon and the many others like them? Often, there are times when it's not worth it to fight, especially when, like these workers, there are other good employment opportunities available to them.

Still, for every ten people that shouldn't bother, there are one or two who should fight, for their own good, and also because high-level employees often can make the greatest impact for other workers when they fight back.

The only way companies like Amazon will change their treatment of pregnant workers is when managers face consequences for pushing people out the door based on inaccurate stereotypes.

The history of American labor always involves a little struggle and strife. White-collar women shouldn't be afraid to speak out when they are mistreated. If they don't, things will stay the same.

Tom Spiggle is author of "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace," now available on Amazon. He is founder of the Spiggle Law Firm based in Arlington, Va., where he focuses on workplace law specializing in helping clients facing discrimination due to pregnancy or other family-care issues, such as caring for a sick child or elderly parent. To learn more, visit: www.yourepregnantyourefired.com.