On Monday, a federal jury sided with drug maker Merck in a lawsuit brought in 2008 by Kerry Colicchio, a former senior employee who claimed she was denied a promotion because she was about to go on maternity leave and then discriminated against upon her return.
Colicchio, who had been at the company for 22 years and was a senior director in the company’s global operations excellence department, had claimed that she was told she would be passed over for a promotion to vice president that she sought because she was pregnant and about to take six months of maternity leave. She then says that her boss tried to discourage her from coming back to work by saying that “babies need their mamas.” She claimed that she was harassed when she returned to work and her previous duties were diminished. She was fired in 2007.
The vice president role eventually went to a woman hired from outside the company who Colicchio claimed as less qualified, given that she had an MBA while the new employee had just a bachelor’s. And while the new employee is a mother, the lawsuit claimed that she was hired because she hadn’t taken any maternity leave for her two children.
Merck argues that no one ever told her she was passed over for a promotion because of her leave and that it hired an outside replacement for business reasons. It also claims there was no discrimination at play in her change of duties upon her return.
In 2012, a judge sided with Colicchio, finding that the evidence that she presented amounted to gender discrimination. But this week, the jury sided with Merck. Neither lawyers for the company or for Colicchio returned requests for comment.
Pregnancy discrimination lawsuits have risen steadily over the last decade and a half, and more than 40 percent of gender-based cases about to discriminatory hiring were related to pregnancy over the last two decades or so. At the same time, more and more women are working during their pregnancies.
But it’s not always easy to prove discrimination. Of the charges filed with the Equal Employment Opportunity Commission, about 60 percent end up with a finding of no reasonable cause.
The discrimination can take subtle forms, such as denying pregnant employees small changes like light duty or more frequent bathroom breaks so they can keep working safely. About a quarter million women run into this hurdle every year, even though it should technically run afoul of current laws and the Supreme Court recently sided with a woman in just such a case.
But it can also be overtly stated, as Colicchio claimed. In a recent successful lawsuit, a nonprofit was ordered by a court to pay $75,000 because it had a “no pregnancy in the workplace” policy. A review of successful cases found that employers frequently try to claim that pregnant employees suddenly experienced performance issues, held pregnant employees to stricter attendance standards, and cited business reasons for replacing them.
Even women who aren’t pregnant have a difficult time proving discrimination in the workplace. An increasing share of sex-based discrimination cases have resulted in findings of no reasonable cause, reaching nearly two-thirds in recent years. Ellen Pao, interim CEO of reddit and former partner at venture capital firm Kleiner Perkins Caufield & Byers, lost her high-profile lawsuit this year against her former employer charging it of widespread gender discrimination. The jury didn’t find that the barriers she faced were due to discrimination, but to her own performance. A jury similarly found that Francine Katz, formerly the highest-ranking woman executive at Anheuser-Busch, wasn’t discriminated against for making less than the man whose job she took over or being excluded from important events. The jurors in both cases refused to pinpoint gender as the reason that the women were held back.
Update:
This post has been updated for clarity.