44 Trial Lawyer • Summer 2022 “marital status,” which is undefined and does necessarily fit a situation where an employee is terminated for telling her employer she’s trying to get pregnant. If Sierra was a public employee, she may have been able to pursue a Section 1983 claim for a violation of her 14th Amendment rights. Paxton v. Bearden, 783 F. Supp. 1011, 1014 (N.D. Miss. 1992) (“[T]he Fourteenth Amendment of the United States Constitution protects a woman’s right to conceive and bear children.”). Some states have gone further to explicitly prohibit discrimination on the basis of “changes in marital status, pregnancy, parenthood” (Alaska, AS 18.80.220) and “family responsibilities” (Di s t r i ct of Columbi a , DC Law 2-1402.11), both of which might lend itself more easily to protecting a family trying to conceive. Connecticut (CGS 46a-60) prohibits employers from requesting or requiring information relating to an employee’s “child-bearing age or plans, pregnancy, function of the individual’s reproductive system, use of birth control methods, or the individual’s familial responsibilities,” which could perhaps give rise to a strong claim for wrongful discharge in violation of public policy. A somewhat related concept of “familial status” discrimination has been incorporated into Oregon’s Fair Housing laws. While “familial status” does not explicitly reference employees trying to conceive, it states that it covers a person “who is pregnant or is in the process of securing legal custody of an individual who has not attained 18 years of age.” Oregon state employment laws have not yet incorporated “familial status” discrimination, but at least seven local city codes have. See, Portland City Code § 23.01.050. And Portland City Code expressly uses Oregon’s employment discrimination remedial scheme to enforce its own anti-discrimination Pregnanct or Trying Continued from p 43
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