Could Fired Fashion Buyer sue Five Below for Pregnancy Discrimination?

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Employers can violate state and federal law if they terminate an employee because the employee is pregnant. But the employee will have to show that the pregnancy was the reason for firing her. A case involving a buyer for Five Below illustrates what facts courts may focus on when deciding whether the pregnancy and termination are connected.

In that case, a merchandise buyer for Five Below had never had a negative performance review since joining the company in 2017. In December 2019, she told her colleagues she was pregnant and would take leave in June 2020 to give birth.

The company terminated her in May 2020. The HR director told her it was due to restructuring, not her performance. She was the only pregnant employee fired during the reorganization. Shortly, thereafter, a worker from another department with less experience took over her position. 

The employee sued the company for pregnancy discrimination under under Title VII and the Pennsylvania Human Rights Act.

Five Below asked the court to rule in its favor prior to trial. It argued that the employee could not show her termination was connected to her being pregnant.

To establish an initial case of pregnancy discrimination, an employee must show that:

• She is or was pregnant and that her employer knew she was pregnant;
• She was qualified for her job; 
• She suffered an adverse employment decision; and 
• There is some nexus between her pregnancy and her employment termination that would permit a judge or jurty to infer unlawful discrimination.

Did the employee establish a pregnancy discrimination case?

A. Yes. The timing of her termination was suspicious.

B. No. The many months that passed between her announcement that she was pregnant and her firing showed the two were unconnected.

If you selected A, you agreed with the court in Brennan v. Five Below, Inc., No. 22-1383 (E.D. Pa. 03/13/25), which held that the circumstances demonstrated that she may have been fired because of the pregnancy.

The court acknowledged that the employee first informed the company she was pregnant in December 2019 and that she was not fired until several months later. It also conceded that there was no evidence that supervisors made negative comments about her pregnancy.

However, the court noted, the employee told her colleagues in December 2019 that she was due to  give birth and take maternity leave in June. Moreover, the company terminated her on May 19—less than a month before her due date. This was  "unusually suggestive" of discrimination, the court remarked. 

“By [Five Below’s] reasoning, an employer who learned of an employee's pregnancy months before she was due could simply wait until right before her due date to fire her,” the court wrote.

It pointed out that it is suggestive of discrimination if a company fires a worker when she announces she’s pregnant. But it is just as telling when the termination comes shortly after the date the employee is planning to take pregnancy leave.

The court also pointed out that the employee was the only pregnant employee and the only buyer who was fired during the restructuring. Further, the employee who filled her spot had less experience.

Those factors, along with a supervisor's comment that the pregnancy may have entered her mind when she considered terminating her, helped show a possible connection between her termination and pregnancy. The court also found that the employer’s stated reason for the termination – that she was being fired for termination - was pretextual.

The court denied judgment to the employer.

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