When Mallory Barker learned she was pregnant, it should have been cause for celebration. Instead, she found herself unemployed.
The story goes like this: In late August 2011, Barker’s aunt, Cindy Safstrom, hired the 20-something college student and sometimes nanny as a part-time after school arts and crafts instructor at the prestigious University School of Milwaukee (USM), a private K-12 school. Two months later, Barker, who also lived with her aunt, discovered she was expecting and told her cousin (Safstrom’s daughter). Two days after sharing the news, she received a voicemail from her aunt announcing her dismissal.’
Specifically, Safstrom told Barker that she would “have to let [her] go” and that it’s “just not working out the way we had anticipated,” according to U.S. Equal Employment Opportunity Commission (EEOC) Senior Trial Attorney Dennis R. McBride.
Barker filed a charge with the EEOC in 2012, claiming she was fired on the basis of her pregnancy, which the agency accepted.
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“You tell me, does that sound like someone being told they still have a job?” McBride, one of leading litigator in Barker’s case, told Rewire. “It’s clearly not ‘I want you to work for me forever and a day.’”
According to the Joint Scheduling Conference Report, the school denied these allegations, insisting that Barker “walked off the job” and didn’t return to work per request. Besides, she was not punctual and performed her job poorly, asserted USM—although, says McBride, the school had taken no action to terminate her employment on this basis. (He admits the contested termination is not so much a reflection of the school as it is the possibility of a “rogue employee.”) The school agreed to settle the suit (EEOC v. University School of Milwaukee) in March, paying $37,500 in relief.
“Unfortunately, [the Barker case] is another example of blatant discrimination workers continue to face based on pregnancy,” Sarah Crawford, director of workplace fairness for the National Partnership for Women and Families, told Rewire.
According to EEOC data, Barker’s suit is one of 3,745 pregnancy discrimination charges filed with the agency in 2012, which is 240 fewer cases than in 2011. When combined with the Fair Employment Practices Agency charges, the 2011 number jumps to nearly 5,800. While the joint agency data shows a decline over the last four years, it also exposes a 35 percent uptick of filings between 1997 and 2008.
Yet, according to the 2008 National Partnership report, that uptick is drastically higher—65 percent—when analyzing EEOC charges filed between the 1992 and 2007 fiscal years. The report also revealed that claims by women of color jumped 76 percent between fiscal years 1996 and 2005, accounting for much of the 25 percent increase in pregnancy discrimination allegations during that same period.
“It’s hard to know exactly what accounts for that rise. We would certainly hope that workers are gaining more and more familiarity with their rights under the Pregnancy Discrimination Act, so they may be more inclined to challenge unlawful treatment when it happens,” said Crawford. “But at the same time, we see case after case involving blatant employment discrimination on the basis of pregnancy, which suggests that some employers either aren’t aware of their obligations under the law or just feel at liberty to blatantly violate the law.”
What Does the Pregnancy Discrimination Act Mean?
The 1978 Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964, explicitly prohibits sex discrimination on the basis of pregnancy. Chiefly, it states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected by similar in their ability or inability to work.” Or, as somewhat clarified by the EEOC’s 2007 Enforcement Guidance on Caregiving, an employer cannot refuse to hire a job applicant on the basis of her pregnancy, and “may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy.”
In other words, if a pregnant employee’s work capabilities are comparable to a worker with a disability, temporary or otherwise, treatment of both workers should be similar.
“Should be” are the operative words, notes National Women’s Law Center Vice President and General Counsel Emily J. Martin. Unlike the American With Disabilities Act (ADA), which explicitly maintains companies must reasonably accommodate workers with disabilities, the PDA does not bare such transparent commands. Instead, its interpretive language muddies the waters of obligation and culpability, and further disenfranchises the 62 percent of working pregnant individuals in enforcing their rights. Some employers have even used this perplexity to their advantage, Martin notes, arguing pregnant workers are not at all similar to someone injured on the job, and therefore do not have to be obliged.
“That’s a misreading of the clear language of the act but some courts have agreed with that, and that’s what complicates the situation for pregnant employees,” Martin told Rewire. Her organization filed an EEOC complaint last month on behalf of Amy Crosby, a pregnant Tallahassee Memorial Hospital worker forced to take unpaid leave after a light duty request was denied. Crosby and the hospital recently agreed to a confidential settlement, which includes Crosby’s continued employment at the medical institution. “It opens the door for employers to say, ‘Well, they’re not really similar because there are all these distinctions,’ and to distinguish away the way they accommodate other workers with disabilities,” said Martin.
Martin points to Wiseman v. Wal-Mart Stores, Inc. and Young v. UPS as cases demonstrating injurious court decisions that run contrary to the PDA’s intention. In both cases, the plaintiffs contended their employer violated the Pregnancy Discrimination Act by not providing judicious accommodations as needed by a pregnancy-related condition.
In Wiseman v. Wal-Mart, Heather Wiseman, a sales floor associate for a Wal-Mart in Salina, Kansas, who experienced frequent urinary and bladder infections during her pregnancy, was told she couldn’t carry a water bottle while working, despite doctor’s orders to stay hydrated. Her manager asserted it was against company policy, although, according to court documents, this rule changed to prohibit non-cashier employees from having water bottles only after Wiseman became pregnant. Despite this directive, she continued to carry bottled water and was subsequently fired for “insubordination” in 2006. Ruling in Wal-Mart’s favor, the U.S. District Court of Kansas wrote that “[i]nsubordination is a legitimate, nondiscriminatory reason” and her reasoning is flawed because “under the ADA pregnancy is not a disability.”
In Young v. UPS, Peggy Young, a pregnant United Parcel Service (UPS) truck driver in Landover, Maryland, was told by her health-care provider in late 2006 that she should lift no more than 20 pounds during the first 20 weeks of her pregnancy, and no more than ten pounds after that point. According to court documents, she submitted an accommodation request to UPS but was informed she was ineligible for light duty under company policy, as it only applies to workers injured on the job who have an ADA-covered disability or are stripped of their Department of Transportation certification. She was allegedly forced to take unpaid leave as a result. In 2011, a district court ruled in favor of UPS—a decision affirmed on January 9 of this year by the Fourth Circuit Court of Appeals. In issuing its opinion, the court wrote that “a pregnant worker subject to a temporary lifting restriction is not similar in her ‘ability or inability to work’ to an employee disabled.”
“[The decision] distinguished away all the people UPS accommodated … making it very hard for the pregnant worker to identify someone who is similar enough under law,” said Martin of Young’s case, which occurred before the Americans With Disabilities Act was expanded, in 2008, to include temporary and much more severe disabilities. (The amended act was not made retroactive by Congress.)
Young’s case is currently on appeal to the Supreme Court, according to Martin. Whether the highest court takes the case is to be seen, but if it does and overturns the decision, the NWLC executive believes it would be “very important for pregnant women everywhere.” While possibly too late for Young’s case, the Maryland General Assembly did pass the Reasonable Accommodations for Disabilities Due to Pregnancy bill in early April, which would grant pregnant workers in the state with accommodations similar to employees with temporary physical limitations. Maryland Governor Martin O’Malley is expected to sign it into law in May.
As if déjà vu, UPS is facing down another pregnancy discrimination claim—this time, in the form of an EEOC complaint filed the ACLU and New York Civil Liberties Union in January on behalf of truck driver Julie Mayer. According to an ACLU blog post written by Mayer, the manager at the UPS facility where she worked on Long Island not only refused her light-duty request but wouldn’t allow her to fill a vacant position in which she was already trained. Instead, she claims she was “forced to leave work altogether for the duration of my pregnancy, even though I was willing and able to keep working.” New York Gov. Andrew Cuomo (D) and other advocates, like New York for Women’s Equality are currently working to pass the New York Women’s Equality Agenda, a tten-point plan that includes a measure requiring employers to “provide reasonable accommodations for pregnancy-related conditions”—for workers like Mayer.
Young’s case is also similar to the 2006 Reeves v. Swift Transportation Company Inc. case. During her pregnancy, Amanda Reeves, a trucker driver for Swift Transportation, was instructed by her obstetrician to not lift more than 20 pounds, 55 pounds less than required by her job duties. Rather than grant her request for light-duty work, her employer terminated her position in the fall of 2002, claiming it “had no light work for her to do.” Much like UPS, Swift maintained a policy in which light-duty tasks were only given to employees who sustained on-the-job injuries. The court ruled in Swift Transportation’s favor.
Reeves’ and Wiseman’s suits are five examples cited in the NWLC’s 2012 fact sheet illuminating seemingly disconcerting court decisions in favor of employers.
The Face of Pregnancy Discrimination
Termination is just one face that pregnancy discrimination takes in the workplace—and the ways in which it manifests vary greatly between income and professional levels.
Brazen discrimination is more likely with lower-wage, physically demanding work, such as in the retail, hospitality, restaurant, hospital, health-care, and janitorial industries. Often times, say Crawford and Martin, employers of these occupations will downright discharge a pregnant employee, force them to take unpaid leave, or refuse to temporarily ease their workload.
“We are particularly concerned about the impact for low-wage workers, those who may be more vulnerable in the workplace and may be less aware of their rights or less likely to exercise their rights,” said Crawford. “For low-wage workers, which are, unfortunately, disproportionately populated by women of color, we often see those being physical jobs where very simple requests are frequently denied.”
In fact, 33 percent of pregnancy discrimination claims—or more than 15,200 total cases—filed between 1996 and 2005 were in the service industry (meaning education, healthcare, leisure and hospitality, and other services), reports the National Partnership. According to a 2005 U.S. Bureau of Labor Statistics report, women accounted for over 48 percent of workers in those combined sectors, with over 57 percent of women representing service occupations overall. The wholesale and retail trades represented the second highest number of women-occupied positions—14.5 percent—and also accounted for nearly 8,000 cases filed between 1996 and 2005.
Ethnically, the Bureau of Labor Statistics shows that, in 2009, Hispanic women represented 32 percent of service occupation employees, with Black women representing 29 percent, Asian women representing 21 percent, and white women 20 percent. And according to the National Partnership’s 2008 report, charges filed rose by 45 percent for Black women, 135 percent for Hispanic women, 109 percent for American Indian/Alaska Native women, and 90 percent for Asian/Pacific Islander women between 1996 and 2005, while claims filed by white women fell nearly 16 percent. It’s a statistic compounded by economic disparity; African-American women and Latinas employed full-time make 30 and 40 cents less than men, respectively, with nearly 40 percent of African-American- and Latina-headed households living in poverty.
“Whenever you have intersecting forms of discrimination, that leaves workers particularly vulnerable [to exploitation and abuse] because an employer places a low value on that employee’s work and feels that employee is not going to push back,” said Martin. “Women of color and immigrant women, they are a heavier brunt of that.”
However, pregnancy discrimination is harder to identify in managerial and professional occupations, agree Martin and Crawford. Whereas violations are more deliberate in traditionally lower-wage work, white-collar inequity is far more cloaked, disguising itself as conjecture around a pregnant worker’s desire to take on additional tasks or disingenuous concern for their ability to handle current workloads because their pregnancy “needs more focus.”
“Whenever you’re in a position of trying to demonstrate what’s in somebody else’s head, what someone else’s motivations are, that can be challenging, assuming they aren’t saying anything overt,” said Martin.
Numbers wise, white-collar industries, such as finance, insurance, and real estate, only received about 3,000 filings between 1996 and 2005, according to the National Partnership. According to Bureau of Labor Statistics data, Asian women held the majority of managerial, professional, and related positions—45 percent—in 2005, with 39 percent held by white women, 30 percent by Black women, and 22 percent held by Hispanic women. These numbers increased an average of 2.75 percent across the board in 2009.
These figures, though, cannot accurately divulge the breadth of pregnancy discrimination. After all, there is one segment of the female labor force that lives in the shadows: undocumented women.
“It’s really hard to get those numbers, particularly among Latinas and immigrant workers,” Kimberly Inez McGuire, associate director of government relations and public affairs for the National Latina Institute for Reproductive Health, told Rewire. “Part of the reason why pregnancy discrimination happens is exactly because these are women who are not going to likely participate in a lot of surveys and data collection. These are women who are, in many ways, invisible.”
Language differences and immigration status can often act as barriers for undocumented women who sit “at the intersection of a lot of different kinds of discrimination and exploitation,” such as wage theft, sexual harassment, and unsuitable working conditions, said Inez McGuire. These women, the majority of whom work physically demanding jobs in the hospitality and domestic trades, may be unable to report workplace abuses because the person she would report to may not speak her language, or they feel disempowered due to fear their status is “going to be called into question and used against them.”
Another important aspect to consider, according to Inez McGuire, is that many immigrant women work in the “informal economy.” This means they’re employed at places that “don’t have paperwork” or a Human Resources department, and have no “helpful posters on the wall that tell workers what their rights are.”
“The two kinds of pregnancy discrimination that immigrant women working in the informal economy, working in the lower-wage sectors, are going to face are either they would outright lose their job … or they’re given an ultimatum of ‘You can either continue to do your job and do it at the same level of productivity with no accommodation or you can leave,’” said Inez McGuire. She believes comprehensive immigration reform is necessary to “[bring] these women out of the shadows.”
“Immigrant women are less likely to benefit from any kind of infrastructure or intentional, thoughtful accommodations because they’re often at the whims of an employer,” she said.
The Economics of Pregnancy Discrimination
For many individuals, pregnancy discrimination can have an astounding financial impact. If fired or pushed to take unpaid leave, it can be difficult for the pregnant person to support herself and her family. This is especially perilous for mothers, who make up the nearly two-thirds of primary or co-income providers, according to the Center for American Progress in 2009. (in 2011, 28.1 percent of wives earned more than their husbands, according to the labor statistics agency.) Mounting medical bills conflict with a loss of health insurance, and the disappearance of a once-consistent paycheck causes friction against a weekly grocery bill.
“When employers won’t make these reasonable accommodations, that has an incredibly harsh financial impact on a family in a moment they can least afford it,” said Martin. “In general, when you’re about to add another person to the family, your expenses are about to go up, not down.”
This is a reality Megan Spreer knows too well. The Lawrence, Kansas, resident says she was dismissed from her position as a content manager for a tech start-up in Kansas City, Missouri, in 2011, six months into her pregnancy. Her termination, she claims, occurred two weeks after being told the entirety of her maternity leave would be covered by her company, with the ability to transition back into the workplace after eight weeks’ leave. The reason? “Upper management and the financial backers of the company determined that my department was no longer a profitable sector of the company. So they downsized it from two employees to one,” she said in an email. She says that six months later, the company hired someone in her former position—just outside the window of opportunity to file a pregnancy discrimination lawsuit.
“The financial costs to my family were significant, since we’d planned to be covered throughout my pregnancy and leave. I had to go on unemployment benefits. These benefits only lasted for six months and, even so, were lower than what I’d previously made,” said Spreer, who was out of work for over a year. “Even with the benefits, we struggled. I spent almost every spare moment clipping coupons and searching for deals to keep us fed. We even got many food boxes from local church pantries. There were a couple months we couldn’t pay rent and had to ask my husband’s parents for help. I tried desperately to pick up contract work, but with an infant at home and being unable to afford day care, it was nearly impossible.”
Financial struggle makes for a bleak employment outlook for mothers and pregnant women, who are less likely to be called in for a job interview than non-pregnant women or women without children, according to Stephen Benard, a professor of sociology at Indiana University. Benard presented these findings in a written testimony for a February 2012 EEOC meeting on pregnancy and caregiver issues.
“I continue, in my little piece of the world out here in Milwaukee, to be dismayed that pregnancy discrimination seems to continue fairly unabated,” said McBride. “It just seems to me that what we keep hearing in this country is a lot of ‘family values.’ What could be a truer family value than to make sure the people who want to work, who have children have gainful employment?”
The negative economic impact is not limited to employees, though. Businesses that endorse such unlawful certitudes can also experience financial burden in the forms of recruitment and training costs, says Crawford—for instance, 50 to 150 percent of an employee’s annual pay (or roughly $40,000 on average).
Actually, as previously reported by Rewire, a 2012 Job Accommodation Network report revealed that, for 57 percent of employers, providing accommodations for employees with disabilities “cost absolutely nothing.” For those 21 percent of employers that did incur a one-time cost, the amount typically came to $500, with an additional $400 paid out for accommodations provided to employees without a disability in a similar position.
Such an assertion is further supported by the price companies pay in litigation settlements. Just this year, Mississippi-based Landau Uniforms paid out $80,000 and Las Vegas’ Engineering Documentation Systems paid out $70,000 to resolve pregnancy discrimination complaints. Facing a similar grievance, North Carolina’s Britthaven paid a $300,000 settlement in 2009. That’s $75,000 less than what Philadelphia’s Motherhood Maternity paid to settle an EEOC charge in 2007. And in 2012, well-known specialty retailer Delia’s paid a $75,000 settlement, while Georgia’s Chemcore Industries paid a $30,000 settlement.
As for the University School of Milwaukee, Barker will use the $37,500 she received in settlement to return to school and pursue her goals of working as an art therapist for children with autism, says McBride.
“In a lot of instances, it would be cheaper for the employer to give the stool, to let the employee carry the water bottle. Many of these accommodations would not be burdensome,” said Martin. “In taking this sort of stance, they’re not acting in their business’ best interest.”
Many of these loopholes and discriminatory practices would close if the Pregnant Workers Fairness Act (PWFA) were to pass in this new Congress. The bill, originally introduced in 2012 and expected to be reintroduced in the coming weeks, would prohibit employers from denying “reasonable accommodations” and “employment opportunities” based on pregnancy-, childbirth-, and medical-related limitations, unless it imposes undue hardship, and from forcing an employee affected by these conditions to either accept unwanted accommodations or take leave when reasonable accommodations can be provided.
“This is a critical time in a family’s life, where your family is growing and income becomes even more critical,” said Crawford. The National Partnership and the NWLC were critical in drafting the PWFA. “This bill is really a reasonable effort to keep pregnant workers in the job the same way others workers with similar conditions. … This is a bill that really equalizes that treatment.”
While the PWFA provides some hope for alleviating pregnancy discrimination, it is not the only step being taken to turn the tide.
As part of its Strategic Enforcement Plan for fiscal years 2013 to 2016, the EEOC identified pregnancy discrimination as an issue of national priority. In undertaking the problem, the agency will take an integrated approach by implementing administrative enforcement and legal enforcement and issuing guidance and outreach efforts, says Justine S. Lisser, the commission’s senior attorney-advisor in the Office of Communications and Legislative Affairs.
“The EEOC has a really important role to play as the agency that tells employees, employers, and courts what the law means, and saying that, ‘What this means is now that you have to accommodate disabilities, you have to treat pregnancy just as well,’” said Martin. “I’m optimistic that, as part of the strategic enforcement efforts, the EEOC is going to issue more of this clear guidance, which helps employees and employers understand the law and avoid this issues from ever arising.”