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  3. Written Testimony of Sharon Terman Senior Staff Attorney Gender Equity and LGBT Rights Program Legal Aid Society-Employment Law Center

Written Testimony of Sharon Terman Senior Staff Attorney Gender Equity and LGBT Rights Program Legal Aid Society-Employment Law Center

Meeting of February 15, 2012 - Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities

Good morning. I am very pleased to be here today to discuss the important issue of unlawful discrimination against pregnant workers and workers with caregiving responsibilities.

Since 1983, the Work and Family Project of the Legal Aid Society-Employment Law Center has advocated to protect the employment rights of low-wage workers who are at risk of losing their jobs because of pregnancy or caregiving responsibilities. In addition to representing clients in litigation, we also staff a toll-free Work and Family Helpline, and provide advice and counsel to workers every day who face challenges on the job due to pregnancy, childbirth, or the need to care for an ill family member. Most of our clients live paycheck to paycheck. Many are single parents who work inflexible jobs while caring for children and elderly parents. When these workers' rights are denied, they face devastating consequences to their health and well-being and financial security.

Their stories include the following:

  • A Filipina telephone operator who told the owner of her company that she was pregnant. He replied: "That's not going to work," and fired her the next day.
  • A restaurant server who was fired after announcing she was pregnant. When she went to pick up her final check, her manager said, "The reason you're not here is because you're pregnant. You're a liability."
  • A Latina single mother who worked as a driver for a medical supplies company. When she asked for help lifting heavy objects due to her pregnancy, her employer placed her on a forced unpaid leave, even though she was able, and desperately needed, to keep working. The company then fired her two days before she gave birth.
  • A warehouse worker whose doctor advised her not to fill propane tanks or drive a utility vehicle during her pregnancy. Her boss refused both requests, remarking, "You can pump your own gas, so why can't you fill a propane tank?" and "Overweight people can climb in and out of the vehicle, so why can't you?"
  • An African American shopping mall employee, whose manager questioned her commitment to her job when she requested time off for prenatal care, and repeatedly recounted how he had forced another Black pregnant woman to go out on stress leave and quit her job. As a result of the harassment, our client went into pre-term labor, and her son was born with serious health problems.
  • A single mother who worked in the kitchen at a country club, who, after disclosing her pregnancy, was transferred to a more physically demanding job. Her manager remarked, "Pregnant women become clumsy," harassed her for needing to use the bathroom frequently, and told her she wouldn't be able to care for her child while working. He fired her after she returned from leave.
  • A monolingual Spanish-speaking janitor who was told there was no more work for her when she tried to resume her job after maternity leave. Her boss said, "Women don't work as well after having a baby."

Pregnancy and Caregiver Discrimination Against Low-Wage Workers

Unfortunately, the above stories are far too common. Complaints of pregnancy discrimination increased nearly 65 percent from 1992 to 2007, and complaints by women of color in particular rose dramatically.1

Our office, too, has seen a significant increase in the number of poor workers seeking assistance since the start of the economic downturn. On average, we have received approximately 1,000 calls per year on work and family issues alone—unprecedented numbers.

Following are some of the trends that emerge from these calls and our case files.

1. Hostility to pregnant women in low-wage jobs is often blatant.

Although federal and state laws forbidding pregnancy discrimination have been in effect for over 30 years, pregnancy discrimination against low-wage workers persists and frequently remains blatant. Indeed, we have heard from countless women who were fired immediately after announcing their pregnancy, and whose employers expressly told them that pregnancy was the reason for their discharge.

Pregnancy-related harassment is also commonplace in low-wage workplaces, with employers making offensive remarks about pregnant women, asking intrusive questions about workers' sex lives and childrearing plans, and unduly criticizing women's work performance following disclosure of pregnancy.

2. Low-wage pregnant women are often forced to take unpaid leave against their will, based on employers' unfounded assumptions about their ability to work.

In recent years, our office has observed an increase in one form of pregnancy discrimination in particular: after a woman discloses that she is expecting a baby, her employer places her on an involuntary unpaid leave for the remainder of her pregnancy based on the assumption that she can no longer safely perform her job—even when there is no medical need for leave. Often this action follows on the heels of a woman's request for a modest workplace accommodation.

Frequently, an employer forces a woman to take leave early on in pregnancy, causing her to exhaust all leave time long before giving birth. Then, at the conclusion of the allowable leave period, the employer fires the woman for not being able to return to work.

3. Low-wage pregnant women are frequently denied reasonable accommodations that would enable them to keep working while maintaining a healthy pregnancy.

Another common form of pregnancy discrimination against low-wage workers involves refusing to grant doctor-advised workplace accommodations. For example, a pregnant cashier may need to sit on a stool rather than stand on her feet for 8 hours a day. Other examples include:

  • Being allowed to take frequent bathroom breaks;
  • Being relieved from lifting heavy objects;
  • Not being exposed to toxic fumes; and
  • Drinking water or snacking frequently during a shift.2

Accommodations may be necessary for a safe, healthy pregnancy. The modifications needed by pregnant women are often minimal, are time-limited by definition, and are cost-effective for employers—allowing women to remain productive workers throughout their pregnancy. Yet these requests are routinely denied, forcing women to choose between their health and their job.

4. Low-wage workers are often denied medically necessary leaves for pregnancy or childbirth, or are denied reinstatement upon their return.

Some amount of time off is medically necessary for all women who give birth. Health care providers typically recommend that pregnant women remain on leave for 6 weeks post-birth, or 8 weeks post-birth in the case of a C-section. Women may need intermittent time off for prenatal care, and may be advised to begin leave before childbirth as well.

Additional time off may be necessary if a woman experiences severe morning sickness, is advised to go on bed-rest for pre-term labor, or has other pregnancy-related disabilities. Likewise, women may need extended leave to recover from childbirth-related conditions such as post-partum depression.

The Family and Medical Leave Act (FMLA) provides eligible workers the right to job-protected time off for pregnancy-related conditions and childbirth, and requires continuation of health benefits. However, a significant minority of employers are not in basic compliance with the mandates of the Act.3 Furthermore, because of the law's stringent eligibility requirements, only about half the workforce is covered, and low-wage workers are disproportionately excluded from the law's protections.4 Because the leave is unpaid, many low-income workers simply cannot afford to take it. The vast majority of low-wage employees lack access to even a single paid sick day for short-term illnesses or to care for an ill family member.5

As a result, low-wage workers frequently are denied essential leave, their leave is cut short, or they are retaliated against for taking necessary time off. The result is that far too many vulnerable workers lose their jobs and health insurance precisely when they need them most—when they are having a baby or dealing with a family medical crisis.

5. In low-wage workplaces, there is widespread miscommunication and misinformation about family and medical leave, accommodation, and anti-discrimination protections.

Federal and state family medical leave, accommodation, and anti-discrimination laws have varying eligibility requirements, causing widespread confusion among employers and employees regarding which laws apply. This lack of awareness leaves low-wage workers, particularly those with limited English proficiency, vulnerable to job loss when they are pregnant or caring for ill family members. Every day, we receive calls on our helpline from workers who are confused about their leave and accommodation rights or whose jobs have been threatened by employers who were unaware of their legal obligations, or simply disregarded them.

For example:

Teresa, a Spanish-speaking nursing home attendant, was recently fired from her job when she asked for time off to care for her elderly mother who had been hospitalized in Mexico. Her supervisor refused to accept her mother's doctor's note because it was in Spanish, and fired Teresa, even though she was eligible for job-protected leave under the FMLA and the state version of the Act.

Angela, an Asian American retail store employee, was fired from her job when she asked for additional time off after having a baby to recover from post-partum depression. Her employer sent her a letter saying she had exhausted all her family medical leave, so she had to return to work or be fired.

The EEOC Should Provide Clear Guidance Regarding the Pregnancy Discrimination Act, Title VII, and the Americans with Disabilities Act.

The rise in pregnancy discrimination complaints in recent years suggests that employers and employees would benefit from clear guidance from the EEOC regarding the protections afforded under the Pregnancy Discrimination Act, Title VII, and the Americans with Disabilities Act. We would welcome such guidance that includes the following principles.

1. Employers Violate the PDA When They Base Adverse Actions on Stereotypes of Pregnant Women's Capacity to Work.

The EEOC should make clear that an employer violates the Pregnancy Discrimination Act (PDA) when it terminates a woman because she is pregnant, might become pregnant, or recently had a child. It is well established that the PDA forbids subjecting a woman to adverse actions based on unfounded assumptions that she cannot safely perform her job.6 Yet the prevalence of forced leave and blatant pregnancy discrimination suggests that this point requires emphasis.

EEOC guidance should make clear that if a pregnant woman does not request a duty restriction, transfer, modified schedule, or leave on the advice of her health care provider, then her employer violates the PDA by imposing them on her.

Moreover, when employers expressly state that pregnancy is the reason for their adverse action, such evidence is more than sufficient to prove a violation of the PDA. No comparator evidence is required in such circumstances. See 2 EEOC Compliance Manual § 615, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities at pp. 19-20 (2007), available at

caregiving.pdf

. Further, an employee may prove a PDA violation by presenting evidence that she was treated favorably before announcing her pregnancy and was subjected to negative treatment after her disclosure. As in retaliation claims, the temporal proximity between an employee's disclosure of her pregnancy and an adverse action may be strong evidence of discriminatory intent, without the need for comparative evidence.7

2. Reasonable Accommodations and a Good-Faith Interactive Process Are Required for Pregnancy- and Childbirth-Related Disabilities Under the ADA.

Even after the enactment of the Americans with Disabilities Act Amendments Act (ADAAA) in 2008, the EEOC has maintained its position that pregnancy itself is not a disability within the meaning of the ADA. 29 C.F.R. Pt. 1630, Appendix (Mar. 25, 2011). However, especially in light of the ADAAA's expansion of the concept of disability, a variety of pregnancy and childbirth-related impairments may qualify as disabilities. Id. The definition of disability is a physical or mental impairment that substantially limits one or more major life activities. 29 C.F.R. § 1630.2(g). Impairment is defined to include "any physiological disorder or condition . . . affecting one or more body systems. . . ." 29 C.F.R. § 1630.2(h) (emphasis added).

While pregnancy may not be a disability per se, most women will have a disability within the meaning of the ADA at some point during pregnancy or childbirth. In particular, during and following childbirth, women by definition have an impairment—a "physiological . . . condition affecting one or more body systems" that substantially limits one or more major life activities. 29 C.F.R. Pt. 1630, App.

Furthermore, employees with impairments that are caused or aggravated by pregnancy or childbirth—for example, gestational diabetes, hypertension, back pain, or post-partum depression—may have disabilities within the meaning of the ADA. As such, employers must provide these women with reasonable accommodations, and must engage in a good-faith interactive process.

Importantly, employers should conduct a fact-specific, individualized assessment of the employee's disability and need for accommodation. The full range of accommodations should be available to pregnant employees, including modified work duties, lifting aids, transfers, and leave. Even when FMLA leave is unavailable or has expired, employees may be entitled to leave as an accommodation for a pregnancy- or childbirth-related disability.

3. Even When Pregnancy-Related Conditions Do Not Meet the Definition of Disability under the ADA, Accommodations May Be Required Under the PDA.

The PDA mandates that employers treat those with pregnancy, childbirth, or related conditions the same as those who are similar in their ability or inability to work. 42 U.S.C. § 2000e(k). In light of the ADAAA, employers now are statutorily obligated to provide reasonable accommodations and engage in the interactive process with a broader range of employees, including those with temporary conditions. 29 C.F.R. Pt. 1630, App. Accordingly, the PDA now must be read to mandate equal treatment for those affected by pregnancy, childbirth, or related conditions and this broader range of comparators.8 For example, if, under the ADA, an employer would be legally required to accommodate a lifting restriction for a non-pregnant person with a temporarily disabling back condition, the employer must provide such an accommodation to a pregnant woman.

Further, as the EEOC has recognized, employer policies that deny leave or other accommodations may have an unlawful disparate impact on women. See 29 C.F.R. § 1604.10(c); Abraham v. Graphic Arts Int'l Union, 660 F.2d 811, 819 (D.C. Cir. 1981) (holding that excessively short or non-existent leave policies can create disparate impact liability).

4. A Hostile Work Environment Based on Pregnancy Constitutes Sex Discrimination.

Employers have a duty to maintain workplaces free of hostility based on pregnancy. Examples of unlawful harassment based on pregnancy may include:

  • Offensive remarks, humiliating treatment, invasive questions about private matters relating to pregnancy, childbearing, or childrearing;
  • Expressions of hostility toward women who disclose pregnancy and/or request pregnancy-related accommodations; and
  • Negative actions targeted at pregnant women such as poor performance reviews and involuntary transfers to more strenuous positions.

EEOC guidance should make clear that a hostile work environment based on pregnancy constitutes unlawful sex discrimination, and that employers must take reasonable steps to prevent and correct harassing conduct.

In California, Broader Employment Protections Have Enabled Countless Workers to Stay Employed While Maintaining Healthy Pregnancies and Caring for Their Families.

California has long provided expansive employment protections for pregnant women, new parents, and caregivers. Since its enactment in 1978, California's Pregnancy Disability Leave law has required covered employers to provide women with up to four months of unpaid job-protected leave while they are disabled by pregnancy, childbirth or a related medical condition. The Supreme Court upheld this law against a claim that it was preempted by the Pregnancy Discrimination Act in Cal. Fed. Savings & Loan Ass'n v. Guerra, 479 U.S. 272 (1987).9

In addition to granting women the right to take leave to have a baby without risking their jobs, California's law also prohibits discrimination and harassment based on pregnancy, and requires employers to provide reasonable accommodations for pregnant women such as frequent bathroom breaks and modified work duties. Importantly, California's pregnancy leave, accommodation, and anti-discrimination provisions apply to all employers with at least five employees, and apply regardless of full- or part-time status or length of service.10

Moreover, after recovering from childbirth, women covered by the California Family Rights Act are entitled to take an additional 12 weeks of job-protected time off to bond with their baby.11 Finally, when women return to work, California law mandates lactation accommodations for women to express breast milk.12

California also is one of the few states with a State Disability Insurance program allowing women who are unable to work because of pregnancy- or childbirth-related disabilities to receive partial wage replacement during their leave. And it was the first state in the country to enact a comprehensive Paid Family Leave law, which provides 6 weeks of partial wage replacement to workers on leave to bond with a new child or to care for a seriously ill family member.

These laws provide critical protections for pregnant women, new parents, and those with caregiving responsibilities, enabling them to maintain their livelihoods while caring for themselves and their families.

Many of these protections have been in place for decades, and have been shown to be beneficial to both employers and employees. Indeed, by invoking these laws, workers are often able to preserve their jobs while avoiding the need for litigation at a vulnerable and stressful time in their lives. Meanwhile, employers benefit as well by retaining productive, loyal employees and reducing turnover costs. See, e.g., Eileen Appelbaum and Ruth Milkman, Leaves That Pay: Employer and Worker Experiences With Paid Family Leave in California (Jan. 2011) (documenting the success of California's Paid Family Leave program and its positive effects on families and business).

Still, gaps in the law remain, and those most in need of employment protections are least likely to know their rights, hindering many workers' ability to balance work and family demands. The vast majority of working women will become pregnant while employed, and caregiving responsibilities fall disproportionately on women.13 Low-wage women in particular are most likely to need flexible work arrangements due to caregiving obligations, but are least likely to have access to workplace flexibility.14 Indeed, no federal or state law provides the right to reasonable accommodations for caregivers. Those who do not meet the FMLA's restrictive eligibility requirements have no job protection when they need to care for a seriously ill relative. Further, the FMLA has an overly narrow definition of family, covering only parents, minor children, and spouses. Thus, workers cannot take time to care for other close family members, even if they are the only caregiver available.

Conclusion

Protections against pregnancy and caregiver discrimination—including entitlements to leave and accommodations—are essential for the health and well-being of women and their families. These protections are also critically important for workers' economic security. We commend the EEOC for drawing attention to unlawful pregnancy and caregiver discrimination, and for educating employers and employees about the protections afforded by the PDA, Title VII and the ADA.

Thank you for the opportunity to testify today.

Footnotes

1 The Pregnancy Discrimination Act: Where We Stand 30 Years Later (Nat'l Partnership for Women & Families 2008).

2 See Job Accommodation Network, "Accommodation Ideas for Pregnancy," available at https://askjan.org/articles/Getting-Over-the-Bump-Pregnancy-at-Work.cfm.

3 Naomi Gerstel & Amy Armenia, Giving and Taking Family Leaves: Right or Privilege?, 21 Yale J.L. & Feminism 102 (2009).

4 Id.; Ann O'Leary, How Family Leave Laws Left Out Low-Income Workers, 28 Berkeley J. Empl. & Lab. L. 1 (2007).

5 U.S. Bureau of Labor Statistics, "Employee Benefits in the United States – March 2011," available at http://www.bls.gov/ncs/ebs/sp/ebnr0017.txt.

6 See, e.g., UAW v. Johnson Controls, 499 U.S. 187 (1991) (striking down an employer's "fetal protection policy" that excluded women who were pregnant or capable of becoming pregnant from jobs involving exposure to lead).

7 See, e.g., Rohloff v. Metz Banking Co., LLC, 941 F. Supp. 2d 840, 852-856 (N.D. Iowa 2007) ("Different treatment of similarly-situated persons not in the plaintiff's protected class-here, non-pregnant persons-is one kind of evidence that may generate an inference of discrimination, but it is not the only kind of evidence that does so.").

8 Several courts held that the comparator under the PDA must be someone who was injured off the job. See, e.g., Spivey v. Beverly Enters., 196 F.3d 1309, 1313 (11th Cir. 1999) ("*A+n employer does not violate the PDA when it offers modified duty solely to employees who are injured on the job and not to employees who suffer from non-occupational injury. Of course, pregnant employees must be treated the same as every other employee with a non-occupational injury."). Other courts, however, have recognized that the PDA itself expressly provides that the appropriate comparison is to those "similar in their ability or inability to work," regardless of whether the disability was workplace-related. See, e.g., Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996).

9 See generally Patricia A. Shiu & Stephanie M. Wildman, Pregnancy Discrimination and Social Change: Evolving Consciousness About a Worker's Right to Job-Protected Paid Leave, 21 Yale J. L. & Feminism 119 (2009).

10 As of 2012, employers also must continue health insurance benefits for women on pregnancy disability leave. Cal. SB 299 (2011).

11 The CFRA also entitles eligible fathers and same-sex partners to take 12 weeks of bonding leave. Cal. Gov't Code § 12945.2.

12 See Cal. Labor Code § 1030. A federal law requiring reasonable break time for nursing mothers was enacted in 2010. See 29 U.S.C. § 207(a)(7)(r)(1).

13 Melissa Alpert & Alexandria Cawthorne, Labor Pains: Improving Employment and Income Security for Pregnant Women and New Mothers (Center for American Progress 2009).

14 See id.; Stephanie Bornstein, Poor, Pregnant and Fired: Caregiver Discrimination Against Low-Wage Workers (UC Hastings Center for WorkLife Law 2011), at pp. 5-7.