By Paul Muschick
The Morning Call (Allentown, Pa.)
I initially didn’t pay much attention to the recent announcement that a Berks County trucking company had discriminated against an employee because she was pregnant.
I found it sad but considered it an anomaly. I hadn’t seen other recent examples. Surely most businesses today know they can’t treat a pregnant worker differently from any other worker, I thought.
Then that same day, the state Human Relations Commission ruled two other businesses, one in Lehigh County and the other near Lansdale, had discriminated against pregnant workers, too.
This is the 21st century — how can this still be happening?
While those three cases announced Feb. 26 were the first time in more than five years that the state publicly ordered a business to compensate a pregnant worker for discrimination, they show that despite the milestones in women’s rights, pregnant women still encounter discrimination.
Surprisingly, federal authorities receive thousands of complaints annually about pregnancy discrimination and the state receives dozens. The public just doesn’t hear about them because many are settled confidentially, and the investigations are confidential as well.
“People do assume that times have changed and that people behave well,” said Shannon Powers, spokeswoman for the Human Relations Commission. “That’s simply not the experience of a lot of people in the workplace.”
Just last week, a Virginia business agreed to pay $20,000 to settle a lawsuit filed by the Equal Employment Opportunity Commission on behalf of a woman who was offered a job, then the business rescinded the offer after learning she had recently given birth and had surgery related to her pregnancy.
“No woman should be denied a job because of her pregnancy or because she recently gave birth,” Debra Lawrence, an attorney at the EEOC’s office in Philadelphia, said in a statement on that case.
The EEOC received 4,029 pregnancy discrimination complaints in fiscal year 2010 and 3,400 in fiscal year 2014. The state Human Relations Commission received 201 complaints in fiscal year 1999-2000 and 48 complaints in fiscal year 2013-14.
While you might consider that to mean employers finally are getting the message, that might not be the case, Powers said.
With its staff reduced in recent years, the Human Relations Commission hasn’t been doing as much outreach as it used to, Powers said. So there may be women out there who have experienced discrimination but just don’t know where to turn.
Powers said employment discrimination complaints also decrease in economic downturns, then increase as people are more confident of their job options.
The law is clear regarding pregnant workers, Powers said. Employers can only take into account a woman’s ability to get the job done.
They can’t decide whether the job is too risky. It’s up to the worker to decide that for herself.
“It’s just a 1950s and ’60s mentality that these women are fragile objects when they are pregnant and they need to be protected,” Powers said.
Whether a job was too dangerous for a pregnant employee was an issue in the recently decided case involving a business in Lehigh County.
Katelyn Romig of Orefield alleged she was fired from her job at Auntie Anne’s Pretzels in the Walmart in Trexlertown in 2010 because she was pregnant.
The state Human Relations Commission upheld her complaint and ordered JSM Business Services of Upper Macungie Township, identified in commission records as a payroll company that hired Romig to work at Auntie Anne’s, to pay Romig $5,636 in lost wages, interest and expenses.
My phone call to Auntie Anne’s was not returned.
Commission records say Romig was pregnant when she was hired but did not disclose that despite signing a safety orientation form that said she would tell the manager “if I am pregnant or unable to perform my duties for any reason, so appropriate safety steps can be put in place to prevent accidents.”
Romig did not disclose her pregnancy because she didn’t believe she had to and because she feared not being hired if she did, commission records say. I was unable to reach Romig.
Commission Hearing Examiner Carl Summerson ruled that requiring an employee to agree to reveal during an application process that she is pregnant violated state law.
“In effect, JSM’s security form statement is simply an unlawful protectionist hurdle that ultimately would act to prevent a qualified woman from performing jobs of their choice even if the job poses some form of increased risk,” Summerson wrote in his opinion.
He wrote there was no evidence Romig could not perform any duties associated with her job, and that Romig had testified that after a few days at work, she had been told she was performing well.
In its written response to the complaint, JSM said Romig “was terminated for dishonesty.”
“She was terminated for having lied to the employer at the time she was hired, in concealing her physical condition, which could have placed her and the employer at risk of serious physical and/or financial injury and harm,” JSM’s response says.
The state wasn’t able to provide me with a breakdown of how the complaints it received last year were resolved. Not every complaint is upheld and not every accuser is compensated. The state settles about 40 percent of cases, which include other types of discrimination, Powers said.
At the federal level, the EEOC closed 3,221 pregnancy discrimination cases in fiscal year 2014 through settlements or other means.
About 23 percent of them were in favor of the accusers and the agency made employers pay out about $14 million in benefits to them.
In more than half of the cases, 59 percent, there was no finding of discrimination. Another 18 percent were closed for administrative reasons such as the accusers withdrawing the complaint, failing to cooperate or refusing to accept the relief offered.
Congress passed the Pregnancy Discrimination Act in 1978. It requires pregnant women to be treated the same as other workers or job applicants with comparable skills.
A business that allows temporarily disabled employees to take disability leave or offers them light duty assignments must offer the same accommodations to employees who are disabled due to pregnancy. Employers must hold a job open for a pregnancy-related absence for the same length of time jobs are held open for workers on sick or temporary disability leave.
Employers can’t refuse to hire women because they are pregnant as long as they can perform the major functions of the job. The law prohibits discrimination against pregnant women in pay and fringe benefits, job assignments, training, promotions, layoffs and firings.
Laws eventually can change attitudes, but they take a while to sink in, said Kathy Black, vice president for finance at the Philadelphia chapter of the National Organization for Women.
“That is what changes people’s behavior, when they are obligated to behave differently,” she told me. “It takes generations for that to happen.”
Black said women’s rights organizations are lobbying for other laws, too, including one that would require employers to make accommodations for pregnant workers as they do for disabled workers. That would address issues such as allowing pregnant women to keep water handy, take additional restroom breaks, or have a stool to sit on if they’re working at a counter.
Those are common-sense accommodations, but unfortunately they must be legislated, she said: “It’s very sad that we have to still push for these things and have to deal with this kind of discrimination.”
The Pennsylvania Human Relations Commission investigates complaints about pregnancy discrimination under the state’s Human Relations Act, which was passed in 1955. Pregnancy discrimination cases can be investigated under a 1969 amendment to that act that prohibits discrimination based on sex, or a 1974 amendment that prohibits discrimination based on disability.
The Human Relations Commission adopted the opinion in Romig’s case Feb. 23. That day, it also issued orders in the Berks and Montgomery county cases.