Pregnancy Discrimination Continues To Vex Working Women

By L.M. Sixel
Houston Chronicle.

The satirical portrayal of sexual harassment and discrimination in the 1980 movie “9 to 5” seems almost quaint today.

Times have changed in the workplace since then. Pretty much everyone knows not to call women “babe” in the office, and unwelcome sexual advances get people fired.

But there is one form of discrimination that seems to persist no matter how much it’s debated at the U.S. Supreme Court or featured in the movies. Pregnancy discrimination continues to vex working women.

Jim Sacher, regional attorney for the U.S. Equal Employment Opportunity Commission, said the agency gets so many complaints that he could easily spend every day just on pregnancy-related issues. Some employers continue to believe they can fire women who become pregnant, he said.

One typical justification he hears is that pregnant employees will have to make regular visits to the doctor that keep them away from their jobs.

Another concern, Sacher said, is that pregnancy will foster more gossip around the office, especially if an employee believes she is getting fewer hours or poorer assignments because of her pregnancy. That, in turn, worries business owners that the talk around the water cooler will turn to wages.

“Loads of employers believe it’s legal to fire employees for discussing or comparing wages,” said Sacher, pointing out that the National Labor Relations Act prohibits such terminations.

When problems flare up, it’s usually at a small employer, said Ed Sullivan, an employment lawyer with Oberti Sullivan who represents both employees and employers. Smaller firms operate close to the bone and don’t have much of a cushion when someone is missing.

They often argue that they need a pregnant employee to stay on the job, he said, or that she put family wishes above the needs of the company.

Sullivan said such claims are rare at larger companies, and usually involve a “rogue” manager or unit.

Large companies rely on medical notes from doctors, he said, and know better than to try and set their own rules limiting jobs pregnant women can perform — which would violate federal law.

But the cases persist. EEOC data show that it received 3,541 pregnancy discrimination complaints in 2013, down slightly from 3,745 the year before.

Last week, the commission sued a Katy-area franchisee of Shipley’s Do-Nuts, alleging it required an employee suspected of being pregnant to take unpaid leave until she could obtain a medical clearance.

D & S Shipley Donuts refused to allow its cashier to continue to work until she received a note that her pregnancy was not “high risk,” according to the federal court lawsuit. The EEOC alleges that the employee and her mother disputed the legality of the requirement and that the franchise owner fired the employee in retaliation.

“We haven’t seen the lawsuit yet,” said Houston lawyer Lauren Serper, who is representing D & S Shipley Donuts. But based on her conversations with her client, Serper said, the cashier was terminated because she didn’t report for work.

The company has a strict anti-discrimination policy, said Serper, and has had many pregnant employees who continued to work throughout their pregnancies and returned to work after giving birth.

The EEOC resolves most complaints with confidential settlements, and cases never go to trial.

In 2013, it collected $17 million in damages on behalf of women who filed pregnancy discrimination claims, compared to $14.3 million during the previous year. The totals do not include damages obtained through lawsuits.

The agency has negotiated some big-dollar settlements in Houston recently, said Sacher, who is bound by confidentiality rules not to reveal the companies, amounts or complaints. But the payouts are attracting attention from private lawyers who, in the past, have been less interested in pregnancy claims because of damage caps and a limited number of affected employees.

From his experience, Sullivan finds that many women don’t want to file a lawsuit. Sometimes they want to confirm that their rights have been violated, then decide not to pursue a claim.

But if they get in front of a jury? Pregnancy discrimination is one of those types of cases — along with age discrimination and retaliation -in which juries are predisposed to believe the employee, said Sullivan.

Jurors can imagine it happening, much like they’ve seen their parents suffer from age discrimination or know first-hand what happens when someone gets angry and strikes back in retaliation.

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