Outten & Golden: Empowering Employees in the Workplace

Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers

April 1st, 2011 | Stephanie Bornstein

bornstein_stephanieNew report documents how low-wage workers are discriminated against at work based on their caregiving responsibilities at home

A new report by U.C. Hastings’ Center for WorkLife Law details the extreme measures to which low-wage workers must go to keep a job and care for their children or elderly family members—and the sometimes shocking discrimination they face at work despite these efforts.

The first of its kind to analyze caregiver discrimination lawsuits filed by low-wage workers, the report—Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers—exposes mistreatment at work around caregiving responsibilities.  The powerful cases profiled in the report, which attracted the attention of the National Law Journal, include:

  • employees encouraged to get abortions or asked about their birth control usage, or sexually harassed because of their roles as caregivers;
  • pregnant workers fired on the spot or immediately after announcing their pregnancies, or banned from certain positions no matter what their individual capabilities;
  • workers routinely denied access to their legal rights, especially to family and medical leave;
  • employees being set up to fail, with unreasonable goals or tasks assigned to them, after caregiving responsibilities are discovered;
  • low-wage men who care for children or elderly parents subjected to extreme gender stereotyping at work; and
  • pregnant women of color denied access to accommodations regularly granted to their pregnant co-workers of a different race.

Even in family emergencies, the report shows, low-wage workers are refused the small kinds of workplace flexibility that are commonplace for middle-wage and professional workers.  One retail worker whose case is profiled in the report was fired for insubordination for carrying a water bottle at work—despite a doctor’s note recommending she do so to treat recurring urinary and bladder infections due to her pregnancy.

Ironically, small changes by employers can make a significant difference in keeping experienced employees in their jobs.  They can also prevent costly liability: several lawsuits profiled resulted in large verdicts, including four with recoveries of between $2.3 and $11.65 million, despite the plaintiffs’ (a housekeeper, a shipping dispatcher, a bakery delivery driver, and a hospital maintenance worker) low wages.

“Caregiver discrimination lawsuits brought by low-wage workers document clearly that work-family conflict is not just a professional women’s problem.  In fact, it’s most acute and extreme for low-income families,” said study author Stephanie Bornstein, Deputy Director of the Center for WorkLife Law.  “To help families move out of poverty, we can’t just focus on ‘fixing’ the worker.  We also need to look at how caregiver discrimination in low-wage jobs undercuts economic stability.  Discrimination not only hurts workers and their families; it leads to high turnover and legal liability for employers.”

Another case profiled in the report is that of a pregnant woman who was forced out of her retail sector job onto unpaid leave despite her desire to work as long as possible while pregnant.  Her supervisor had allowed her perform all of her job tasks while avoiding heavy lifting, and she was working successfully.  Yet several weeks later, when her doctor sent a letter to the company’s HR office to cement this arrangement, she was immediately sent home and told that she could not be accommodated—in violation of California law.

A soon-to-be single mother, the woman was “trying to do the best she could for her baby,” and was confused as to why she was being sent home when she wanted to work, said Jamie Dolkas, Staff Attorney at Equal Rights Advocates in San Francisco, who represents the woman.  “As a low-wage worker, she was really disenfranchised….[T]hey didn’t take the time to explain to her what her rights or options were—they just gave her something in writing that essentially said we can’t accommodate you, go home,” explained Dolkas.

The report profiles 50 cases—selected from among hundreds identified by Center for WorkLife Law research—of low-wage workers who experienced discrimination at work based on their efforts to be both a good worker and a good parent or family member.

The Center for WorkLife Law is a nonprofit research and advocacy organization that works with employees, employers, attorneys, unions, and policymakers to fuel social and organizational change around work-life issues.  The Center is part of the University of California, Hastings College of the Law in San Francisco.

About the Author: Stephanie Bornstein is an employment attorney and Deputy Director of WLL. Prior to joining WLL, she worked as a staff attorney at Equal Rights Advocates (ERA), a public interest law center focused on gender discrimination in employment and education. At ERA, Bornstein represented plaintiffs in individual and class action employment matters, specializing in pregnancy discrimination and family and medical leave. She was also among a small group of advocates to help author and enact California’s Paid Family Leave insurance program, the nation’s first comprehensive paid leave law. In addition, Bornstein worked as a legal editor of employment law products at Nolo Press, a leading publisher of legal books for non-lawyers.

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