Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘pregnancy discrimination’

At CBS, Les Moonves got away with ‘transactional’ sex. A working mom couldn’t get a schedule change.

Wednesday, December 5th, 2018

At CBS News, she asked for a role that would give her “some small measure of predictability” over her schedule so she could work while parenting a young son. From his corner office atop CBS, he was demanding that a different female employee be “on call” to perform oral sex.

She left her job. He made $69.3 million.

It’s a tale of two professional tracks at CBS: Of Julianna Goldman, a working mother trying — and ultimately failing — to adjust her workplace responsibilities so she could continue to do her job as her home life evolved, and of Les Moonves, the CEO and chairman whose reportedly rampant sexual violence was the centerpiece of a noxious, misogynistic network over which he reigned for decades.

On Wednesday, the New York Times published a report on Moonves’ obstruction of an investigation into his sexual misconduct at CBS. That obstruction may cut the strings on the golden parachute on which Moonves surely thought he’d gently float into an early retirement — which is a little like getting Al Capone for tax evasion, considering the gravity of Moonves’ alleged violence.

The Times report also included many new sickening details about Moonves’ “transactional” sexual relations with his female underlings:

“The outside lawyers were told by multiple people that CBS had an employee “who was ‘on call’ to perform oral sex” on Mr. Moonves. According to the draft report: “A number of employees were aware of this and believed that the woman was protected from discipline or termination as a result of it.”

[…]

The report found that, in addition to consensual relationships and affairs, “Moonves received oral sex from at least 4 CBS employees under circumstances that sound transactional and improper to the extent that there was no hint of any relationship, romance, or reciprocity.”

The report said that the lawyers weren’t able to speak with any of those women, but that “such a pattern arguably constitutes willful misfeasance and violation of the company’s sexual harassment policy.”

The Times piece comes a few months after Ronan Farrow first reported that Moonves had been accused by six women of sexual harassment and intimidation, while “dozens more” detailed abuse throughout the company Moonves ran. Further reporting revealed Moonves’ methodical destruction of female-driven shows. Thorough investigations into credible allegations brought to light the abuses of longtime TV host Charlie Rose, NCIS showrunner Brad Kern, senior vice president of talent for CBS Television Studios Vincent “Vinnie” Favale. A phalanx of sexist, abusive men flourished while women suffered, under Moonves’ eye.

Tuesday, Julianna Goldman wrote about her experience with CBS News for The Atlantic. She was a general-assignment correspondent with 15 years of experience who was essentially given a no-choice choice between a job that was obviously incompatible with parenting (last-minute travel for breaking news) and no job at all. She asked for a position with more predictability; she was told the offer on the table was “final.” She left and later realized she “was not alone”:

According to a report by the Women’s Media Center, television viewers are less likely to see women reporting the news today than just a few years ago. At the Big Three networks—ABC, CBS, and NBC—combined, men were responsible for reporting 75 percent of the evening news broadcasts over three months in 2016, while women were responsible for reporting only 25 percent—a drop from 32 percent two years earlier.

It was “anti-mom” bias, in all its insidious manifestations: Assumptions made about a woman’s dedication and competence (meanwhile, men earn a “fatherhood premium” for every child they have); the fear of getting edged out while taking maternity leave and daring to be off-camera for all of three months; the exacting expectations for a woman’s appearance on television that make no allowances for a pregnant or postpartum body.

As Goldman argues, all citizens suffer when women and mothers are sidelined from the work they do so well. It is impossible to report the news fully, accurately, and with empathy, without without diversity of experience and insight on the part of those who report it. And of course the workplace discrimination she documents against pregnant women and mothers is appalling, all the more so forbeing so commonplace.

But there is something especially gross about seeing these two experiences — Goldman’s and Moonves’ — side by side.

What does it say about CBS, as an institution, that higher-ups decided it was simply unfathomable to meet Goldman’s minimal requests but that it was absolutely paramount to ensure Moonves every sexual whim be met on demand? What does it say about the board, that at least one of its members knew about an assault allegation against Moonves from 1999 and, rather than do anything meaningful with that information whatsoever, just… told no one, and did nothing, and stood up for Moonves even as more and more credible allegations came out?

Dr. Anne Peters says Moonves assaulted her in 1999. As she told CBS lawyers, she warned Arnold Kopelson, an Oscar-winning producer who was about to join the board, about Moonves. As Peters remembers it, Kopelson’s response was “that the incident happened a long time ago and was trivial, and said, in effect, ‘we all did that.’”

Kopelson joined the board in 2007 and, at a board meeting following the publication of Farrow’s investigation, kept on defending Moonves. “I don’t care if 30 more women come forward and allege this kind of stuff,” he said. “Les is our leader and it wouldn’t change my opinion of him.” (Kopelson died in October.)

How telling, that at CBS, it’s easier to make an office work for Moonves — and Rose, and Kern, and on, and on — than to make it work for a mother. That someone like Kopelson could say, of Moonves’ alleged criminal misconduct, “we all did that,” but that no one can look at working parents and say, “we all do that.”

This article was published at ThinkProgress on December 5, 2018. Reprinted with permission.

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

Walmart sued for alleged discrimination against pregnant workers

Monday, September 24th, 2018

Federal regulators have filed a lawsuit against Walmart claiming the retailer forced pregnant workers to take unpaid leave and refused their requests for less physically demanding duties.

Companies are required by law to accommodate employee pregnancies the same way they would disabilities, according to an article on the lawsuit published by Reuters. The suit was filed Friday on behalf of Alyssa Gilliam and several other female employees.

In her complaint, Gilliam said she became pregnant in April 2015, at which point she requested “light duty or transfer to a less physically demanding job” to avoid any heavy lifting that might endanger her pregnancy. She said she was told “light duty” was only available “to employees on workers’ compensation.”

Gilliam claimed her requests for a chair, shorter work days, or additional breaks were also denied. She said that eventually, she was forced to transfer to a part-time job within the company, resulting in a pay cut and loss of benefits.

In November 2015, Gilliam said she submitted a doctor’s note to the company identifying a five pound lifting restriction. Walmart, in response, immediately placed her on unpaid FMLA (parental) leave, two full months before she was due to deliver.

The company allegedly denied requests for accommodations for other pregnancy-related medical restrictions made by other pregnant employees at the distribution center, the suit argues.

By contrast, Walmart “accommodated non-pregnant employees who were similar in their ability or inability to work.”

“For example, Defendant accommodated [distribution center] employees who had restrictions due to work-related injuries by providing them with light duty,” the suit reads.

“Defendant deprived Gilliam and a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their sex and pregnancy.”

Julianne Bowman, the EEOC’s district director in Chicago, said in a statement Friday that Walmart’s alleged refusal to accommodate the pregnant workers amounted to a violation of federal law.

“What our investigation indicated is that Walmart had a robust light duty program that allowed workers with lifting restrictions to be accommodated,” she said. “But Walmart deprived pregnant workers of the opportunity to participate in its light duty program. This amounted to pregnancy discrimination, which violates federal law.”

The EEOC said it is seeking “full relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Walmart’s practices going forward.”

In a statement Friday, Walmart spokesperson Randy Hargrove responded to the suit, saying the company’s anti-discrimination policies were in full compliance with the law.

“Our accommodations policy has been updated a number of times over the last several years and our policies have always fully met or exceeded both state and federal law,” he said.

The nation’s largest private employer, Walmart is reportedly facing similar lawsuits in other states, including Illinois and New York. In May last year, Hargrove issued a statement insisting the company was “a great place for women to work.”

According to Reuters, the company requested to have the Illinois suit tossed out earlier this year, but was denied. The New York suit is currently pending.

This article was originally published at ThinkProgress on September 22, 2018. Reprinted with permission. 

About the Author: Melanie Schmitz is an editor at ThinkProgress. She formerly worked at Bustle and Romper. Send her tips here: mschmitz@thinkprogress.org.

Investment Bank Allegedly Retaliated Against Employee After She Announced Her Pregnancy

Friday, August 19th, 2016

Bryce CovertAfter working at the investment bank Jefferies Group for nearly 12 years, Shabari Nayak thought she was on track to become a managing director — especially after bringing her firm $3.75 million in revenue.

But then last year she got pregnant. In a lawsuit filed against the bank on Wednesday, she says everything changed after she announced that she would be having a baby.

Nayak “delayed announcing her pregnancy as late as possible because she feared her career would be derailed,” according to her lawyer Scott Grubin.

Her fears were quickly realized, she alleges. She claims that when she told her direct supervisor of the pregnancy in August of last year, he told her that her “priorities would be changing” after she had her child and offered to help her find a job that was “less demanding,” potentially in the human resources department. She declined, preferring to stay on track for a managing director position.

She got a nearly identical response, she says, when she told the global head of her division. “These two utterly insensitive and demeaning conversations made clear that in the minds of management, Ms. Nayak’s pregnancy had irreversibly changed — if not ended — her investment banking career at the bank,” according to the complaint.

Months later, her supervisors told her she had “taken her foot off the gas pedal,” she claims. Then she says she was denied her year-end bonus, which reduced her overall compensation by nearly 60 percent. Yet she had gotten the bonus the year before when she brought in nearly $1 million less in revenue, while a similar male coworker in her group who hadn’t generated any deal revenue got a “substantial” bonus, according to the complaint.

“What should have been a most joyous time in her life, as Ms. Nayak welcomed her first child into her family, has been transformed into a demeaning and anxious ordeal by the bank’s discriminatory and retaliatory actions against her that has effectively derailed her personal and professional aspirations,” the complaint says.

Nayak no longer works at the bank, claiming that she was forced to resign while on maternity leave after experiencing the discrimination and watching her complaints go unaddressed.

“No reasonable person should be or could be expected to work in the environment created and fostered at Jefferies,” she said.

Now that she’s gone, she says her group at the investment bank has 32 men and no women in senior vice president or managing director positions.

A Jefferies spokesman said the lawsuit is “entirely without merit,” saying she “voluntarily resigned,” and that it will defend against it.

Pregnancy discrimination is already prohibited by federal law, but it’s still incredibly common. Complaints of pregnancy discrimination filed with the Equal Employment Opportunity Commission rose 65 percent between 1992 and 2007, outpacing the increase of women in the labor force, and there were more than 3,500 filed just last year.

A number of investment banks have been hit with discrimination lawsuits that depict a male-dominated and testosterone-fueled culture, and pregnancy discrimination comes up a lot. The finance industry was hit with 97 complaints of pregnancy discrimination in 2013. A lawsuit last year filed by Cynthia Terrana against investment bank Cantor Fitzgerald alleged that she was fired just 11 days after she told her manager she was pregnant.

Other lawsuits against Wall Street firms have alleged a “boys club” atmosphere of trips to strip clubs and sexual assaults against female employees that went ignored, the systemic undermining of women’s careers by denying them the most lucrative clients, and repeated sexual harassment that included female employees being pressured to sleep with executives.

This article was originally posted at Thinkprogress.org on August 19, 2016. Reprinted with permission.

Bryce Covert  is the Economic Policy Editor for ThinkProgress. Her writing has appeared in the New York Times, The New York Daily News, New York Magazine, Slate, The New Republic, and others. She has appeared on ABC, CBS, MSNBC, and other outlets.

Nonprofit Ordered To Pay $75,000 Over ‘No Pregnancy In The Workplace’ Policy

Monday, June 1st, 2015

Bryce CovertUnited Bible Fellowship Ministries, Inc., which provides housing and care to people with disabilities, will have to pay a former employee $75,000 for firing her after she became pregnant to settle a lawsuit brought by the Equal Employment Opportunity Commission (EEOC).

The organization has had a “no pregnancy in the workplace” policy in place that meant it fired anyone who became pregnant and refused to hire anyone applying for a position while pregnant. It admitted that the former employee, Sharmira Johnson, performed her job as a resource technician providing care to residents well and didn’t have any medical restrictions that would keep her from carrying out her duties. Yet it fired her, arguing it was justifiable in order to ensure her safety, that of her unborn baby, and the safety of its clients.

That argument didn’t hold up in court. U.S. District Court Judge Vanessa D. Gilmore found that United Bible “recklessly” failed to comply with Title VII of the Civil Rights Act, which prohibits employment discrimination based on sex, race, religion, and other characteristics, by having the anti-pregnancy policy. The organization also has a contract with the Texas government, which requires it to comply with anti-discrimination laws. The court held that it failed to show that all pregnant women are unable to perform their duties safely. The judge awarded Johnson about $25,000 in back pay and overtime plus interest, as well as $50,000 in damages for emotional and mental suffering.

 

“This decision is another in a long line of federal court cases rejecting employer policies based on assumptions and stereotypes about a pregnant woman’s inability to work,” said Claudia Molina-Antanaitis, the EEOC attorney in charge of the case, in a press release. “Employers cannot impose paternalistic and unsubstantiated views on the alleged dangers of pregnancy to exclude all pregnant women from employment.” United Bible didn’t respond to a request for comment.

While federal law should already prevent workplace discrimination against pregnant women, it is still pretty widespread.

Some of it is a good deal more subtle than United Bible’s blatant “no pregnancy” policy. An estimated quarter million pregnant women are told each year that they can’t have small changes like switching to lighter duty or getting a stool to sit on so that they can keep working at their jobs safely. That means many are either forced onto unpaid leave before their babies are born or simply fired. Others stick it out and risk health complications, including miscarriage.

 

But many women have claimed that they were fired almost immediately after telling their employers that they had become pregnant. These companies don’t have as explicit policies as United Bible’s, but the effect is the same. A survey of decades of cases like these shows that employers frequently rely on stereotypes about pregnant women, like the idea that they simply won’t return to work after they have their babies, and vilify them to justify firing them.

Yet it has become more and more common for pregnant women to remain in the workplace before and after they give birth. The share of first-time mothers who work during their pregnancies has increased from less than half in 1960 to two-thirds today, while 80 percent work into the last month. On the other end, nearly 60 percent of women are back at work six months after they give birth and more than 70 percent of women with young children are in the workforce.

Given the discrimination pregnant employees still face at work, some states have gone above federal law to enact stricter requirements. Forty-five have protections against pregnancy discrimination, while 14 and Washington, D.C. have laws requiring employers to give pregnant employees reasonable accommodations so they can keep working. A federal law has been introduced multiple times to require all of the country’s employers to give pregnant workers those accommodations, but it hasn’t gained traction.

This blog was originally posted on Think Progress on May 29, 2015. Reprinted with permission.

About the Author: The author’s name is Bryce Covert. Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.

Woman Says Employer Forced Her To Take Unpaid Leave While Pregnant

Tuesday, January 27th, 2015

Bryce CovertWhile Jamie Cole’s doctor was monitoring her pregnancy because she had suffered preeclampsia with a previous one, she was still healthy. Her doctor simply told her to continue working as normal, just without heavy lifting. “The only restriction I had was lifting,” she told ThinkProgress. Given that the Sava Senior Care’s Brian Center nursing home in Weaverville, North Carolina where Cole worked is a no-lift facility that uses machines to get patients out of and back into bed, plus other workers who were put on light duty for other reasons were accommodated, she assumed she could continue with her plan to work up until she delivered her baby.

But she apparently assumed wrong. “The director told me that I couldn’t work with any restrictions,” she said. “They told me that the only way they could allow me to work would be if I had my work restrictions lifted or if I just got rid of the doctor’s note… I told her I wasn’t going to do that.” But even after her doctor changed her note to say she could do lifting so long as it wasn’t more than 35 pounds, she says the directors still refused to let her work.

Her plan was to use saved up vacation and sick time to take a eight weeks paid off after the birth of her child. Instead, she says she was forced onto unpaid leave much earlier than she wanted. And if she didn’t sign the papers to go out on unpaid Family and Medical Leave Act (FMLA) leave, she says she was told they couldn’t promise her job would be there for her when she came back. “It scared me,” she said. “I had two kids at home and was getting ready to bring a third one in.”

“I couldn’t understand why they were doing it to me,” she said. “I needed that job. I loved my job. I was really hurt.”

All told, she spent five and a half weeks on unpaid leave. She was allowed back to work for a week even with lifting restrictions after lawyers from the American Civil Liberties Union talked to the company on her behalf, which she managed with the use of the mechanical lift and help from coworkers, but then her doctor put her on full leave because she started to experience pain. “I had to drain my savings account and checking account,” she said of her unpaid leave. “It put me more behind on everything when I could have been working that five and a half weeks.”

So she’s taken legal action, filing a complaint with the Equal Employment Opportunity Commission (EEOC) that seeks compensation for the missed wages, legal fees, and economic and emotional damages. The Sava Senior Care Brian Center Health & Rehabilitation in Weaverville did not respond to a request for comment.

She has since resigned from her job with Sava and found one at a different facility. “I was already stressed and didn’t want to put myself back into that,” she said. She says her family is starting to catch back up financially but that some of the effects linger. Her baby, who is now six months old, still sleeps in her room. “He has his own room,” she said. “But everything that I had saved up to do the baby’s room I had to put toward bills and stuff like that.” She also ended up having to return to work earlier than she wanted, making for a rough transition back.

Beyond seeking compensation, “I would like to see them change their policies,” she said. “I’m not going to be the last woman to ever work for Sava that was pregnant.”

She’s also not likely to be the last woman to go through such an experience. An estimated quarter million women have their requests for a simple accommodation so they can keep working — such as light duty, the ability to sit, or more frequent bathroom breaks — denied each year. Yet 80 percent of first-time mothers work into their last month of pregnancy.

Women are increasingly taking legal action. Complaints like Cole’s rose 65 percent between 1992 and 2007, while nearly 6,00 were filed in 2011. The Supreme Court has heard a case against the United Parcel Service from Peggy Young, who says she was denied light duty while pregnant even though it’s given to workers for other reasons. Multiple complaints have been brought against Walmart for refusing to give pregnant workers job duty changes. Home decorating store Pier 1 is being sued by a woman who says she was forced onto unpaid leave and a grocery store is being sued by a woman who says she lost her baby after she was denied light duty.

Pregnant women also face other forms of discrimination. Employers often rely on stereotypes to fire them, such as the idea that they won’t return to work after they have their babies even though nearly 60 percent go back to work within six months of giving birth. A different nursing home is being sued by a woman who says she was fired hours after she disclosed her pregnancy, while a doughnut shop is being sued by a woman who says she was unjustly fired while on maternity leave. The Department of Justice is even suing the Chicago Board of Education for firing pregnant teachers.

This article originally appeared in thinkprogress.org on January 27, 2015. Reprinted with permission.

About the Author: Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media

Rally Urges Court to End Pregnancy Discrimination

Tuesday, December 9th, 2014

Image: Mike Hall

No one should have to choose between their job and the health of their pregnancy. Peggy Young was forced to do just that in 2006 when she became pregnant and her employer, UPS, refused to accommodate her with light duty as her doctor recommended. She was forced to take unpaid leave and go without her employer-provided health coverage.

On Wednesday, the U.S. Supreme Court heard her case claiming UPS violated the Pregnancy Discrimination Act of 1978. Outside, about 200 of her supporters from women’s groups across the political spectrum rallied in her support.

Moms Rising Executive Director Kristen Rowe-Finkbeiner says:

“Far too many employers are either ignoring or misinterpreting the Pregnancy Discrimination Act, which was expressly designed to protect pregnant workers from discrimination and promote their economic security.”

Washington Post columnist Ruth Marcus writes:

“Peggy Young’s Supreme Court case sounds like a throwback to the “Mad Men” era, when employers weren’t expected—or required—to welcome women in general and pregnant women in particular.”

Young’s story is, says Debra L. Ness, president of the National Partnership for Women and Families, “ unfortunately, not unusual, as reflected in the number of pregnancy discrimination claims filed with the U.S. Equal Employment Opportunity Commission.” She adds:

“Women make up nearly half of the U.S. workforce and are breadwinners in nearly two-thirds of families….When employers deny equal treatment to these women, they force workers like Peggy Young to make an impossible choice between jeopardizing their families’ financial security and following their doctors’ advice for a healthy pregnancy.”

This blog originally appeared I AFL-CIO.org on December 3, 2014. Reprinted with permission.http://www.aflcio.org/Blog/Political-Action-Legislation/Rally-Urges-Court-to-End-Pregnancy-Discrimination

About the author: Mike Hall  is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

A Bill to Make Employers Less Mean to Pregnant Women

Wednesday, October 3rd, 2012

Whatever our political conflicts, we can generally agree that we should treat pregnant women nicely. We don’t hesitate to help them carry their groceries or give them a seat on the bus. Yet when pregnancy comes up as a political issue, lawmakers are far more fixated on what an expecting mom’s womb is doing, rather than her hands–as she slips the check under your plate and hopes for a decent tip–or her mind–as she loses sleep wondering whether she’ll lose her job as her due date nears.

Under current law, it’s easy for bosses to mistreat pregnant women or force them off the job. Yet the men who run Congress are too busy sponsoring anti-abortion bills and slashing social programs, it seems, to protect pregnant women in the workplace. One of the many labor bills left off the congressional radar is the Pregnant Workers Fairness Act, (PWFA) which would help prevent pregnant women from being arbitrarily fired and make employers better accommodate them.

According to the National Partnership for Women and Families, the PWFA builds on existing anti-discrimination laws by extending specific protections to pregnant employees. The legislation directs employers to “make reasonable accommodations” for an employee or job applicant’s limitations stemming from “pregnancy, childbirth, or related medical conditions,” unless this would pose “undue hardship” on the business. In addition, as the New York Times’ Motherlode explains, the law would bar employers from “using a worker’s pregnancy to deny her opportunities on the job [or] force her to take an accommodation that she does not want or need.” The bill also directs the U.S. Equal Employment Opportunity Commission to set regulations for implementing these laws, including “a list of exemplary reasonable accommodations.”

It was introduced earlier this year in the House and this month in the Senate–and not surprisingly, faces pretty bleak odds for being enacted.

The bill expands on legislation passed in the 1970s that protects women from discrimination related to pregnancy. Those earlier policies have been interpreted in such a way as to let companies refuse to make reasonable adjustments for pregnant workers. Similarly, federal and state family-and-medical-leave acts protect women from discrimination related to a seeking medical care, including for pregnancy. But many expecting mothers are left unprotected by these measures; the FMLA for example covers only unpaid leave–not the paid leave time that’s essential to protect the health of workers and their families–and generally only workplaces of 50 or more employees.

The PWFA would not shield expectant women from mistreatment altogether. The “undue burden” clause may give employers some leeway, for instance, to refuse to provide accommodations in job duties or schedules for a mom-to-be. Still, the measure would press firms to make sensible modifications for pregnant workers, such as no longer lifting heavy weights.

As with many women’s rights issues, this is also a matter of economic fairness. About 60 percent of women who gave birth in a given year also worked during that time, according to recent data; many moms are primary breadwinners, too. Making workplaces more pregnancy-friendly isn’t about coddling women; it’s about putting pregnancy on par with other medical or physical challenges workers face. Sarah Crawford, director of workplace fairness at the National Partnership, noted in an email to Working In These Times:

The result for working pregnant women is that they are too often forced to quit or take unpaid leave because their employer denies them reasonable accommodations that are lawfully required for other workers with temporary disabilities.

Losing work a double-blow for pregnant women who need to prepare financially for a new member of the household. Even if they’re not outright fired, Crawford points out, “some employers force pregnant workers into unpaid leave prematurely, which means that women are forced to take a heavy financial hit just as they are about to give birth.”

Moreover, if a pregnant woman is unfairly fired, she may have trouble simply getting hired as a new mom, which some employers may see as a liability. (Not to mention affording quality child care so she can hold onto that new job).

The National Partnership also notes major health implications for women who lose a job during pregnancy, and for their babies: The stress incurred may raise “the risk of having a premature baby and/or a baby with low birth weight.” If she can earn more before having the baby, she can potentially take more time off for maternity leave–meaning more time for bonding, breastfeeding and other essential nurturing tasks for parents that our labor structure tends to ignore.

Ironically, companies themselves suffer when they arbitrarily dismiss workers for pregnancy or childbirth-related reasons, because high workforce turnover is counterproductive in the long run.

Yet many workplaces still make women bear the brunt of the cost of childbearing. So next time you graciously offer your bus seat to a pregnant woman, just think about how our politicians fail to stand up for the labor rights of those who do the work of bringing us into the world.

This blog originally appeared in Working In These Times on September 27, 2012. Reprinted with permission.

About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

Catholic Teacher Fired for Having a Baby

Thursday, February 2nd, 2012

Katherine LazarowIn one way or another, we agree to contracts with fixed terms every day: before downloading music on iTunes, buying a cell phone plan, or taking out a student loan. More and more, another area in which the terms of contracts may be non-negotiable is in the area of employment, as individuals desperate for a job agree to an employer’s conditions or risk not being hired. But what if—in addition to a set number of vacation days and an agreement not to publically disparage the employer—potential employees were also asked to commit to other, more fundamental provisions?

In fact, many employees already do.

For example: When Christa Dias of Cincinnati, Ohio, was hired as a part-time technology teacher in 2008 at Holy Family School, and in 2009 at St. Lawrence Catholic School, she had to sign employment contracts agreeing to comply with the teachings of the Roman Catholic Church.

Ms. Dias is not, herself, Catholic.

In October 2010, shortly after Ms. Dias asked for maternity leave, she was fired from both schools for breaching her employment contracts. Her violation? Well, it’s confusing.

Ms. Dias alleges that the schools first informed her she was being dismissed “for becoming pregnant outside of marriage,” but upon realizing that this might violate federal and state anti-discrimination laws, the schools quickly changed their tune. They now claim that they fired her for having undergone artificial insemination, which the Church views as a grave immoral act, and, they say, is in direct violation of her employment agreements, which require employees to “comply with and act consistently in accordance with the stated philosophy and teachings of the Roman Catholic Church,” part 1F. (According to Catechisms 2353, 2366, and 2376, premarital sex and pregnancy outside of marriage are frowned upon, but only artificial insemination is labeled “gravely immoral.”)

In response, Ms. Dias filed an employment discrimination suit against the two schools and the Archdiocese of Cincinnati in the U.S. District Court in April.

Does Ms. Dias have a case? Are these employment contracts enforceable? If a teacher can be fired for engaging in behavior that violates Catholic teachings, can she lose her job for using birth control? What if she has an abortion? How do courts balance employment discrimination laws against the First Amendment’s protection of religious freedom? Questions the press did not tackle. LASIS will.

Title VII of the Civil Rights Act of 1964 forbids employers from firing employees because of race, color, religion, sex, or national origin. In 1978, through the Pregnancy Discrimination Act, Congress amended Title VII to include pregnancy discrimination within the definition of sex discrimination; women can’t be fired solely because they’re pregnant.

To make a case of sex discrimination based on pregnancy, a woman must show that she was pregnant, she was qualified for the job, she was fired, and there is a connection between her pregnancy and the termination of her employment. If she makes her case, then the burden shifts to the employer to provide a nondiscriminatory justification for firing her, maybe because she bribed her students, fell asleep in class, or posted inappropriate comments on Facebook. You can figure out how things play out from here. If the employer can’t come up with a legitimate reason for firing the employee, she wins. But if the employer offers a legitimate reason, the employer wins . . . unless the teacher proves that the school’s explanation was merely an excuse to hide its discriminatory conduct.

If she weren’t working for religious institutions, it appears that Ms. Dias would have a clear case of sex discrimination: she was pregnant, by all accounts she performed her job well, she was fired, and there is a connection between her termination and pregnancy.

But Ms. Dias did work for religious institutions, and so we continue our way through this legal maze, and ask: When a religious institution claims that it fired an employee for a religious reason, should courts look into whether the stated reason is just a pretext to hide its discriminatory conduct? This investigation into the employer’s motivation can entangle the government in religious issues, and some courts are not so keen to engage in this inquiry. For example, in 1991 the 3rd U.S. Circuit Court of Appeals held that, under the First Amendment, a court must accept a church’s religious justification for dismissing an employee without question. Fortunately for Ms. Dias, the Sixth Circuit is more willing to explore whether an employer’s stated reason for firing its employee is genuine.

In cases when a school initially told its teacher she was being fired for certain conduct and then changed its reason to a religious one, some courts are more likely to disbelieve the school’s “on-second-thought” religious reason for dismissal. This may bode well for Ms. Dias.

In addition, the provision of Ms. Dias’ employment contract in which she agreed to follow the teachings of the Catholic Church doesn’t necessarily doom her case. Employment contracts and handbooks requiring employees to follow specific church teachings are common in religious schools, but the terms of the contracts are still subject to Title VII. A court will refuse to enforce a contract if an employee can show that it was not applied equally to men and women, in which case the court will view the policy as a ploy to engage in sex discrimination.

In a 1999 6th U.S. Circuit Court of Appeals case, the court explained that for a school to enforce its policy against premarital sex solely by observing the pregnancy of its female teachers would constitute a form of pregnancy discrimination. So Ms. Dias can win if she demonstrates that the schools only enforced this provision against women. The fact that in 2002 the Archdiocese of Cincinnati suspended, rather than fired, a teacher (who was also a priest) accused of sexual misconduct with two male students might weigh in her favor. We think it’s safe to wager that this kind of behavior went against church teachings and would have been prohibited under his employment contract.

Now let’s take things a step or two further. Could an employer of a religious institution regulate whether an employee uses birth control? Has an abortion?

Unlike premarital sex or artificial insemination, which may result in pregnancy, these activities are private matters that are probably difficult for an employer to discover. But suppose a teacher in a Catholic school confides in a coworker that she had an abortion and this coworker tells the school administration. Under Title VII, could the school fire the teacher, if the teacher agreed to these terms when she was hired? If the policy is applied equally to men and women, the answer will most likely be “yes.”

You may be thinking, “But doesn’t the fact that men can’t have abortions automatically make any policy against abortions discriminatory?” Not necessarily (!)

If the policy doesn’t target abortions specifically but rather requires employees to abide by Catholic teachings in general, it’s not discriminatory on its face. So the only way to maintain an employment discrimination claim is to show that, although the policy is “facially neutral,” it’s not applied equally to men and women. This can be demonstrated with proof that a male teacher who also violated the employer’s policy was not fired even though the school was aware of his misconduct as well.

But before you start breaking out the champagne for Ms. Dias: There is an ever-expanding exception to employment discrimination cases against religious institutions that may negate the possibility of Ms. Dias winning her case altogether. In 1972, the 5th U.S. Circuit Court of Appeals first recognized the “ministerial exception” to Title VII, holding that the Free Exercise and Establishment Clauses of the First Amendment prohibit the government from interfering in a church’s decision to fire a minister. Basically, religious institutions must be free to dismiss ministers for any reason, without worrying whether their decision will subject them to employment discrimination claims.

If the schools can prove that Ms. Dias served as a minister, she will be barred from bringing a Title VII claim. And courts have expanded the ministerial exception to include many employees who aren’t ordained ministers, as long as their primary duties are ministerial.

Unfortunately for Ms. Dias, the U.S. Supreme Court’s 2011 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission broadened the definition of ministers under the exception even further. In that case, the plaintiff, a teacher, instructed her students on mostly secular subjects with the exception of approximately 45 minutes each day, when she taught religion and led the students in prayer. The plaintiff also completed eight college-level theological courses in order to obtain the title of “called” teacher (as opposed to “lay” teacher). According to a unanimous Supreme Court, those activities were sufficient to label the teacher a minister and dismiss the suit based on the ministerial exception to employment discrimination claims.

In her complaint, Ms. Dias states that she worked as a technology coordinator, teaching computer classes and overseeing the computer systems at the schools. There is no indication that she instructed the students on religious topics or led them in prayer. So Ms. Dias will probably not be considered a minister and the school won’t be able to use the ministerial exception as a defense to her discrimination claim.

Regardless of the outcome of her case, Ms. Dias has no regrets about having artificial insemination, and is delighted with her little girl. “I would do it all over again for her,” she said.

This blog originally appeared in Legal as She is Spoke on January 25, 2012. Legal as She is Spoke is a blog produced by New York Law School’s Program in Law and Journalism. Reprinted with permission.

About the Author: Katherine Lazarow is a staff editor for the New York Law School Law Review, a member of the Justice Action Center, and an intern at the Urban Justice Center’s Mental Health Project. Katherine graduated from McGill University in Montréal with a Bachelor’s in Sociology.

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

Friday, April 1st, 2011

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.

It's Nothing New: Male Dominated Professions Foster Culture Of Sex Discrimination

Tuesday, April 6th, 2010

Bankers and Police Officers Charged With Gender Discrimination, Sexual Harassment and Retaliation

Two vastly different professions – banking and law enforcement – yet they share something in common and that is a culture of gender discrimination.

It’s the same stuff that’s been going on for decades in spite of federal laws which make sex discrimination, pregnancy discrimination, and sexual harassment illegal in the workplace. I have heard similar complaints from women for close to 30 years. That’s one of the reasons why I think it’s important to to spread the word about some courageous women  who are out there fighting for their rights.

Here are some of the cases that made the news.

Citigoup and Goldman Sachs Accused Of Discrimination Against Mothers

Two women filed gender discrimination cases against Wall Street banks claiming they were discriminated against after taking time off to have children.

According to ABC news, Charlotte Hanna, a former Golden Sachs VP in the HR department claimed that she was demoted and moved from her private office into a cubicle after the birth of her first child.

She was then fired while she was on maternity leave with her second child. Hanna was told that her position was eliminated, but leaned that another employee was hired to take over her duties.

Dorly Hazan-Amir complained about a long standing “boys club” culture at Citigroup’s asset finance division since the beginning of her employment. When she got pregnant, things got worse.

One manager asked whether she planned to be a “career mom” or “mom mom.” Another told her if she planned to continue working, she would have to put her career first and family second. Her pregnancy became the butt of office jokes.

Wall Street has had an ongoing problem with sex discrimination. Morgan Stanley settled two class action lawsuits brought by thousands of employees for more than $100 million dollars in 2004 and 2007. Smith Barney paid out $33 million in settlement of a case two years ago.

Syracuse Police Officer Gets $400,000 Jury Award

Last month, a New York jury found in favor of Officer Katherine Lee on her claim of sex discrimination and retaliation against the Syracuse police department. It was the third significant verdict against the police department for discrimination, sexual harassment and retaliation of female officers in the last ten months.

Sgt. Therese Lore was awarded $500,000 by a jury in May, and Officer Sonia Dotson was awarded $450,000 last month.

Lee, a police officer for 14 years claimed she was repeatedly subjected to sexual harassment, and denied equal pay and promotions to her male counterparts.

Lee claimed that male officers frequently watched pornographic movies at the workplace and made sexually derogatory remarks about women. When she complained about male officers’ behavior, the department would conduct sham investigations, and then accuse her of misconduct for making those complaints.

A similar lawsuit was filed last week by Maj. Martha Helen Haire, a 22-year veteran of the LSU Police Department.

She sued the university claiming she was denied the position of chief of police, for which she was clearly qualified, because she is a woman.

Haire also claimed that she was harassed on account of her gender and “subjected to illegal retaliation/reprisal on account of her whistle-blowing activities consisting of protesting and opposing gender-based discrimination in the workplace.’”

Retaliation for complaining about discrimination and opposing discriminatory practices is illegal under Title VII.

It’s been decades since this kind of conduct has been declared illegal throughout the country yet sadly, the culture of discrimination and harassment in male dominated professions is awfully slow to change.

Images: corporette.com farm4.static.flickr.com

*This post originally appeared in Employee Rights Post on April 4, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

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