Posts from the ‘Pregnancy Discrimination’ Category

Are you pregnant and suffering severe anxiety during the COVID-19 health crisis?

By Jack Tuckner, Esq.

If you are pregnant and suffering severe anxiety right now about giving birth during this coronavirus (COVID-19) health crisis, your employer must take that into account and be flexible with you due to your current pregnancy-based limitations.

Pregnant then Screwed, American Style

Women face many sex-based challenges in the workplace, especially pregnant women.  In the podcast “Pregnant then Screwed, American Style,” New York pregnancy discrimination lawyer Jack Tuckner discusses the challenges facing pregnant working women during and after pregnancy. He explores the many facets of this relentless form of sex discrimination and offers empowering guidance and tips for protecting yourself, your job and your income at a time in your life when you can’t afford to get fired or quit.

Click on the link to listen to the podcast “Pregnant then Screwed, American Style.” 

Reasonable Accommodations in the Workplace for Pregnant Employees

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By Jack Tuckner, Esq.

I mentioned in a video here last week that if you work for any employer in New York City and you’re pregnant, you’re entitled to flexibility throughout your pregnancy and even after your pregnancy, when you return, in terms of lactation issues, because New York City has the Pregnant Workers Fairness Act. Again, the most comprehensive pregnancy discrimination law in the country. But even if you work outside of New York City, in New York state or anywhere in the country, for an employer with at least 15 employees, you’re entitled to flexibility during your pregnancy as well. Even if your employer tells you that they’re not obligated because they’re a private employer, or you used up all your sick leave, or you’re not covered by the family and medical leave act, it doesn’t matter because your employer doubtless provides flexibility and accommodations to other employees who are not pregnant but are similar in their ability or inability to work with certain limitations such as other types of disabilities.

Your employer in all probability, because otherwise it would be violating the law, accommodates those people. People who have limitations in terms of lifting, or they’re sick for a while, or they have to go to the doctor, or any kind of reasonable flexibility and accommodation that’s accorded to others, either groups or other individuals that are not pregnant. Those are your comparitor individuals. Your company must treat you no differently, no worse than it does other employees who aren’t pregnant and require flexibility. Or it is sex discrimination because pregnancy and pregnancy related challenges are obviously only born by women.

So when you are pregnant, because the EEOC and federal law has been trending toward this flexibility and accommodations under the pregnancy discrimination act, EEOC guidelines and undoubtedly your state’s anti-discrimination statute. If you’re experiencing any kind of inflexibility, hostility, or discrimination during your pregnancy, make sure you document it to your employer. Make sure you insist that you’re entitled to flexibility so that you can see your obstetrician during the day, so that you can have tests, and so that you can sit down occasionally. If your position requires eight hours of standing, you are entitled to flexibility so that you can have a healthy pregnancy and give birth to a healthy baby. And take your maternity leave and then return to work, no worse for wear.

Candidates Finally Talked About Paid Leave — But They’re Still Missing the Point

(Republished from InStyle Magazine, Nov. 21, 2019)

Maternity leave isn’t going to help a woman who’s being demoralized at work and “managed out” of her job simply for getting pregnant.

By Kaelyn Forde 

Wednesday night’s Democratic presidential debate was moderated (for the first time this campaign cycle) entirely by women, so we finally got to hear about how candidates plan to tackle issues like paid family leave, the high cost of child care, equal pay and — for a rousing few minutes — reproductive rights. The four female journalists wasted no time getting down to these so-called “women’s issues” that have largely gone undiscussed. In fact, it was only the fifth time since 1996 that debate moderators have asked about paid family leave and child care, despite those needs being top of mind for many American voters, according to a new analysis by TIME’S UP.

Moderator Ashley Parker of the Washington Post first put the question to entrepreneur Andrew Yang, who pointed out: “There are only two countries in the world that don’t have paid family leave for new moms, the United States of America and Papua New Guinea. That is the entire list. And we need to get off this list as soon as possible.” (Sadly true.) Yang proposed giving American parents each $1,000 to help defray the cost of childcare or staying home with their kids.

Minnesota Sen. Amy Klobuchar proposed three months of paid family leave, saying, “We are way behind the curve.” California Sen. Kamala Harris doubled that to propose a full six months of paid leave: “Many women are having to make a very difficult choice whether they’re going to leave a profession for which they have a passion to care for their family, or whether they are going to give up a paycheck that is part of what that family relies on,” she said.

What has still yet to receive any debate stage air time is the fact that, often, the difficult choice to leave a profession is made for women — when they become pregnant or have children. Pregnancy discrimination first came up on the campaign trail after conservative news outlets challenged Sen. Elizabeth Warren’s story of not having her New Jersey teaching contract renewed in 1971 after she became visibly pregnant. In response, women on social media were quick to point out that not only did they believe it had happened to Warren in the 1970s, it’s very much still happening today.

Elizabeth Warren ✔@ewarren

When I was 22 and finishing my first year of teaching, I had an experience millions of women will recognize. By June I was visibly pregnant—and the principal told me the job I’d already been promised for the next year would go to someone else.45.3K8:08 AM – Oct 8, 2019Twitter Ads info and privacy 8,720 people are talking about this

Despite being illegal in the U.S. since 1978, documented cases of pregnancy discrimination are on the rise. Complaints received by the federal Equal Employment Opportunity Commission rose 46 percent between 1997 and 2011 (the latest year for which there is published data). That reality means that women sometimes go to great lengths to hide their pregnancies at work or put in extra hours to try to protect their careers from the perception that moms are less dedicated.

“It’s an enormous problem, and even when workplace protections for pregnancy exist on the books, that doesn’t necessarily prevent expecting women from experiencing discrimination on the ground in their day-to-day lives at work,” says Caitlyn Collins, PhD, a sociology professor at Washington University in St. Louis and the author of Making Motherhood Work: How Women Manage Careers and Caregiving. “Just because a behavior is made illegal doesn’t mean it stops happening both in overt and subtle ways.” So it’s definitely still happening — the question, then, is what do you do about it?

Dr. Diane Horvath, the medical director of Whole Woman’s Health of Baltimore, was one of the women who opened up on Twitter, in response to Warren’s story, about having hid her pregnancy at work. Horvath said she had already worked as a gynecologist for three years when she interviewed for a family planning subspecialty fellowship in 2013. She also happened to be pregnant.

“I was worried I’d be a less desirable candidate if they knew I’d be a new parent during fellowship,” Horvath tells InStyle. “I was 34 at the time, and some of my colleagues already had children, but fellowships can be very competitive, and I didn’t want to be judged for my decision to have a child at that time. I hid the pregnancy until I couldn’t hide it anymore, around 26 weeks.”

The irony of being a doctor who cares for pregnant women hiding her pregnancy wasn’t lost on her. “I witnessed physicians being treated poorly by other physicians for the decision to have a child in medical school, during residency, or in practice,” she says. “There’s never an easy time to have a baby, but most people do it at some point in our lives. There just isn’t enough support for parents, at work or otherwise.”

Lucy* also kept her pregnancy a secret from her employer for as long as possible, until about four months in. She had just found out she was expecting when she started a new job in marketing at a major media company in New York City. She was relieved to be hired — she had worried that she wouldn’t get a job if she were visibly pregnant at interviews. But she watched her reputation at work plummet after revealing her pregnancy, she says.

“Prior to finding out I was pregnant, my senior vice president regularly told me I was the most senior, most experienced manager on the team and would be positioned to get promoted quickly,” Lucy, 36, tells InStyle. After Lucy shared her pregnancy news, a more senior position opened up and she expressed interest in the promotion. “I was told that I had made my choice by getting pregnant, and now was not the right time to be on the ‘front line’ of the business,” she says.

It’s an experience Collins heard about over and over again from the women she interviewed for her book on work and motherhood. American mothers told her they’d had people at work comment on their bodies, ask invasive questions, and discourage or give them a hard time about leaving work for OB-GYN appointments. There was also pressure “to double down on their commitment to the job to prove their dedication,” Collins says.

Lucy gave birth to her daughter in 2016, took her maternity leave, and came back to find herself increasingly out of the loop. “I was completely written off as a player on my team. I was passed over for a promotion two more times, even though my work was as good as it had been before the baby. My SVP grilled me about work/life balance and suggested my husband wasn’t pulling his weight in our marriage — hello, inappropriate!” she says. Leaving work on time to pick up her child from daycare was cited in her review as a reason why she was thought to be underperforming. “I had my first bad review ever post-baby,” Lucy recalls.

Jack Tuckner, a New York employment lawyer specializing in women’s rights in the workplace and pregnancy discrimination, says he’s handled hundreds of pregnancy discrimination cases over the past 20 years, and experiences like Lucy’s are frustratingly common. “Pregnancy does not always derail a woman’s career trajectory, of course, but it often doesn’t do it any good,” Tuckner tells InStyle. To be clear — it is not pregnancy that harms a woman’s career, but the stigma attached to working mothers that does.

Tuckner says he’s seen pregnant women unilaterally barred from business travel by their bosses, excluded from after-hours client meetings where alcohol will be served, or have promotions taken away because of the timing of their maternity leave.

Spelling out how this happens, Tuckner says he’s seen women receive conveniently timed poor performance reviews — like Lucy did — because “if the powers that be are not pleased by the employee’s pregnancy as a result of the perceived limitations the company will be required to ‘reasonably accommodate’ (including providing maternity leave and private lactation space upon her return), they may criticize her work as a setup to termination, or to manage her out by demoralization leading to resignation or firing.” It’s an end run around pregnancy discrimination laws that achieves the same result: forcing a pregnant woman out of her job.

So what can you do to protect yourself or a coworker? First, know your rights. In addition to the 1978 Pregnancy Discrimination Act, pregnant women are also protected by Title VII of the Civil Rights Act, which views pregnancy discrimination as a form of sex discrimination. The Equal Employment Opportunity Commission’s official guidance also requires employers to be flexible about challenges in the workplace before and after an employee gives birth. “Pregnancy, sex and disability are intertwined protected statuses under federal and most state and local human rights laws,” Tuckner explains. Knowing what protections you’re entitled to makes you better prepared for a meeting with your manager or HR.

Then be strategic about whom you tell and when, says Tuckner. Big news travels fast, so don’t let your manager find out from your work wife in the Starbucks line. Even if you sit down and tell your manager face to face, make sure the announcement is also in writing.

“Even if it’s something friendly to your company’s HR or benefits department, ‘We’re so happy, we’re having a baby, she’s due on this date, just checking on the company’s maternity leave policy,’ put it in writing,” Tuckner says. “You want a paper trail. Because when things go south afterwards, that’s what it’s all about: timing.”

The key, Tuckner says, is to “document, document, document,” even if you expect your boss to do the right thing. “It’s all about trust but verify.” Then, if you experience sexist comments or behavior — or feel you’re being pushed aside under the assumption you’re less committed to the work because you’re expecting — speak up to your boss and HR, Tuckner says. Keep that in writing, too. “For most women suffering pregnancy discrimination while they’re still employed, the goal is to not have a case — the goal is to document the differential treatment as it’s happening so that the company has the opportunity to rectify the discriminatory treatment, and if they do not, the next best resolution is to negotiate a separation from the company with severance,” Tuckner explains.

Advocates say a broad cultural shift is also needed. As long as women are seen as primarily responsible for taking care of the kids, they’ll be seen as less committed at the office. Men need to step up and take on an equal share, Collins says, and employers need to “abandon this outdated notion that women are the only workers with family responsibilities.”

Further, caring for children, and, in some cases, aging parents, directly conflicts with America’s always-on work culture. “Being an ‘ideal worker’ in the U.S. means showing undivided, extreme commitment to one’s employer: a full allegiance of time, energy, and dedication. Any external responsibilities detract from this image. Women’s unequal burden for housework and caregiving mean we assume women and mothers are categorically unable to be ‘ideal workers’ on the job,” Collins says. Harris made the same argument on the debate stage: “What we are seeing in America today is the burden principally falls on women to do that work.”

New legislation is placing the burden to fix this on women, as well. The Pregnant Workers Fairness Act, introduced in Congress in 2017, would require employers to make reasonable accommodations for women before and after giving birth and protect them from retaliation or intimidation if they request those accommodations. It would also make the process more interactive, requiring employees and employers to talk about those needs. So, more protections could be on the horizon for women — as long as they demand them, kicking off difficult conversations with their bosses that, at present, don’t always go so well.

“Just because ‘fired for being pregnant’ isn’t written on the pink slip, it doesn’t mean employers don’t base decisions on pregnancy status,” Horvath says. And the outpouring of stories after Elizabeth Warren shared her experience backs that up. Tuckner adds that the vast majority of pregnancy discrimination cases end up settling out of court, and, when they do go to trial, women are increasingly winning thanks to new laws and better protections. Still, because the burden falls to a woman to pursue legal action in the first place, many never get as far an attorney’s office. “There’s also very little enforcement and accountability, because it costs time and money to pursue these cases. The people who are the most harmed are the ones who have the least access to the resources they would need to make a case against their employers,” Horvath says.

In the end, that’s exactly what it comes down to: resources, and who exactly is entitled to them. As Warren said in Wednesday’s debate when asked about states seeking to limit abortion access: Women’s rights are human rights — and they’re also economic rights.

Having children is expensive, but motherhood shouldn’t also cost women their careers.