Articles Posted in Pregnancy Discrimination

Owen H. Laird, Esq.

On Thursday, August 11, 2016, Mayor Bill De Blasio signed into law a bill requiring a variety of New York City facilities to provide a lactation room for nursing mothers.  Facilities that now must provide a lactation room to the public include city job centers, the offices of the Administration for Children’s Services, and centers operated by the Department of Health and Mental Hygiene, among others.  These rooms must be equipped with a chair, an electrical outlet, and access to running water.

This new law is intended to provide protection for women who are harassed or retaliated against for nursing their children or otherwise expressing breast milk.  The law signed on Thursday complements several other laws passed by New York City protecting nursing women; two of the more significant existing laws are New York Civil Rights Law § 79, which protects a woman’s right to breastfeed in public, and New York State Labor Law § 206-c, which requires employers to provide time and space for nursing women to express milk.  While New York State was at the vanguard on this issue when it passed the above laws in 1994 and 2007, respectively, federal law has since caught up; in 2010, Congress amended the Fair Labor Standards Act (as part of the passage of the Affordable Care Act, more commonly known as “Obamacare”) to include a provision requiring employers to provide breaks and space for recent mothers to express breast milk.

Lev Craig

Despite major societal advances in gender equality in the past several decades, pay disparities between men and women are still a pervasive problem in American workplaces. In 2014, the median earnings of women who worked full-time were 83 percent of those of their male counterparts, according to the Bureau of Labor Statistics. Last week, in an important step towards eliminating gender-based compensation inequities, Massachusetts enacted bipartisan legislation that has been called “one of the strongest equal pay bills in the nation.”

There are already several federal statutes in place that are intended to establish equal pay for employees of all genders: The Equal Pay Act of 1963 (“EPA”) prohibits employers from paying unequal wages to men and women who perform substantially equal jobs, and Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act forbid compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. However, the new Massachusetts law has notable differences from these federal statutes, including an entirely unique provision concerning an employer’s ability to ask about a prospective employee’s history of compensation.

Lucie Rivière and Edgar M. Rivera, Esq.

On Wednesday, March 2, 2016, and March 4, 2016, The Harman Firm, LLP published the first two parts of its three-part article titled Microaggressions. The third part, which follows below, discusses microaggressions in the context of employment discrimination litigation.

Passed in 1964, Title VII prohibits employers from discriminating against their employees on the basis of gender and race, among other protected characteristics. Under Title VII, prohibited discrimination includes subjecting an employee to a hostile work environment and unlawful employment practices. Unsurprisingly, examples of all three forms of microaggressions (microinsults, microinvalidations, and microassaults) are reported in a variety of judicial opinions brought under Title VII. However, Title VII does not prohibit conduct that is “merely” offensive, meaning that not all microassaults are actionable (and most microinsults and microinvalidations are not either, despite their impacts on their targets). Indeed, the Supreme Court held that “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” does not sufficiently affect the conditions of employment to implicate Title VII.

Lucie Rivière and Edgar M. Rivera, Esq.

This blog is the first section of a three-part article discussing microaggressions and their effect in the workplace. This first section covers the development of the term “microaggression” and the different types of microaggressions that exist. The second section covers practical examples of microaggressions and their impact on those subjected to them. The third section covers the application of microaggression to employment discrimination law.

As more brazen forms of workplace discrimination slowly become less common, employees may experience more discrimination through microaggressions. Chester Pierce, M.D. of Harvard University, who developed the concept of microaggressions in the 1970s, describes microaggressions as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color.”

Lucie Rivière

On February 11, 2016, the District Court for the Northern District of California approved an $8.2M class action settlement in a sex discrimination case between the Japanese pharmaceutical company Daiichi Sankyo, Inc. (“DSI”) and nearly 1,400 of its female employees.

On February 11, 2013, Plaintiffs Sara Wellens, Kelly Jensen, Jacqueline Pena, Bernice Giovanni, Lara Hollinger, and Jennifer Bennie filed a class action complaint against DSI on behalf of themselves and all current and former DSI female sales representatives and first-level sales managers. Plaintiffs alleged gender discrimination, including unequal pay, benefits, and reduced career advancement opportunities. Plaintiffs brought claims under Title VII of the Civil Rights Act of 1964; and California State Law.

Ciera Ambrose and Edgar M. Rivera, Esq.

On March 26, 2015, the Supreme Court of the United States (“SCOTUS”) articulated the standard for pregnancy discrimination claims under the Pregnancy Discrimination Act of 1978 (“PDA”). In Young v. UPS, the Court interpreted the second clause of the PDA, which requires employers to treat “women affected by pregnancy … the same for all employment-related purposes…as other purposes not so affected but similar in their ability or inability to work.” The Court decided how this clause applies to employers that provide fewer accommodations to pregnant workers than to employees with non-pregnancy related disabilities.

Peggy Young was a part-time UPS driver. After becoming pregnant, her doctor advised her not to lift anything more than 20 pounds. UPS requires drivers are required to lift packages weighing up to 70 pounds.   Young requested UPS to allow her to continue to working without requiring her to lift heavy packages to accommodate her pregnancy. UPS regularly gave such accommodations to employees who sustained work-related injuries or suffered from disabilities covered by the Americans with Disabilities Act (“ADA”). UPS told Young that she could not work if she could not lift packages. Young consequently stayed home without pay during most of her pregnancy. Young sued UPS under the PDA, alleging that UPS had discriminated against her based on her pregnancy.

Yarelyn Mena and Edgar Rivera, Esq.

Imagine that you, your wife, or your partner becomes pregnant. Perhaps you will change your habits—quit smoking, quit drinking, maybe even quit seafood. But will you quit your job? That is a tougher decision. What is important to remember is that it is your decision to make, and not your employer’s. Employers often fail to recognize that a woman has the right to choose to seek time off before, during, and after a pregnancy, and to be able to return to work.

In Hemmerlein v. Bloomberg, L.P., plaintiff Megan Hemmerlein, a political on-air-correspondent for Bloomberg Television (“BT”), alleged that BT violated the Washington D.C. Family and Medical Leave Act (“DCFMLA”) by terminating her employment after she requested DCFMLA leave. After Ms. Hemmerlein informed Bloomberg Media Group’s chief executive officer, Ellen Uchimiya, that she was pregnant, BT pulled her from stories, uninvited her from important networking events, and gave her the first negative performance review she had ever received at BT. A few days into Ms. Hemmerlein’s DCFMLA leave, BT terminated her as part of “ongoing layoffs” and informed her that she could look for another position within the company. However, the other two on-air-correspondents, who were male, were not terminated and, when Ms. Hemmerlein inquired to management regarding the availability of other positions, she did not receive a response. Ms. Hemmerlein claims that her DCFMLA leave was a “motivating factor” in BT’s termination decision.

Peggy Young had worked as a driver for UPS for seven years when she took leave to undergo in vitro fertilization procedures. The procedures worked, and she became pregnant. When she returned to work, an occupational health manager from the company told her she had to submit a doctor’s note so that they could make appropriate restrictions to her job responsibilities. She provided a note from her midwife saying that she could not lift more than 20 pounds during while pregnant, and on the basis of that note UPS decided that she could no longer perform the duties required for her job. Further, they said, since it was UPS’s policy not to offer accommodations to pregnant drivers, she would be placed on unpaid leave, suddenly losing both her paycheck and her health insurance at possibly the worst possible time.

Lower courts, including appeals courts, have not been sympathetic to Young’s reading of the Pregnancy Discrimination Act of 1978. For example, the Fourth Circuit stated that the law “does not, despite the urgings of feminist scholars…require an employer to offer maternity leave or take other steps to make it easier for pregnant women to work. Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.”

What the relevant text of the law actually states is that a pregnant woman “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” In general, then, the law does not enact protections specifically for pregnant women as such; it only says that inability to perform job duties due to pregnancy should be treated the same way as inability to perform job duties for other reasons. If UPS doesn’t have to keep employing someone who becomes unable to work because she injured herself on a non-work-related ski trip, for example, the company can and does argue, then they don’t have to keep employing someone who becomes unable to work because her behavior outside of work led her to be pregnant.

On November 17, 2014, the jury in Juarez v. AutoZone Stores, Inc. tacked on $185 million in punitive damages to its previous award of $872,719 for lost past earnings ($393,759.52), lost future earnings ($228,960), and emotional distress ($250,000). Lawrence A. Bohm of Bohm Law Group in Sacramento, California, who represented Ms. Juarez, said that the jury’s award to his client was “the most ever awarded to a single employee.”

In her complaint, plaintiff Rosario Juarez alleges that she had been abruptly promoted to the position of Store Manager after she had told her Human Resources regional manager that she was considering legal action because she believed that AutoZone consistently promoted far fewer women than men and paid them less than their male counterparts for the same work. The Defendant allegedly created a “glass ceiling” through an “opaque promotion process,” intentionally and with malice according to the jury.

Then, in September 2005, Juarez became pregnant, at which time her manager’s attitude toward her changed. He told her that she could not handle her job because she was pregnant, and that she should step down from her Store Manager position, which she refused to do. The same manager allegedly continued to harass her, telling her she should step down, that she could not be a mother and handle her job, and ultimately managed to get her demoted back to her previous Parts Sales Manager (PSM) position. She was told that she could be considered for a Store Manager position again after one year, but after one year actually passed they instead terminated her from her position as a PSM. Her termination The official reason for her termination was that she had been blamed for losing $400 in cash, but in the end the jury agreed with Ms. Juarez that her termination was due to gender discrimination and retaliation for filing this lawsuit.

On November 4, 2014 the EEOC filed a lawsuit against Crooked Creek & Creekside Bar & Grille (Crooked Creek) restaurant in Saginaw, Michigan, at the U.S. District Court, Eastern District of Michigan for violating federal law by refusing to hire a qualified applicant as a food server because she was pregnant.

According to the EEOC’s lawsuit, the job seeker had prior experience working in a restaurant. She applied for a vacant food server position in February 2013. Her first interview with Crooked Creek went well and she was asked to return for a second interview. When the applicant revealed her pregnancy during the second interview, however, Crooked Creek refused to consider her further for the job. To refuse to consider a woman for a job because she is pregnant violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA).

The PDA amended Title VII to state that discrimination “because of sex” includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” Further, women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes. In addition to making it unlawful for an employer to refuse to hire a woman because she is pregnant, the PDA also means that if a pregnant woman is temporarily unable to perform the functions of her job due to a pregnancy-related condition, the employer must treat her in the same manner as any other temporarily disabled employee, by providing modified tasks, alternative assignments, disability leave, or leave without pay. Further, an employer may not fire, demote, or deny promotion to a woman because she is or may become pregnant.