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Working while expecting: Pregnancy discrimination claims more common in low-wage, male-dominated jobs

BISMARCK -- When Steph Meier took a job managing a maternity clothing store, she never expected her boss would harass her because she was pregnant. Or as Meier put it, "The most ironic thing that could ever happen." Meier, 29, said she staffed th...

BISMARCK -- When Steph Meier took a job managing a maternity clothing store, she never expected her boss would harass her because she was pregnant.
Or as Meier put it, “The most ironic thing that could ever happen.”
Meier, 29, said she staffed the Motherhood Maternity shop in Bismarck by herself for months and that her boss repeatedly told her to find a different job because she couldn’t handle working so much during her pregnancy.
Fed up, Meier quit in March 2013, and she filed a discrimination complaint against her former employer.
“It just shocks me that things like this still happen today,” she said.
Meier, who reached a settlement with Motherhood Maternity, is one of over 100 pregnant workers in North Dakota who have filed similar claims with state and federal officials since 2000, an analysis found.
In recent years, the numbers of pregnancy discrimination complaints have dropped locally and nationally. Based on these statistics, it’s hard to say whether such discrimination is actually declining or whether fewer victims are filing claims, women’s rights advocates say.
But what’s certain is that pregnant women in North Dakota, Minnesota and elsewhere continue to face discrimination, especially those who are low-wage workers, like nursing assistants and retail clerks, and those in traditionally male fields, like police officers and package delivery drivers, advocates say.
Women in these occupations, which can require lifting or standing for long stretches, sometimes find themselves at odds with their employers when seeking lighter duties because of pregnancy. Lately, there’s been a wave of state legislation aimed at easing the burdens of pregnant women in the workplace.
Even in jobs that aren’t physically demanding, there can be discrimination based on notions that pregnant women are not competent or committed to their work.
“A lot of pregnancy discrimination is based on insidious sorts of stereotypes, which may not always be completely conscious,” said Emily Martin, general counsel at the National Women’s Law Center, a nonprofit organization in Washington, D.C.
‘I wanted to work’
For Lindzie McDonald, working as an emergency dispatcher was a dream job.
“When you get those 911 calls, it’s an adrenaline rush,” she said. “You’re the lifesaver on the end of that line.”
But that dream ended too quickly, said McDonald, who was fired less than three months after she started at the McKenzie County Sheriff’s Department because pregnancy complications kept her from working her scheduled shifts.
“I got really, really sick,” she said. “I tried working while sick because they didn’t have a lot of dispatchers.”
McDonald, who lives in Watford City, ended up in the emergency room where she found out that on top of being sick, she was also pregnant.
She said her doctor told her part of the reason she felt so ill was because she wasn’t getting enough sleep. Dispatchers worked 12-hour shifts, sometimes during the day and sometimes at night. When she worked night shifts, she said, it was difficult to sleep during the day.
“My average sleep was only about four to five hours when I was working these shifts because my body wouldn’t go to sleep,” she said.
McDonald’s doctor gave her a note asking her employer to consider putting her on day shifts while she was pregnant, she said. The answer from the sheriff’s department was “no.”
Letting McDonald work only day shifts during her pregnancy would have gone against the department’s policy and would have been unfair to the other dispatchers covering her shifts, according to documents filed with the North Dakota Department of Labor and Human Rights.
McDonald lost her job in June 2012 because she couldn’t comply with the department’s policy, according to the documents.
“I wanted to work,” she said. “But there was only so much I could do.”
In February 2013, McDonald filed a charge of pregnancy discrimination against the sheriff’s department. The Department of Labor and Human Rights, which investigated her case, found that she had not been discriminated against and that she was not entitled to accommodations different than any other employee with a temporary medical condition.
The McKenzie County Sheriff’s Department did not return phone calls or emails seeking comment, and Scott Porsborg, the department’s attorney, declined to discuss the case.
These days, McDonald and her husband manage a campground and own a trucking business, but she’s had trouble getting another job since being fired as a dispatcher.
“It’s very frustrating,” she said. “It still upsets me.”
Making accommodations
This month, the North Dakota House unanimously approved a bill that would require employers to give pregnant workers reasonable accommodations, including at times of morning sickness, said Renee Stromme, executive director of the North Dakota Women’s Network.
Stromme said she’s optimistic the bill will become law. “It isn’t terribly burdensome to an employer,” she said. “It’s just a small adjustment.”
At least 12 states, including Minnesota, have already enacted so-called accommodation laws, which place limits on lifting and allow for more frequent food, water and restroom breaks. These state laws are meant to close gaps in the federal Pregnancy Discrimination Act of 1978, which doesn’t specifically require employers to accommodate pregnant workers.
However, federal law does mandate that employers treat pregnant workers the same as other employees “who are similar in their ability or inability to work,” according to the U.S. Equal Employment Opportunity Commission.
Some interpretations of federal law have cleared the way for companies to put employees injured at work on light duty while not giving pregnant workers the same accommodation, said Ariela Migdal, a women’s rights attorney at the American Civil Liberties Union.
“There’s all different ways that companies have managed to offer their light-duty programs kind of to everyone except pregnant workers, and some courts have said that’s OK,” she said.
The U.S. Supreme Court is considering this question in the case of Peggy Young, a delivery driver for the United Parcel Service in Maryland, whose doctor advised her not to lift more than 20 pounds at work during her pregnancy. This led UPS to force Young to take an extended, unpaid leave of absence.
Since then, UPS has changed its policy to accommodate pregnant workers. Women’s rights advocates say such a change can benefit a company’s bottom line by curbing turnover and boosting productivity.
State accommodation laws put limits on how far a company needs to go to accommodate a pregnant employee. For instance, employers don’t have to make an accommodation that would cause undue hardship to their business.
“Sitting down or extra breaks or things like that - that is reasonable,” said Stephanie Winterquist, spokeswoman for the Fargo-Moorhead Human Resource Association. “Putting in an elevator so that they don’t have to go, you know, two flights of stairs - that’s not reasonable.”
‘Family friendly’
Stephanie Henley was living in Oklahoma when she saw the ad on Craigslist: KNS, a trucking firm in North Dakota’s Oil Patch, needed an office clerk.
Wanting to be closer to her 19-year-old son in Valley City, Henley applied for the job. And when she got it, she moved her husband and two other children to KNS company housing in Parshall.
“They said that they were a very family friendly organization,” she said.
Henley, 41, had been working there less than a year when, in May 2014, she became pregnant with her fourth child. On learning the news, her boss and the company’s owner did not offer their congratulations. Instead, their reaction was cold and self-interested, she said.
“Are you still going to be able to clean?” Henley recalled being asked. Cleaning the owner’s home was a duty she’d taken on to show that she was an obliging employee.
Tensions between Henley and her superiors peaked in September. That’s when her husband came to the office because their daughter, who was about 15 months old, had hurt her hand, and he needed helped bandaging it.
Henley said that for some reason this visit upset her boss, who had her baby in the office at the same time. Henley’s boss told her that she needed to ask permission before her husband and daughter stop by, Henley said.
Less than a week later, Henley was fired.
In the fall, she filed a complaint with the North Dakota Department of Labor and Human Rights accusing KNS of discriminating against her because she was pregnant.
“The red tape to go through everything is very intimidating, but you know, they had no reason to fire me,” Henley said.
State officials have not finished reviewing her claim. In an email, KNS denied there was any discrimination.
Henley said she’s reached out to employment lawyers for help with her case, but they’ve all told her they represent employers, not employees. McDonald said she also couldn’t find an attorney to handle her case.
One of the few North Dakota attorneys who take employees’ discrimination cases is Mark Larson of Minot. He said one reason for the limited of number lawyers like him is financial.
Larson said he and other plaintiffs’ attorneys typically are only paid if they win a settlement for a client. This can sometimes be a losing proposition for attorneys, given the time they spend on cases.
But the practice continues because clients frequently can’t afford to pay legal costs upfront, Larson said.
“You’ve got a worker that has no job, and I’m supposed to ask them to pay me an hourly fee?”
Retaliation worries
Claims of workplace discrimination can be filed with the EEOC or with the state human rights agencies in Minnesota and North Dakota. Investigating these claims, officials often determine that no law has been violated.
“I think there’s a misnomer out there that a pregnant employee is entitled to some form of reasonable accommodation, and that isn’t exactly what the law provides,” said Kathy Kulesa, North Dakota’s human rights director.
From 2010 to 2013, there was a finding of “no probable cause,” or insufficient evidence that the law was broken, in 68 percent of pregnancy discrimination cases filed with the North Dakota Department of Labor and Human Rights, records show.
For the same years, 66 percent of cases filed with the Minnesota Department of Human Rights were deemed to have no probable cause, and the figure was 61 percent for EEOC cases nationwide.
In cases with findings of no probable cause, workers can still sue their employers in state or federal court, Kulesa said.
For pregnant women who’ve experienced discrimination but haven’t lost their jobs, it’s common for them to not even file a complaint due to fear of retaliation, Martin said.
“It’s much easier to bring a charge of discrimination against someone you no longer work for,” she said.
The bulk of pregnancy discrimination cases involve a pregnant job applicant who wasn’t hired or a pregnant worker who was fired, said Lisa Edison-Smith, a Fargo attorney who specializes in employment law.
Edison-Smith said she occasionally represents employees, but that 80 to 90 percent of her work has been for companies.
“Of the employers that I deal with, certainly I think … the vast majority of them want to comply with the law,” she said.
Employers also want to avoid paying hefty settlements which, in Edison-Smith’s experience, can reach five figures or more.
Meier said a nondisclosure agreement prevents her from discussing the settlement she reached with Motherhood Maternity. A company spokeswoman declined to discuss the case, including how much money, if any, Meier received.
If Motherhood Maternity did pay Meier a cash settlement, it wouldn’t have been the first time the Philadelphia-based retail giant did so in a pregnancy discrimination case.
In 2007, Motherhood Maternity was ordered to pay $375,000 after the EEOC accused the company of refusing to hire pregnant applicants and firing an assistant manager who spoke up about it.
“It is shocking that a corporation whose market is pregnant women would refuse to employ them and then retaliate against a woman who complained about the practice,” an EEOC official said at the time. “We are pleased that this settlement will steer this important company to better treatment of pregnant employees.”

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