Pregnant Pause
For years the Suffolk C\ounty Police Department on Long Island, N.Y., allowed officers to take desk jobs or light-duty assignments when they notified superiors they were pregnant.
That’s what veteran patrol officer Christine Blauvelt did in 1999 when she was expecting her first child. Blauvelt worked a desk job, responding to walk-in complaints until just days before her delivery.
By late 2001, Blauvelt was expecting her second child and asked for a similar assignment. This time her request was denied.
The year before, the department had implemented a new policy that denied limited-duty assignments to any officer, pregnant or otherwise, who was not injured on the job or facing some disciplinary action that would result in a desk assignment.
Pregnant women had a choice: Go home and use sick leave and unpaid days during the later stages of pregnancy and after delivery; or stay on patrol, even though bulletproof vests didn’t cover their growing bellies, and in some cases made it difficult for them to reach for their side arms. (Because of the vest issue, pregnant women are now given 90 days of light duty if vests no longer fit.)
Not surprisingly, the women most often chose to go home while other officers were allowed limited-duty assignments, they claimed. But six female officers didn’t let the issue drop.
Enlisting the support of the New York Civil Liberties Union and the ACLU’s Women’s Rights Project, Blauvelt and five female co-workers challenged the new policy in federal court in New York. Lochren v. Suffolk County, No. 2:01-cv-03925-ARL.
In June, a four-man, four-woman jury found that the policy was discriminatory and that the department discriminated intentionally against two of the plaintiffs. All six officers were awarded damages of at least $5,000, up to as much as $23,000 for one officer who was initially given a light-duty assignment that was taken away when her superiors learned she was pregnant.
“It’s obviously a victory for women on police forces nationally or [in] any traditionally male field or occupation,” says New York City employment lawyer Carmelyn Malalis, who is part of the all-female trial team representing the women. As of late June, plaintiffs were seeking injunctive relief from the judge.
Suffolk County Attorney Christine Malafi says, however, that the verdict is “completely inconsistent” and that the police department needed to enact a gender-neutral policy or face a lawsuit from male officers or others who wanted light-duty assignments for non-pregnancy- related reasons. The county had not determined as of June 28 whether to appeal.
Employment lawyers have watched the case closely. Lochren is one of the very few pregnancy discrimination cases to make it to verdict. It is also at odds with a recent 6th U.S. Circuit Court of Appeals decision that upheld a company policy denying light-duty assignments to pregnant, uninjured workers.
MUCH AT STAKE
Indeed, pregnancy discrimination cases—and more broadly, cases involving what lawyers are calling “family responsibilities discrimination”—are on the rise. The U.S. Equal Employment Opportunity Commission reports that pregnancy discrimination claims filed with the agency have increased by 31 percent between 1992 and 2005. In fiscal year 2005, the EEOC received 4,449 charges and resolved 4,321, recovering $11.6 million in monetary benefits (not including litigation).
In the largest case to date, the EEOC announced in early June that it had finally been able to calculate how much a class of 12,326 current and former female employees would receive in their 2002 settlement of a landmark class action against Verizon Communications’ predecessors, Nynex Corp. and Bell Atlantic Corp. The ticket? Nearly $49 million. The money is to cover the benefits that women lost while they took pregnancy and maternity leave.
But that’s just at the EEOC. Law professor Joan C. Williams, a leading work-life scholar and researcher, says her research shows that family responsibilities discrimination has boomed over the last 10 years.
Williams, who teaches at the University of California’s Hastings College of the Law in San Francisco, has identified three triggers for these suits: allegations of discriminatory practices during pregnancy, maternity/paternity leave, and requests for flexible schedules. Williams has documented at least 17 legal theories at play, from disparate impact and disparate treatment to hostile work environment and violations of the Family and Medical Leave Act.
And there is not much guidance on pursuing claims, says Malalis. “Any case that goes to verdict is important because there are so few of them,” she says.
A case with some of the most sweeping implications is Back v. Hastings on Hudson Free School District, 365 F.3d 107, in which the New York City-based 2nd Circuit held in 2004 that stereotyping about motherhood is a form of discrimination, even though the defendants are women and the plaintiff couldn’t prove that men were treated differently. The plaintiff, school psychologist Elana Back, alleged she was denied tenure because she was a new mother. She claimed her superiors questioned her ability to both be a mom and do her job well. Back ultimately lost her suit and a subsequent appeal to the 2nd Circuit.
As with other forms of discrimination, stereotyping can be subtle and difficult to prove. Indeed, the U.S. Supreme Court acknowledged as much in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), ruling 6-3 that state employees may recover damages in federal court if states fail to comply with the FMLA’s family-care provision.
Chief Justice William H. Rehnquist wrote for the court that stereotyping created a “self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees.”
Rehnquist noted that such stereotypical views led Congress to enact the FMLA across the board because lawmakers reasoned that “subtle discrimination may be difficult to detect on a case-by-case basis.”
Adding to the confusion, several circuits have ruled that light-duty policies are perfectly fine, so long as the policies are applied uniformly. In a case involving such a “pregnancy-blind” policy, the Cincinnati-based 6th Circuit ruled in May that a federal court in Memphis correctly tossed a disparate treatment lawsuit by a pregnant worker who claimed she was discriminated against because she wasn’t given a light-duty assignment. Reeves v. Swift Transportation Co., 446 F.3d 637.
‘TOOLS OF DISCRIMINATION’?
The 6th Circuit ruled that swift transportation’s policy of granting light-duty assignments only to workers who were injured on the job is a legitimate, non-pregnancy-based reason to terminate an employee who could not lift more than 20 pounds.
Noting that the 5th and 11th Circuits reached similar conclusions about light-duty work policies, the 6th Circuit said that entitling the woman to light-duty work would “provide greater protection and benefits to pregnant women than to other employees who suffered from non-work-related injury or illness, such as a heart attack or cancer.”
The panel acknowledged that light-duty policies can be “tools of discrimination” but noted that there was no such evidence in this case.
“I think the 6th Circuit got it just right,” says Chicago employment lawyer Brenda Feis. “The Pregnancy Discrimination Act does not require or even allow preferential treatment for pregnant employees.” The 1978 statute amended Title VII of the 1964 Civil Rights Act to prohibit discrimination on the basis of pregnancy, childbirth or related medical conditions. The act requires that employers treat pregnant women the same as other employees with similar abilities or physical limitations.
“Whatever policy you’re going to have, treat pregnant women the same as anyone else in a similar situation,” Feis says.
To Williams, stereotyping remains an issue that will continue to fuel litigation. Williams, who is publishing a paper on what she terms “maternal wall lawsuits” at www.worklifelaw .org, says she has come across various “loose lips statements” in cases, such as “working mothers are lazy” and “you can’t do this job with little ones.”
For example, in Moore v. Alabama State University, 980 F. Supp. 426 (M.D. Ala. 1997), a woman who was working her way to becoming director of admissions recalled that after she became pregnant, her supervisor told her, “I was going to put you in charge of that office, but look at you now.” The federal judge in Alabama ruled that such statements, including that the plaintiff, Debbie D. Moore, wouldn’t be promoted because she was pregnant and was married, are “direct evidence of discrimination.”
“Neither statement was subject to multiple interpretations, and neither required leap of logic or inference by jury to conclude that discrimination occurred,” the court held. The case ultimately settled in mediation.
Though stereotyping is not new, the increase in family responsibilities litigation is. But Williams stops short of offering a single explanation for the increase.
Changes in the 1991 Civil Rights Act, which provided for damages in cases of intentional employment discrimination, led to an initial rise in discrimination cases in general.
“Another factor,” Williams says, “is a generational shift. Women my age, and I’m over 50, were just amazed we were allowed in any traditional male workplaces on any terms,” she says. “The younger women feel entitled to be in these jobs and they feel entitled to live up to very widely shared ideals of motherhood. When they can’t, they see that as discrimination.”
And when these cases go to trial, the aggrieved mothers and fathers are winning, Williams says.
“There’s a higher win rate in these cases than in civil rights cases in general,” Williams notes, explaining that “these are family values cases.”
