"[R]efusing to accommodate pregnant women is often completely legal"

October 22, 2018 12:22 PM

The New York Times: Miscarrying at Work: The Physical Toll of Pregnancy Discrimination. "Women in strenuous jobs lost their pregnancies after employers denied their requests for light duty, even ignoring doctors’ notes, an investigation by The New York Times has found."

"[R]efusing to accommodate pregnant women is often completely legal. Under federal law, companies don’t necessarily have to adjust pregnant women’s jobs, even when lighter work is available and their doctors send letters urging a reprieve.

The Pregnancy Discrimination Act is the only federal law aimed at protecting expecting mothers at work. It is four paragraphs long and 40 years old. It says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.”

That means that companies that do not give anyone a break have no obligation to do so for pregnant women."

posted by amf (25 comments total)

We need a Bill of Rights for Babies or something, including real pregnancy protections, maternity and paternity leave for everyone, and, while I'm dreaming here, universal daycare and pre-K (or some kind of voucher for stay at home parents)...
posted by puffyn at 1:09 PM on October 22, 2018 [3 favorites]

I can see a slippery slope with pregnancy protections, even though I agree with you in principle, in that someone somewhere would use them as a way to end legal abortion.
posted by cooker girl at 1:23 PM on October 22, 2018 [24 favorites]

I know that these are quotes from the New York Times and this is definitely not directed at the poster, just a friendly reminder that trans and non-binary people exist and women are not the only ones who get pregnant.
posted by Mrs. Pterodactyl at 1:56 PM on October 22, 2018 [20 favorites]

Maybe I'm wrong but if your doctor puts you on a work restriction, aren't they required to make reasonable accommodations by Federal law?
posted by JakeEXTREME at 1:56 PM on October 22, 2018 [1 favorite]

Oh, I know, you'd have to be very careful how you crafted it. Maybe fold the pregnancy-at-work part into an expanded ADA, with pregnancy counting as a "temporary disability" or something, for privacy reasons; if your doc says you're on light duty, then your boss can't ask if it's due to pregnancy or, I dunno, a resurgence of your preexisting back problems, and they have to put you on light duty. (And not fire you in retaliation.)
posted by puffyn at 1:57 PM on October 22, 2018 [1 favorite]

fuck a capitalism.
posted by Reclusive Novelist Thomas Pynchon at 2:00 PM on October 22, 2018 [15 favorites]

Heartbreaking and enraging.
posted by naju at 2:19 PM on October 22, 2018

I wouldn't be surprised to find out that bosses are more likely to comply with requests for light duty if the employee is white.

Pregnancy discrimination can affect anyone, but I bet that bosses' attitudes towards pregnant employees will depend a lot on how worth protecting they think those pregnancies are.
posted by Kutsuwamushi at 2:20 PM on October 22, 2018 [6 favorites]

Being an American these days is like waking up each morning wondering what horrible new policy, or lack thereof, or what shockingly disgusting political decision/behavior/comment/tweet, or what collective blind-eye-turned to human suffering I am going to find out about and be embarrassed of my citizenship over today.
posted by allkindsoftime at 2:25 PM on October 22, 2018 [20 favorites]

Maybe I'm wrong but if your doctor puts you on a work restriction, aren't they required to make reasonable accommodations by Federal law?

Nope. From the pull quote right there:

[The Pregnancy Discrimination Act] says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.”

More details here . There is some wiggle room if a pregnancy causes something which the government considers to be a disability, in which case the employer has to provide reasonable accommodations if it won't create an undue hardship. The site lists "carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, and preeclampsia" as examples.
posted by damayanti at 2:26 PM on October 22, 2018 [1 favorite]

I'm sure that the anti-abortion protesters are already all over this, given that they care so much about unborn babies. They must be naming and shaming corporations that ignore doctors' orders and cause employee miscarriages, right?

Right?

... Oh. It wasn't about babies, it was about punishing women all along?
posted by RedOrGreen at 2:26 PM on October 22, 2018 [57 favorites]

To be fair the article does mention pro-life campaigners supporting stronger legal protections here.

How these bosses can even sleep at night is beyond me. How do you justify that to yourself? “Oh sure, she lost her much-wanted child, but at least we got today’s quota of boxes moved, GO TEAM!”
posted by Catseye at 2:34 PM on October 22, 2018 [11 favorites]

> Maybe I'm wrong but if your doctor puts you on a work restriction, aren't they required to make reasonable accommodations by Federal law?

from the article. worth quoting at length. this is the sort of country we're in and this is what our economic system does:

That means that companies that do not give anyone a break have no obligation to do so for pregnant women. Employees say that is how the warehouse’s current owner, XPO Logistics, operates.

For example, last October, a 58-year-old woman died of cardiac arrest on the warehouse floor after complaining to colleagues that she felt sick, according to a police report and current and former XPO employees. In Facebook posts at the time and in recent interviews, employees said supervisors told them to keep working as the woman lay dead.

If companies “treat their nonpregnant employees terribly, they have every right to treat their pregnant employees terribly as well,” said Representative Jerrold Nadler, Democrat of New York, who has pushed for stronger federal protections for expecting mothers.

ceterum autem motherfucking censeo capitalism esse delendam goddammit.
posted by Reclusive Novelist Thomas Pynchon at 2:38 PM on October 22, 2018 [9 favorites]

“Women have lost their children due to the lack of robust pregnancy protections in the workplace,” said Catherine Glenn Foster, the president of Americans United for Life, an anti-abortion group. “Anyone who can’t get behind this or uses it as a political game — it’s a travesty.”

Oh yeah, they'll take this path as a stealth opening to criminalize abortion if that's what it takes. I'm sure "worker protection" is exactly what these groups have in mind, not, y'know, sneaking in some stealth personhood legislation that focuses on punishment rather than creating a safer environment for people who want children and their babies.

But some Republicans, including Senator Lamar Alexander of Tennessee, where the XPO warehouse is, viewed that bill as adding a confusing new layer of regulations, according to Senate aides. Mr. Alexander, who is chairman of the Senate committee on health and labor, co-sponsored a competing bill. It expanded protections for pregnant women in some cases. But it still allowed employers to deny accommodations if they weren’t being provided to other workers in similar situations.

So, a fetus is a person. A corporation is a person. Pretty soon, everything will get to be a person unless you have a uterus.
posted by Kitty Stardust at 2:56 PM on October 22, 2018 [19 favorites]

How these bosses can even sleep at night is beyond me. How do you justify that to yourself? “Oh sure, she lost her much-wanted child, but at least we got today’s quota of boxes moved, GO TEAM!”

To be fair, these bosses are working menial jobs, which in America means they get shitty healthcare and retirement savings, and if they lose this job their safety net is basically relying on the graciousness of local religious institutions. Because the state is actively robbing social security to give the rich more tax cuts.
posted by allkindsoftime at 3:11 PM on October 22, 2018 [3 favorites]

On further research, I believe I disagree with a key aspect of the piece and some of the comments in the thread. The NYT piece seems to be taking the angle that what XPO Logistics did here is within the acceptable confines of the current Pregnancy Discrimination Act (PDA) law, and the real problem to discuss is with the shortcomings of the law; in their take, the XPO Logistics events are a symptom rather than the cause.

As the pull quote says, "a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are 'similar in their ability or inability to work.'"

This actually means similar to a disabled employee, not similar to all employees. What that means in terms of the law as worded is that pregnancy is considered to be a temporary disability in the eyes of the law, which folds in the American Disabilities Act (ADA). If what the pregnant employee is asked to do would violate disability standards under the ADA, then it would also violate the PDA.

"If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay." source

The law requires the employer to provide reasonable accomodations, including lighter work, to such an employee unless it would cause "undue hardship" ("significant difficulty or expense") to the employer. source

Maybe I didn't read closely enough, but XPO Logistics can't demonstrate undue hardship for any of these cases - they would be ADA violations, and they're also PDA violations.

The NYT chooses this quote to explain the law:

If companies “treat their nonpregnant employees terribly, they have every right to treat their pregnant employees terribly as well,” said Representative Jerrold Nadler, Democrat of New York, who has pushed for stronger federal protections for expecting mothers.

Which is an outright false and misleading representation of what the current law actually is. The standard is not how your company treats nonpregnant employees; the standard is how you are required to treat disabled employees. Those are two huge differences.

I guess the NYT wants to take a bolder journalistic approach that allows them to advocate changing the law, but the problem with that is that they're undercutting the reality that the highlighted cases here are gross violations of existing law.
posted by naju at 3:19 PM on October 22, 2018 [6 favorites]

OK. My source links above are from the EEOC (Equal Employment Opportunity Commission), but it appears that the EEOC's interpretations of the law were explicitly rejected by the Supreme Court. The Court in Young v. United Parcel Service in 2015 applied its own interpretation and articulated a new standard, but didn't do so in a clear way, and it's been applied inconsistently, leading to a split in the courts.

Law review article on this.

In cases where a pregnant worker is temporarily unable to physically perform some of her job duties, and is denied a workplace accommodation by her employer, her main avenue for relief is to seek redress under the Pregnancy Discrimination Act (PDA). The PDA provides, in part, that an employer must treat a pregnant worker “the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . .” In other words, unlike some areas of federal discrimination law, the PDA does not affirmatively require that an employer reasonably accommodate pregnancy and its related conditions; instead, the law simply mandates that businesses treat their pregnant workers equally as compared to other similarly situated, nonpregnant employees.

The key issue in these cases, then, is determining who is similarly situated to the pregnant worker so that the court may then decide whether those other employees have received preferential treatment in violation of the PDA.

...

In Young v. United Parcel Service, Inc., the U.S. Supreme Court granted certiorari to resolve the circuit split regarding how to identify the appropriate comparator in cases alleging disparate treatment under the PDA. Young involved a pregnant parcel delivery driver who was denied a light-duty accommodation because she did not fall within any of the various categories of employees covered by her employer’s workplace accommodation policy. In deciding the case, the Young Court explicitly rejected the plaintiff’s position that if any worker receives an accommodation for a work limitation, then a pregnant worker with a similar work limitation must be accommodated in the same manner under the PDA. But the Court also recognized that if an employer is already accommodating many employees with work limitations similar to those affecting the pregnant worker, then the employer must present a sufficient justification for why it cannot likewise accommodate the pregnant employee.

Along these lines, the Young Court adopted a new standard for disparate treatment cases arising under the PDA. Assuming that the plaintiff has established a prima facie case of discrimination, the Court held that the pregnant plaintiff may then establish that her employer’s justification for not offering an accommodation was pretextual “by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers,” and therefore that the employer’s “reasons are not sufficiently strong to justify the burden.” In particular, the Court stated that a plaintiff can establish that her company’s policy significantly burdens pregnant workers “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”

While this new standard is certainly more worker-friendly than the approach previously espoused by a majority of circuit courts, the Court’s new formulation nevertheless fails to clarify how a plaintiff identifies the appropriate comparator when meeting her initial burden of establishing a prima facie case of unlawful discrimination under the PDA. In other words, returning to the hypothetical example above, does the plaintiff establish a prima facie case of discrimination by comparing her treatment to the employee with the tennis injury or the employee with an occupational injury? Or by comparing her treatment with both? Unfortunately, the majority opinion merely parrots the language of the PDA without resolving this issue. Moreover, following Young, it remains unclear precisely how dramatic the differential between an employer’s treatment of pregnant and nonpregnant workers must be for a plaintiff to successfully prove that the employer’s policy significantly burdens pregnant employees, and that the employer’s justifications for the policy are thus pretextual and constitute illicit discrimination under the PDA.

posted by naju at 4:01 PM on October 22, 2018 [1 favorite]

Based on all this, the primary issue that I can figure out is that courts and legislators are not seeing a very obvious problem inherent in comparing pregnant workers with disabled or injured workers in terms of their ability to work.

An injured or disabled worker may be physically unable to lift a heavy box. Or, an injured or disabled worker may be physically able to lift the heavy box, but may injure themselves in the process as a result of their disability or injury.

Pregnant women can't just be mapped onto those same two possibilities. It's possible for pregnant women to be physically able to lift the heavy box, and they may be able to do so without injuring themselves, but they may still be likely to injure, fatally, the baby growing inside of them via a miscarriage. But there's no court interpretation that seems to account for the safety of that third party (the fetus), nor is there anything in the current law to account for that. The only lens they've applied is safety and ability of the pregnant woman, not the safety of the fetus she wishes to carry to term.

So you get this horrible result of applying that lens to actual situations: women are miscarrying because in the eyes of the law, they can lift that heavy box and do so without hurting themselves.
posted by naju at 4:22 PM on October 22, 2018 [6 favorites]

Pretty soon, everything will get to be a person unless you have a uterus.

Oddly, just last week was Persons Day here in Canada, marking the October 18, 1929 ruling by the highest court of appeals in Canada that women were legally persons.

Other things arriving earlier in 1929 and thus predating the personhood of women: colour television, Max von Sydow, Bob Newhart.
posted by ricochet biscuit at 4:31 PM on October 22, 2018 [8 favorites]

It's not XPO, it's Verizon. Many large companies have a small number of contractor companies that handle any work that is not considered to be highly competitive.
Verizon uses XPO, before it was whatever company XPO bought and it was whatever company that company bought before hand.
They are all a shell game and their revenue and workforces are deeply intertwined.
posted by kzin602 at 5:27 PM on October 22, 2018 [2 favorites]

A miscarriage is not just a harm done to a fetus. There can be pain and risk iof infection for the woman, as well as mental anguish.

Medically speaking, during pregnancy a fetus is basically a part of the woman's body and you can't profoundly affect one without affecting the other in some way.
posted by emjaybee at 8:13 PM on October 22, 2018 [6 favorites]

I'm kicking myself that I didn't save the link, (will keep looking) but there was an article recently in the Australian press that raised the idea of one-but-two people, a paradox that exists in pregnant women. The author had lost a baby to a car crash, and yet was against the kind of provisions where pregnant women are prosecuted for injuring themselves 'on purpose' to harm the baby. She said that there should be a way for the law to recognise the fetus as a person that doesn't also impede on a woman's rights as a person.
posted by freethefeet at 4:40 AM on October 23, 2018 [2 favorites]

You know, I think that we are people living in a complex enough time with enough intelligence that pro-choice people (such as myself) can recognize that absolutely there should be protections for pregnant people that are being forced to work in ways that are dangerous for their fetus, without shooting down necessary reforms with the fear that "they'll be used to further criminalize abortion." Like yes, that is absolutely a possibility, but I don't think we can ethically justify not working as hard as we can to protect pregnant people from being exploited and harmed by their bosses against that eventuality. Protecting the right to carry a baby to term is just as important as protecting the right not to do that. We need both sides of the coin for a functioning, safe, society.
posted by ChuraChura at 6:01 AM on October 23, 2018 [10 favorites]

I worked at a major financial institution in their online marketing department for years. At one point my group was under a boss who was a former executive at a freight railroad company, who had been pushed out of management there for various reasons. She was a real "punch down" type and she rode people hard with no eye for the future, always focused on what she perceived to be metrics of her own immediate success, and this ruined a lot of big projects. She was especially cruel to other women, most of all happily married ones with families (she was pretty open about disliking children, her own husband, and solving problems with "more wine").

One day one of the project managers in our group was seated in the cube next to mine and her water broke. She was so afraid of the boss that she stayed in her cube wrapping up e-mail chains and making frantic phone calls for almost a half hour while sitting on a folded up towel. Finally several coworkers and her husband convinced her to go to the hospital.

It was shocking to exactly nobody on our floor. The shitty boss was really that shitty.

The same boss actually tried to have me "performance managed" out of the company around the same time. I networked well with my business customers in other units, and instead of being fired I ended up being promoted into another group and given an award (for performance).
posted by trackofalljades at 6:34 AM on October 23, 2018 [1 favorite]

Carrying out the idea that women who abort are criminals, doesn't that make companies who push women to the point of miscarriage should be charged with murder of the fetus? What about if a woman dies as a result of a miscarriage gone bad at work? Absolutely ridiculous! The company is not at fault, the woman is. She CHOSE to work.

We need a Bill of Rights for Babies or something, including real pregnancy protections, maternity and paternity leave for everyone, and, while I'm dreaming here, universal daycare and pre-K...

Bill of Rights from Birth to Death, starting with those Babies Rights and including lifetime health care, education, housing....

Why is it that so many people love the idea of a child, yet can't admit that when they're actual people, they have needs?
posted by BlueHorse at 4:35 PM on October 23, 2018