Pacifiers and Pink Slips

Would you lose your job if, for a few months, you had to run to the bathroom more often than your coworkers? Or your doctor told you to carry a water bottle and drink as often as possible? Or if you were told you couldn’t lift more than twenty pounds for a few months?

Probably not, if you’re a white-collar worker. And probably not, if you’re a blue- or pink-collar worker—a janitor, factory worker, health aide, retail clerk—who’s strained your back or has some other condition covered as a temporary disability by the Americans with Disabilities Act’s Amendments Act (ADAAA, or “AD triple A,” as the insiders say it) of 2008.

But yes, you might well lose your job for that if you’re pregnant.

Pregnancy doesn’t qualify as a disability. So if you’re a pregnant low-wage worker, your boss could very well tell you that if you can’t follow the workplace’s standard rules—about bathroom breaks, water bottles, standing all day, or carrying trash bags weighing up to 30 pounds—you have to stay home without pay. And that after you have the baby and you’ve used up the three months of unpaid leave that’s guaranteed by the Family and Medical Leave Act,you have to either come right back or lose your job.

Fair? No. Legal? Well, that’s open to question—but it’s happening, undeniably. Fixable? Absolutely.

Recently, I spoke with Emily Martin of the National Women’s Law Center (NWLC) about this problem as well as the Pregnant Workers’ Fairness Act (PWFA), introduced on May 14 in both the House (by Representatives Jerrold Nadler and Carolyn Maloney, with a total of 90 cosponsors) and Senate (by Senators Robert Casey and Senator JeanneShaheen, and 12 cosponsors). Martin told me that the NWLC and associated groups believe that this sort of pregnancy discrimination is already illegal. Here’s why: The ADAAA of 2008 says that temporary disabilities that can be reasonably accommodated must be; meanwhile, the 1978 Pregnancy Discrimination Act says that pregnant women must be treated like other workers. Why should a person with gestational diabetes receive any less protection on the job than one with Type II diabetes? Although the Equal Employment Opportunity Commission (EEOC), which is charged with overseeing employment-discrimination laws, moves very slowly, it is considering issuing a clarifying guidance that would explain that, yes, pregnant women who need temporary accommodations must be treated like any other worker under the ADAAA, as I’ve reported here before.

I know what you’re thinking: A bill expanding women’s rights on the job getting passed out of this Congress? Yeah, right. But the advocates have to start somewhere. As I’m sure Prospect readers will be shocked to realize, there are two tiers of workers in this country: The ones who have some power over their daily routine—the office workers, lawyers, engineers, professors, and others who can, for instance, go to the bathroom whenever we please—and the ones who do not, and who really can’t afford to take time off the job. The low-wage, low-power, low-control group doesn’t exactly have time or power to try to change the law. And so advocates’ work involves letting the rest of us know that women are losing their jobs for having to pee while pregnant.

I spoke with Amy Crosby, who worked at Tallahassee Memorial Hospital and told me that on a normal working day, she cleaned between 20 and 30 rooms. While she was pregnant, she started getting terrible shooting pains in her arm if she lifted things; at night the pain could wake her up, or keep her awake with her arm uncomfortably numb and tingling. Crosby’s doctor diagnosed her with a pregnancy-related carpal tunnel condition, and wrote her a note assigning her to light duty, lifting no more than 20 pounds. That meant, she said, she couldn’t lift the trash or linens—which could easily weigh between 30 and 50 pounds—but she could still sanitize the rooms and put fresh linens on beds, the bulk of her job. Or she could have temporarily been reassigned to fold laundry or do clerical work until she went out on maternity leave.

She’d seen the hospital make it possible for others to stay despite some condition or other, Crosby told me. “One lady couldn’t stand the sight of blood,” Crosby said. “She saw blood one time and passed out.” After staying home for four days, the woman returned to work “and they put her on a different schedule so she didn’t see blood.” Problem solved. Another woman, Crosby told me, “couldn’t lift the heavy mats around the surgery table, those big old mats the doctors stand on. So the garbage guys come and lifted the mats for her every night so she could do her floors, and when she was done they put them back down for her.” Problem solved. In both cases, the hospital knew and helped with those arrangements.

Pregnancy was different. If you want to get knocked up and have kids, you deal with it. Crosby said that she was told to stay out on her allocated Family and Medical Act Leave, without pay, until she could come back and do her job as written.  (When asked for comment, a hospital spokesman said, “We have nothing to add.”)

Crosby, who has two other children and whose fiancé also works a minimum wage job at the hospital, says that the family used food stamps during the months that she was forced into unpaid leave. She found it humiliating to tell her daughter that they had to buy new clothes at Goodwill, not Wal Mart. She asked a Burger King manager for a job, but he told her they didn’t hire anyone who was pregnant—which Crosby didn’t know was illegal. The rejection left her despondent. “I was thinking to myself: If I can’t even get a job at Burger King, what are we gonna do?”

Crosby said she didn’t know she had any rights, but that her fiancé went online and found the NWLC, which filed an EEOC charge. After that, Crosby and the hospital came to “an amicable settlement.” She’s had the baby, and plans to go back to work before her leave is up on August 1. But not every pregnant worker is as lucky as Amy Crosby. Others stay out on FMLA leave, or lose in court. In other words, someone who is willing and able to work, with just a little accommodation, is instead left scraping by on public assistance—despite laws written specifically to put a stop to that.

We’re not talking about an immense burden for employers. Fewer than 2 percent of all workers are pregnant in any given year, according to the NWLC. Let’s say that half of them are in jobs where rules restrict their movements, but fewer than that need special accommodation for their pregnancies. How many employees are we talking about who need, at any given time, to go to the bathroom more often than scheduled, or ask their coworkers to pick up the heavier trash, just for a few months? Very few. None of which makes it less outrageous that any pregnant woman has to choose between peeing when she needs to or keeping her job. But it does make accommodating those few a low-cost, low-impact proposition. So why not get it done?

The PWFA doesn’t have any active opposition—not in the Chamber of Commerce or among Republicans; its opponent is inertia and lack of knowledge. Martin believes that the PWFA could be like the Americans with Disabilities Act, the beneficiary of a great deal of bipartisan support—if enough people come to understand that this is a problem—today, now—for thousands of women.

A few months, here and there. A stool, a water bottle, a bathroom break, a little help lifting now and then. What’s so hard about that? It’s stunning that we need a law to enforce what is simply considerate: letting people take care of themselves when they don’t feel well. You shouldn’t lose your job for having a family: How simple a rule is that?

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