Our Customers Don't Want a Pregnant Waitress

E.J. Graff

January 31, 2013

Having a family shouldn’t cost you your job. But it does. 

Having a family shouldn’t cost you your job. It does, again and again—especially if you’re female. Which is one of the reasons women’s pay still isn’t equal.

I’ll be writing about this in the months to come, but for today, here’s one way having a family can cost you your job: women still get fired for being pregnant. Although it’s been illegal since the 1978 Pregnancy Discrimination Act, women are still refused a job or let go if they’re pregnant. You’d be shocked, EEOC and employment law folks tell me, at how often employers say so point-blank: Come back after you have the baby. The guys don’t want to look at a pregnant waitress. Housekeeping is hard work; your pregnancy is a potential liability. Our customers are uncomfortable with a pregnant driver.  

All that’s illegal. It’s wonderful that we can talk about Sheryl Sandberg going home every day at 5:30 to be with her kids. And it’s wonderful that we can have the advanced conversation about women needing to stand up for themselves in their professional careers. But there’s a different set of issues for the bottom half of the workforce: basic, straightforward, illegal discrimination still hits them, over and over again. Women who are going to be rock-bottom poor, struggling to feed their children, if they lose their jobs for getting pregnant.

Here’s an excerpt from the testimony of Sharon Terman, of San Francisco’s Legal Aid Society-Employment Law Center, to the EEOC last February:

We have heard from many women who were fired immediately upon announcing their pregnancy, and whose employers expressly told them that pregnancy was the reason for their discharge.

One client told the owner of her company that she was pregnant about when she began the second trimester, and he responded, "That's not going to work," and fired her the next day. She was not asking for any leave or any accommodation, but he said, "We're a small company, and we can't afford to cover you when you're gone." Harassment of low-wage pregnant women is also quite common, and many women of color experience discrimination and harassment based not only on their pregnancy, but on race and national origin as well.

Second, an increasingly common pattern of discrimination against low-wage pregnant workers that we've seen is that, upon learning of a woman's pregnancy, the employer will force her to take an unpaid leave for the rest of her pregnancy. The forced leave is not based on medical need, but rather on the employer's unfounded assumption about the woman's capacity to do her job, or about fears regarding safety.

When one of our clients, a Latina janitor, told her boss she was pregnant, he said she needed to go on leave right away and find a replacement. Often this forced leave occurs early on in pregnancy, when the woman is perfectly able and very much wants and needs to keep working. Then, later, when the woman really needs the leave, she's already exhausted all allowable time off, and is fired.

For real-life examples, check out some EEOC cases at Muskegon River Youth Home, where women were required to report their pregnancies; a Detroit Comfort Inn, where a housekeeper was fired for being pregnant (and becoming, in her supervisors’ eyes, a walking liability); and a Peoria, Arizona bar that refused to let a pregnant waitress work the most lucrative shift.

Firing a woman for getting pregnant—or forcing her out on unpaid “medical” leave that she doesn’t need—is nasty enough. But pregnancy discrimination can also be a little more subtle. Imagine that you’re pregnant and you just need to sit down for part of the day. Or you need to drink more water, and take more bathroom breaks, so you don’t get a urinary tract infection. That’s fine if you’re a lawyer, professor, or some other knowledge worker who can control your physical world. It’s not fine if you’re a nursing assistant, waitress, warehouse worker, telephone operator, or someone else with little power. Employers have refused to allow a cashier to sit on a stool for a cashier, or refused to let a retail worker carry a water bottle. One UPS driver’s doctor told her that, for the first trimester, she shouldn’t lift more than 20 pounds. Even though the vast majority of UPS packages weigh two pounds and her coworkers were perfectly willing to help out with the others, and even though a man with a back injury or someone with a DUI would have been allowed a temporary accommodation, she was fired—and in Young v. UPS, the Fourth Circuit recently upheld the district court’s summary judgment that refusing to keep her on was not pregnancy discrimination.

But there’s good news on the horizon. Here comes some technical information, but hang on, it gets better. Recently I talked with EEOC Commissioner Chai Feldblum, who said that recently the EEOC picked out three emerging legal issues of discrimination where it wants to make a difference. One is this business of whether employers have to accommodate pregnant workers. The push is helped by the fact that major women’s advocacy groups like the National Women’s Law Center and the National Partnership for Women and Families have asked the EEOC to update its guidelines on precisely this issue. So there’s hope that there will be change.

In 2008, Congress amended the ADA to expand the definition of disability to include temporary disabilities. You can’t fire someone for having a back injury or a concussion; you have to find a way to help them along while they get better. So here’s the question: shouldn’t pregnancies that have temporary medical needs be protected as temporary disabilities?

That may sound obvious, but it will be much more obvious—and enforceable—if the EEOC issues a formal statement saying so. Feldblum thinks it is, and said she’ll be working to persuade the other three commissioners that it’s an urgent matter of equal pay, one of the EEOC’s formal priorities. “If we can make a dent in the number of pregnant women who end up having to leave their jobs when they don’t have to really,” she said, “it will ultimately help in pay equity.”

Here’s why it matters: women and their children are going to stay poor if women lose their jobs, and later have a harder time finding new ones, just because they need to snack while they’re pregnant. It keeps women and families poor. Women’s wages can’t possibly get to equal if they get lose their jobs for having children. 

Comments

ThinkingDem

Fri, 2013-03-01 19:21

Age discrimination is supposed to be illegal also, but employers in technical professions consider an employee disposable after age 50. Companies have traditionally provided upgrade training as a part of the job, but computer programmers over 50 who do not have the personal funds and time off to obtain the credentials for newer systems are merely let go when their old mainframe duties become redundant. Older men and women who want a family are apparently considered "untermenschen" (subhuman) by the wealthy who run corporations.

kittycryt

Mon, 2013-03-04 22:58

Have you ever been pregnant? Have you studied the medical factors in a pregnancy? Have you see how fragile a pregnancy is that even the smallest mistake (e.g. sleeping on the wrong side, eating one "wrong" food, or even bending down incorrectly) can drastically affect a baby in their mother's womb? As someone who wrote an article about this, I'm fairly sure you would know correct? Now with all those risks, why do you believe that a business owner (especially a small business owner in this economy) won't be afraid that his/her pregnant employee will -at one point-ask for a leave (at least to even have the baby...I'm sure you understand how long it takes to safely give birth.) As a woman who owns multiple small businesses, one can't afford to be short on employees or staff. If the pregnant woman doesn't ask for a leave, that would be incredibly worrying for me. I would worry about her health, and the health of her child, plus the other workers would also worry for her because most people understand the delicacy and stress holding another form of life brings. This brings me to another point. About the waitress that was fired, I don't believe that she deserved to get fired (or that any of them deserved to lose their jobs), but I do understand (as a business holder) why she would get fired. To put it simply, firing them is a lot easier than placing them on temporary leave and filling their job with another worker. Restaurants and businesses don't run like schools, in which you could just hire a substitute teacher. Business...it's a dog eat dog world out there. Think about it as the person who worked so hard to make it to the top, and then a person who couldn't achieve the same goal even though they were in the same society or "social class"… and even not. What I'm trying to say is, these aren't acts against women. I know this because as a woman, I would have fired most of them too. These are just acts of humanity. "Our Customers Don't Want a Pregnant Waitress" isn't sexist or wrong...although it is rude...it's just blatantly stating clear facts. Customers know how pregnancy affects people, if the repeatedly seeing a pregnant woman working just as hard as a completely okay waitress or waiter, they might start to question the work ethics of the restaurant and the health of the woman-especially if she expresses signs of stress/exhaustion/etc-which put the customers on edge and they won't want to call her back if they have a problem with their order, or need refills etc. If the costumers express this behavior, the pregnant woman isn't working nearly as hard as the rest of the staff...does she still deserve equal pay? As a business owner, my answer would be no. You have to understand all aspects, all points of views and just general human nature.

SillyGoose

Sat, 2013-03-09 10:46

Kittycryt - people who think like you are the reason why women are still discriminated against. And don't think this discrimination is only limited to low wage earners - it's much easier for schools to replace teachers who are pregnant than to work with their pregnancy, too. Ever wonder why women do not hold as many high power positions as men? One of the reasons is childbearing. And by the way, I have been pregnant. While I wouldn't want to wait tables while pregnant, I would if it was my means of supporting myself.

cuurmudgeon@sbc...

Wed, 2013-03-13 21:46

"Have you see how fragile a pregnancy is that even the smallest mistake (e.g. sleeping on the wrong side, eating one "wrong" food, or even bending down incorrectly) can drastically affect a baby in their mother's womb? "

Kittycryt , I'm an obstetrician. That is the most ludicrous thing I've ever heard. I've known women who played softball 7 months pregnant. They didn't run very fast, but they played and their unborn babies didn't suffer.

"Business...it's a dog eat dog world out there. " And that's exactly what's wrong with business.

ThinkingDem

Fri, 2013-04-12 15:15

Personally, my wife and I enjoy eating out where the waiters and waitresses have friendly faces, and are well groomed, regardless of their medical status. When we are served by a friendly, personable waitress who happens to be obviously pregnant, we take the opportunity to congratulate her (we assume she wants to be congratulated unless told otherwise) and let her know that, even though we will miss her on returning while she is on leave, we wish her and her family well. Anything that increases the feeling of HUMANITY in a restaurant, or other business, has a positive effect on sales and thus on profit.

That said, even if an employer truly cannot accommodate a worker who is far along in pregnancy, the employer owes it to the employer (morally, of course, and in SOME cases perhaps legally) to negotiate a reasonable FUTURE date for maternity leave, length of leave, and provisions for return to work if possible, as soon as notified. And a woman's medical situation EARLY in pregnancy is normally not much different from before (assuming she is not working the breakfast shift in a greasy diner). So everyone knows months ahead of time when she is leaving and returning, and the employer has plenty of time to find a temporary replacement.

Basically, seeing an employee's pregnancy as a positive step for her and her family, which allows leave and replacement to be PLANNED, is a win for the business.

Of course, in some cases, a waitress or other employee who was already incompetent, or gave the manager other reasons for firing, may be let go for pregnancy as an excuse (not the young lady in this story, I am sure), but even then it is better to document the shortcomings and give her the real reason. But the "pre-emptive" firing at the first notice of a pregnancy, in case of future things that "might" happen, is just plain wrong. That would be similar to the manufacturing company that was told their workers were exposed to toxins that might cause birth defects, but rather than improve the safety of their procedures, just demanded that fertile female employees had to be STERILIZED or they would be FIRED. The fact that the same toxin, or others that might be present, are not very healthy for women who are NOT pregnant, or for men either, was completely ignored by that company.

Unfortunately, the market rewards cutting corners on safety and mistreatment of workers in the short term, long before companies who do these things are punished by the market, if ever. And unfortunately, managers who try to do the RIGHT thing are punished for costing the company a bit more money, whether by their own bosses or by stockholders, in the short term. And we have developed a business community that prizes short term profits more than long term viability, not to mention standing up morally to do what is right.

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