HR Stories Podcast - where the Lesson is in the Story

Baby Bump and Dump: Pregnancy Discrimination.

December 03, 2020 John Thalheimer and Chuck Simikian, SHRM-SCP Season 1 Episode 6
HR Stories Podcast - where the Lesson is in the Story
Baby Bump and Dump: Pregnancy Discrimination.
Show Notes Transcript

It should be one of your happiest moments when the doctor tells you you are pregnant. And for Rosario Juarez, it was, yet she was afraid of how she would be treated at work. And for a good reason, the New York Times reported that over the last decade, tens of thousands of pregnancy discrimination cases have been filed. In this story, we learn what happens when Ms. Juarez tells her boss and how the company's missteps ended with one of the largest jury rewards in California's history. 

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John Thalheimer:

Welcome to the HR stories podcast where there is a lesson in every story. If we listen well, stories help us learn and teach us ways to act. Each year, john tall heimer and Chuck Simikian deliver 1000s of seminars around the country business owners, executives and HR professionals discussing the fundamentals of human resources, best legal practices and risk reduction activities for organizations. This podcast allows us to dig deep into the Human Resources experience, and see where businesses go wrong. Each episode we share a different story where a company missed the mark. And then we'll provide recommendations based on our years of working in the Human Resources field. Sit back, listen, learn and act. Welcome to the HR stories Podcast, where there is a lesson in every story.

Chuck Simikian:

Hello, everyone, my name is Chuck Simikian.

John Thalheimer:

And i'm john tall heimer.

Chuck Simikian:

And today's episode is sponsored by get HR help now.com. That's gethrhelpnow.com. JOHN, when you sent me the subject of today's story, which, as our listeners may or may not know, you never actually tell me the story until we meet in person, but you do give me the subject. And today's subject is one that I'm somewhat familiar with. But I don't run into it a whole whole lot, but has to do with pregnancy and pregnancy discrimination in the workplace. So I thought I'm gonna go ahead and and punch that in and see what I could see. And I was blown away by just over the last year 12 months or so. How often pregnancy in the discrim at pregnancy discrimination in the workplace is happening by all of the losses. Can I read you some of the headlines?

John Thalheimer:

Oh, yeah. I would love to hear the headlines.

Chuck Simikian:

Yeah, I know you got a story to teach. But folks, you got to hear some of these headlines and these are all within the last 12 months. So here's the headlines. The news headlines, news headline or from even made May, this past year call center agency fired workers due to pregnancy according to the EEOC. Here's one don't play the pity card set a grocer who had to pay $2.8 million to settle a pregnancy accommodation claim. Here's EEOC says software company told pregnant sales woman to stop being so emotional ups pays 2.2 5 million to settle EEOC claims it denied pregnant women light duty Urban Outfitters worker terminated after announcing pregnancy plans company fired its only female workers over their pregnancies complaint claims. And then there was one or two more in regards to there's this and I didn't know what back. No, it wasn't back to basics. We're talking about back to basics. But there was a company here it is One Kings Lane, which I apparently is, is a home decor company. One Kings Lane worker alleges furloughs were based on pregnancy. So like I said, I was blown away by the amount and the prevalence of Pregnancy Discrimination lawsuits and not just complaints, but real things that the EEOC has been taking up.

John Thalheimer:

Yeah, and in my research, I looked up in the New York Times did a big article about it. And they found over the last decade 10s of 1000 Pregnancy Discrimination cases.

Chuck Simikian:

Wow. Wow. Wow. So what's our story today, john? Yeah, so

John Thalheimer:

let's get into the story. And so it starts on the evening of August 15 2005. Row zero orres. doctor gave her some good news. She was pregnant. This would be her second child. Immediately. She and her husband called their families letting them know that good news and a celebration dinner was planned. Yet Rosario was concerned about how her pregnancy would be perceived at work. She had worked at AutoZone working her way up from cashier to sales manager to assistant store manager and finally she'd become a store manager in October of 2004. Her male district manager was demeaning, condescending to her and other women in the organization. He would offer encouragement to the men who reported to him but often only offered criticism to her and the other female employees. After lots of consideration, Rosario does To keep her pregnancy a secret a secret at work, because she was afraid her boss will be even more critical and mean to her. She had worked hard to become a store manager pushing against the glass ceiling and showing her boss that a woman could do the job as well as a man. And she had to be right to be concerned. And so that article I was talking about New York Times they found that the 10s of 1000s Pregnancy Discrimination called courses over the last decade, and what they found was it happens to low wage workers and professional women in equal measure. So at work, Rosario received a favorable evaluation her store was steadily improving based on a reference and November of 2005, she thought it was time to tell her boss that she was pregnant. And his response was, congratulations. I guess. I kind of feel sorry for you. Oh, no. Oh, yeah. exact quote. His behaviors also changed. He made her redo time consuming activities. He increased her stores fix it list to several pages long after every time he visits, he would more remark to her in front of employees and customers that she couldn't do her job in her condition quote, unquote. Now at no point did Rosario asked for accomodation. Based on her pregnancy, she was physically enabled, and mentally able to do her job as defined in her job description. She in her sales team met or beat sales targets set by the company. her boss continued to raise the bar asking more of her than many of her other other than other store managers. He increased his push for her to step down, he finally placed her on a performance improvement plan. She ultimately was demoted to assistant store manager meeting that she had lost her bonus for the store manager role. In late March, she went out on maternity leave and gave birth to a healthy baby boy. out on maternity leave, she filed a lawsuit in state court a challenging or demotion as discrimination, basically saying that AutoZone had demoted her because she was pregnant. She went back to work and continued to work as assistant manager as this also went through the legal process. In July of 22,006, auto zone's legal team responded that they had done a thorough investigation and found no discrimination. Not long after rosaria was fired for an incident where an employee lost $400. So Chuck, as we look at this, right, I mean, it's obvious that there's Pregnancy Discrimination in there. But let's get into this and really go into what laws should we be thinking about when it comes to Pregnancy Discrimination? Sure. So

Chuck Simikian:

there is a law, a federal law, it's called the Pregnancy Discrimination Act. And it was passed as an amendment to title seven of the Civil Rights Act. And that happened in 1978. So the PDA was passed in 1978. And it amended the Civil Rights Act of 1964. To provide the fact that employers are not allowed to discriminate gay discriminate, sorry, yeah, discriminate against employees on the basis of their pregnancy, or pregnancy related conditions.

John Thalheimer:

Yeah, and I read and I read in the New York Times, and I thought it was some really good examples of what you cannot do. So for example, a supervisor cannot stop a pregnant woman from traveling to a conference out of a purported concern for her health. The manager cannot deny a pregnant worker promotion of on the assumption that she will be less committed to her job. The supervisor cannot temporally assign a pregnant worker to the less than desirable job because of suppose concerns. All of those things are illegal under the Pregnancy Discrimination Act.

Chuck Simikian:

Exactly. And I've worked in hotels, I've been an HR director in hotels for a number of years and theme parks. And every once in a while an employee would be once a lot it happens. ploys pregnant, and especially employee that's perhaps working in the housekeeping department, or maybe a physical related job. And immediately, the manager will come to me and said, Well, we have to move them to another area. And I'll say, Well, why. And the manager, usually it's a man sorry to stereotype, but usually it is. And he will say, Well, I don't want to be responsible. If If she gets hurt on the job. And I'll say, Well, did the employee request not to do that job? And he'll say, No. Well, then we can't move them because then you're that's an overt act of discrimination.

John Thalheimer:

Yeah, I mean, I think it's interesting how this plays out in the workplace. And I think we have to be really careful about it. So what are some of the things that you're concerned as from like the HR perspective, what should we be concerned about? What should we be dipping into?

Chuck Simikian:

Sure. So the now we're talking at the federal level, different states Also have different laws want to say different at the state level, you can take a federal law, and you could scope it down even more. So it's more favorable to the employee. So if you're listening to this, and you're in California, there is a whole law passed on this that strengthens. And, and can make you even more liable as an employer when it comes to Pregnancy Discrimination. But as an HR person, and I just want to make sure everyone knows that Pregnancy Discrimination, includes actions related to hiring, firing and promoting as well as job duties as as john had said, and it covers employers, federally, now, it could be different in your state with 15 or more employees. And when I think of it as an HR person, I just, you know, the the key here is consistent treatment. And I know we talk about consistency a lot, you know, employers need to be able to treat pregnant employees the same way they would treat anyone else. And that's the whole basis of the PDA Pregnancy Discrimination Act. And really any other non discriminate discrimination laws. You know, if a woman is temporary and unable to perform your job, due to medical condition related to pregnancy, or childbirth, you you you can treat her or you must treat her the same way as you would treat any other temporarily disabled employee. So consistent treatment is the first thing that I think of right off the bat.

John Thalheimer:

Yeah, and so I think we fall into the Americans with Disability Act, right, which requires employer to provide a reasonable accommodation that allows the employee to do their job. But what that combination consists of, right, and so for an individual that's pregnant, maybe they need more frequent breaks, for example, maybe they need to sit on a stool will vary depending on the job, the disability, what's happening during the pregnancy. And so I think employers need to understand that we're the one that gets to choose that accommodation. But we have to do it in concert with the employee and have those conversations for sure.

Chuck Simikian:

Right. So being pregnant, it's interesting says being pregnant, is not automatically covered as an ADA situation. However, Pregnancy related complications, then can be, and I want to give you an example of when we're talking about the consistent treatment, just like you, you said, it could be providing extra breaks if needed and requested, you know, if an employer's policy is to grant time off, let's say a worker is going to go to a doctor's appointment for a broken leg, well, then a pregnant worker would be entitled to the same treatment, if you're going to give them time off, to take care of a broken leg, you better be expected to give the same treatment to a pregnant worker. So pregnant worker says, I need some time off to go to the doctor. Because you know, maybe a little more frequently to get myself checked out because I'm pregnant. And if you're saying, well, we don't give that to you, but my co worker gets it because he broke his leg. Now you are inconsistent, and you are in violation of the Pregnancy Discrimination Act. And if you're not going to do it, you better have a good reason as to why which I can't really think of too many reasons.

John Thalheimer:

Yeah, and I think one of the challenge for HR professionals and leaders of organizations for that fact is that how do we keep that consistency, especially when we have a big organization? We have like 20 people, maybe it's not that big a deal. But when we have a big organization, say 100 people, 125 people, keeping that consistency, it's really hard. And so what what did you find was useful as an HR director to keep consistency across your organization? How did you and your team kind of deal with that?

Chuck Simikian:

Well, the first part is training. You have to provide the training to your your managers. And that's, that's pretty much it. As far as you know, the problem a lot of times, is there something out Have you ever heard this term benevolent discrimination? So think about it benevolent discrimination, and that's a common mistake. Employers think in their hearts, that they're in the right place, and they don't want a pregnant employee to work too hard, or to work too much. And they take it upon themselves to say, Well, you can't do this. When the pregnant employee says that they hurt that they her, she herself, says, Well, I can do that. And I want to do that. So there's two types of inconsistency as we're looking at one is the inconsistency where you are blatantly discriminating against someone just because, like in your story, that's a great example of overt discrimination. And then there's where it may transition to benevolent discrimination, where they may not realize it, but they're thinking they're being chivalrous, I guess you could say. And that's where the problem happens. So education is the best way to avoid in consistencies.

John Thalheimer:

Yeah, no, I like that. I like that. Yeah, I think in this story, in the AutoZone story, when you read the backstory, there was definitely discrimination against women throughout the organization, they had just got off another EEOC claim, they had just gotten off another EEOC claim. And during the meeting, when the executive announced that they were offered, somebody, one of the vice presidents said something like, Oh, thank goodness, now we can start firing the women. And you know, and so when you kind of When, when, when they, what happens is that everyone has to understand it's when something goes wrong in your organization. And there is a court case, they don't just stop at that court case, they're going to go back, they're going to be talking to people, they want to investigate, really the culture of the organization. And I think the best thing you can do as an HR leader, an organization is create a positive work culture for people to be successful. And, and a lot of that is just doing respect, right and respecting individuals to do their job well, pregnant or not.

Chuck Simikian:

And I'm sitting here, once again, shaking my head agreeing with you, which our listeners can't see. But creating the culture of respect, you can't joke about these things. Just like joking, as a manager, as a business owner, as a leader, Everything you say is magnified. You joke about people being employees being pregnant, like that, Oh, great, we can start firing all the women, just like joking about race, about religion inappropriately in the workplace, it's going to get you in trouble. The bottom line for me with all of this is employers need to find out what the doctor has to say. So if an employee comes to me and says, For men who come in and say, well, we can't have this employee do this, because we don't i don't want to take responsibility. I said, Well, the employee has not asked for an accommodation, the employee. But if the doctor sends a note and says, Hey, this employee can't lift more than 25 pounds or something, then we can start taking action.

John Thalheimer:

I have a question for you. Yeah. So I worked in manufacturing. And one of the things we did in that manufacturing plant, is we clean computer screens. And so we use some harsh chemicals of that. And so I don't remember if this happened while I was there or not. But what would happen if an injured individual became pregnant, and they were going to be around this harsh chemicals? Would it be okay for a supervisor to go Hey, have you thought of this?

Chuck Simikian:

How would you address that? Yeah, I mean, some people might say no, some people to I would say yes, I would make sure that the employee knew that. Yes, I would say yes, I would, I would make sure they knew that. But you've got to be careful not to single out just your pregnant employees or pregnant women, and put them through a special training class. However, I still say, well, you need to sign off on this, you need to sign off that you're using harsh chemicals. And we're only having our pregnant women do this. But I would make sure they were educated. And I would say hey, let me pull the safety data sheets. You may not have thought about this, but let me pull the safety data sheets and let's just read to make sure that you know that this would not affect your pregnancy and and go from there but yeah, sure. I Yeah, one thing I away from that.

John Thalheimer:

Yeah, and I think one thing we did in those meetings, and we would have startup meetings every day, and not every day, but we would pull up the material safety data sheet and go, Hey, so everyone, remember, this is what this is how we need to deal with this chemical, these are the issues that impact so everyone will wear. So hopefully that would trigger in them going, Oh, I'm pregnant, I need to go talk to HR. Right. That way, we kind of set up a reasonable accommodation for that person. I think that would be a good thing.

Chuck Simikian:

Sure. So I don't know if you have more to the story. But I just want to go through just some basics of the other PDA just so our listeners know, number one, you know, you as an employer cannot single out pregnancy related conditions for any medical clearance procedures that are not required of employees who are in similar ability or inability to do their work. That's the first thing. The second thing is me give an example, if an employer requires employees to submit doctor statement concerning their inability to work before granting a leave or paying sick benefits. The employer may require employees affected by pregnancy related conditions to do the same. But you can't be once again inconsistent. So that's the first thing. The second thing is pregnant employees need to be permitted to work as long as they're able to perform their jobs. And the third thing is an employer that allows a temporarily disabled employee, temporarily disabled employee to take disability leave, or leave without pay, you then need to also allow an employee who's temporarily disabled due to pregnancy to do the same.

John Thalheimer:

Great, yeah, I like that you went through that, and kind of help us get it. Okay. So these are the things that we need to be thinking for. Let me just tell you how the story ended. Because it's kind of an interesting ending to this story. So where zero and the Lord is took us to trial, and when the jury rewarded them. Okay, are you ready for this? Yep, rewarded over $185 million?

Chuck Simikian:

No way. Yeah, 1.8 5,000,981 person get

John Thalheimer:

a wild about. So and So what? So what they did, and they did this, and this was a California case. And they were very specific about this, they made a decision to do it in state court, versus going to the EEOC, because in the federal law, there is a limit on to how much you can receive. And so they went there. And so what happened was they ended up going back and forth. So they AutoZone was obviously going to appeal that. And so they ended up settling, we don't know exactly what when they settled. But talking to lawyers and reading what lawyers were saying about this, they assume that she probably got around $10 million, which is not a bad amount. But we'll never know, because she did sign a nondisclosure agreement. And so they kind of walked away from it. But the jury was like, Look, we understand what it's like to have a pregnant worker or to be a pregnant worker, and we deserve, I don't know, $85 million, one company $185 million. And those big numbers usually don't play out. But still, I think we have to be careful, because we don't want to get to that place where somebody takes us to court.

Chuck Simikian:

Yeah, and that's one thing that our listeners need to understand is Civil Rights Act. The 1991 came out and it said, or the Civil Rights Act in the 90s came out, allowed the jury trials, and folks juries are gonna decide, you know, big company versus pregnant woman. Where do you think they're gonna go? Right?

John Thalheimer:

Yeah. And I think they will always go, because if you think about the jury, and who makes up the jury, they're usually going to be employees, and not employers. And so they're going to lean toward the employees, because they're going to want to get back at their boss, for sure. Now.

Chuck Simikian:

So john, as we wrap it up today, what's the one simple thing this employer could have done? To avoid the time, the effort and the money that they spent on dealing with this? What's today's lesson learned? Yeah, and

John Thalheimer:

I want to say it's really simple, right? I want to say, Oh, they should have done this right. And, you know, jokingly, like, they should just fire that manager. But I don't think in this case, it was a manager's issue. I think it was a cultural issue. And I think they You need to address it. I think AutoZone needs to go back and go, how are we treating the female employees at our workplace, including the pregnant workers? Because it was obvious in the story that she was treating being treated negatively, even before she got pregnant. And so I think going back and looking at that becomes really important for that company and go, Okay, what is this? And sometimes I think, when something comes up like this, we stop and we just solve the problem, oh, well, this is happening, because we're going to solve the problem. But if we don't look at the bigger picture, I think in this case, you were going to make a mistake. And so going back and looking at the bigger picture and doing an investigation going, what's really going on organization, what do we need to do? And I think to your point earlier, bringing that training and introducing everyone to that becomes really important. How about you? What would be your one thoughts?

Chuck Simikian:

I guess my one thought would be employers, keep in mind that term that I use benevolent discrimination, you've got to be consistent. And you can't provide benevolence, see, just because you think you need to do it, you need to follow the law. JOHN, any other final thoughts or resources you can share with the listeners? Yeah,

John Thalheimer:

so I just if you are pregnant and think you're being discriminated against, I want to give you two organizations you should reach out to number one is a center for work life law. And so they work on pregnancy cases and Pregnancy Discrimination. And then the other one is a better balance. They do the same thing. Not so good. They both have websites who go check them out one center for work life law, and the other one has a better balance, and I think they're going to get you the help you need. You should not be being discriminated just because you're pregnant.

Chuck Simikian:

Awesome. Well, this is another great story, folks. Thanks for joining us. Once again. Today's episode was brought to you by get HR help. Now if you're an employer, and you need help with any of this, get HR help now.com. They are an HR consulting firm that can help you avoid the mess that we saw. AutoZone get in today. Thanks, everybody.

John Thalheimer:

Thank you, everyone. Welcome to the HR stories Podcast, where there is a lesson in every story. If we listen well. Stories help us learn and teach us ways to act. Each year, john tall heimer and Chuck Simikian deliver 1000s of seminars around the country, business owners, executives and HR professionals discussing the fundamentals of human resources, best legal practices and risk reduction activities for organizations. This podcast allows us to dig deep into the Human Resources experience, and see where businesses go wrong. Each episode we share a different story where a company missed the mark and then will provide recommendation based on our years of working in the Human Resources field. Sit back, listen, learn and act. Welcome to the HR stories Podcast, where there is a lesson in every story.