Moms are still often laid off while on parental leave, pushed out of workplaces and subjected to stereotypes about their competency. But with few legal protections, attorneys say most cases go unreported.
Originally published by The 19th
Tori Needels had been back from parental leave for two hours before she was laid off.
The conversation was practical: It was a mass reduction, more than 40 people. It wasn’t performance related. From an operations standpoint, it was what needed to be done.
She nodded at the Zoom screen, thanking them for the opportunity to work there. Then she logged off and hugged her 3-month-old.
Some part of her had expected this. It was January, and the tech industry had been bombarded with layoffs since last summer. More than 230,000 tech jobs have been eliminated in the past year. While on leave, Needels, who worked in marketing in Boston, even joked with her coworkers about whether she’d have a job to return to.
But other things nagged her. A week after Needels went on leave, a new person stepped into the role of her supervisor, someone she never got a chance to know well and who later helped choose who to lay off. Needels’ baby was exclusively breastfed, and she’d talked to HR while on leave about how they could accommodate her for an important staff trip in another city that was coming up. The plan had been for her to join virtually while everyone else was in person. A thought had taken root in the back of her mind: “Am I risking my career by putting my family first, just for feeding my baby?”
When she was laid off, Needels, who signed a severance agreement that barred her from naming her employer, wondered how much those elements had played a part in her inclusion in the layoffs.
“When you have the choice between two people, are you going to choose the person who has the ability and the flexibility to work overtime for your company, that isn’t going to be taking two hours out of their workday to pump, that doesn’t have other priorities occupying their mind and time?” said Needels, 34. “Are you unconsciously choosing that person? I think yes. I think a lot of companies are in that position, and I’m not faulting them for it. I just think it’s that unconscious bias.”
For as long as women have been in the workforce, they have faced some element of bias at work. It’s what’s helped keep the pay gap stagnant for 20 years. It’s what stops women from reaching leadership positions. And it’s what, at times, has pushed primarily moms from the workforce. It’s called the motherhood penalty.
More often than not, it manifests in subtle ways. But increasingly, it’s much more overt. At the federal level, pregnancy discrimination lawsuits have been rising steadily since 2016, according to a 2021 analysis by Bloomberg Law.
“I once heard that bias against mothers is sort of the open secret [in workplaces], and I thought that was really apt,” said Liz Morris, the deputy director of the Center for WorkLife Law and an attorney who specializes in caregiver discrimination.
The wave of recent tech layoffs have drawn awareness to the subject. Tech workers were laid off while on leave or after just returning — and, in at least a couple of cases, while they were in labor. Companies have had differing policies around whether they’ll pay out the rest of employees’ leaves; Google, for example, isn’t, and a group of 100 people are pushing back against the policy.
Daphne Delvaux, an attorney who specializes in workplace discrimination cases brought by moms, said the pandemic has driven a rise in lawsuits. She’s recently handled a number of cases around parents working remotely with children at home, including one well-known 2020 case of a mother who claimed she was fired because her child was making noise during business calls. The case was ultimately resolved through mediation.
“When there is a lot of pressure at work, that’s when discrimination gets worse, because the employees with restrictions are always going to be the ones that pose a problem to the employer,” Delvaux said.
The situation has dredged up a lot of questions about why American workplaces are still failing to support caregivers. Should it be legal to lay someone off while on leave? Why is discrimination still so rampant?
And, critically: If so many workers face this type of mistreatment every day, why has so little been done about it?
Much of what mothers face at work falls into a legal gray area, Morris said. There is no federal law that specifically prohibits caregiver discrimination. Instead, attorneys work to prove that some form of sex discrimination has taken place. A lot of it has a lot to do with timing: Was the worker fired or laid off after disclosing a pregnancy? After returning from leave? Was the person treated differently after they announced a pregnancy?
In mass layoffs like those in the tech industry, that’s a hard standard of proof. But there are many cases where employers are very vocal in their discrimination without realizing it, said Melinda Koster, an attorney who specializes in workplace discrimination. Knowledge of pregnancy laws is limited — it’s common for employers to change workers’ job responsibilities when they return from leave, for example, something that would constitute discrimination. They’ll say things like, “You probably have your hands full at home,” “We can’t keep covering for you,” or “It just makes more sense for everyone if we just take you off this project.”
“I’ve represented clients in a range of cases, and I’ve often been stunned about how overt the employer tends to be,” Koster said. “A lot of supervisors are laboring under the idea that they’re doing the employee a favor. The employee might not be asking for it, but they’re saying, ‘You should be with your family.’”
But, if any of this is recognized as discrimination in the first place, there are power dynamics in workplaces that make it difficult for workers to exercise their rights, speak up about pregnancy discrimination and take cases to court. Low-wage workers, the majority of whom are women of color, are the most susceptible because they rely on their income to support their families, and so they are less likely to confront their managers or have the resources to hire a lawyer. Workers who have just returned from leave are vulnerable as new parents and might sign a severance agreement — as several workers The 19th spoke to for this story did — that limits their ability to speak out if it means ensuring financial security for their children.
Put together, it breeds a culture of silence.
Melanie Call first experienced what she thought might be pregnancy discrimination in 2018, when she was passed over for an annual raise. She’d been working at Supplemental Health Care, a health care staffing company, out of Salt Lake City, Utah, for more than a year and had already received a pay bump, but that year she was pregnant with her second child. She was told that she’d missed out on the raise because she was just shy of the number of days she’d need to qualify for it, in part because of the parental leave she was about to go on.
Call was confused by that explanation — her performance feedback had been positive — but she didn’t push back.
When she was pregnant with her third child in 2020, she decided to wait to disclose the pregnancy to her direct supervisor and team until 30 days out from her due date — the minimum legally required time under the federal Family and Medical Leave Act (FMLA). She had cleared that with HR, she said.
“I just wanted to be treated fairly and equally,” said Call, 36. And she wanted to ensure disclosing her pregnancy wouldn’t impact her pay. At the time, she had one child in elementary school and another in day care, but she was planning on having her infant at home with her because she couldn’t afford the cost of a second child in day care — Call was looking at potentially $27,000 a year in child care costs between the two younger kids.
Call, who worked remotely, knew by then that her manager may not welcome the news of her pregnancy. He had already made several comments about how having her kids in the background of Zoom meetings and at work events gave off “a bad impression.”
When she did finally disclose her pregnancy, Call remembers her manager telling her he felt hurt, like she had broken his trust.
“I tried to explain to him my reasons, and he wouldn’t listen. He just said, ‘We have bigger problems if you think telling me this late is going to help your career,’” Call said.
In the month before her leave, she worked to set up a transition plan, but her boss questioned it openly in meetings with her colleagues. Carlton Lampley, who worked closely with Call at the time, said the tension in the meetings was palpable. The rest of the team approved of her transition plan, but Call’s manager appeared to be picking on her purposefully.
“He just had a chip on his shoulder for some reason for her being pregnant,” Lampley said. “Everybody, including my boss, knew she was being singled out.”
Call’s former supervisor, Rodney Ekstrom, denied that he’d ever mistreated Call or withheld a raise on account of her pregnancy, according to a statement provided by Brett Johnson, the Supplemental Health Care vice president of human resources. Ekstrom is still employed at the agency.
“Our internal policies prohibit gender discrimination of any kind or the consideration of pregnancy or parental status in any hiring, promotion, compensation, or dismissal decisions, and we take this commitment very seriously,” Johnson said in the statement.
Johnson added, however, that the company had a policy against employees taking on child care during core company hours.
When Call came back from her leave in September 2021, she said Ekstrom was distant and cold. He told her he had not forgiven her for disclosing her pregnancy when she did, Call said. At the time, Call was working while caring for her infant at home in violation of the child care policy, but she said her managers told her “as long as you get stuff done, you’re OK.” She tried several times to ask for a raise that would have covered day care for her baby, she said, but was denied.
In November 2022, Call quit. She’s filed a case with the Equal Employment Opportunity Commission (EEOC) and is seeking to take legal action. Though she has applied for jobs since leaving, she has focused mostly on regaining time with her kids.
The experience reshaped her priorities around work and parenting, she said, and what to look for in a workplace.
“I want to parent out loud,” she said, “and not be ashamed anymore.”
The economic challenges that accompany caregiver discrimination follow people across their careers. Women experience a much narrower pay gap early in their careers that then grows as they age — the inflection point is around the age they start to have children. In 2022, women 25 to 34 earned 92 percent of what men earned, a gap that widened to 83 percent for women 35 to 54 and to 79 percent for women 55 to 64, according to a recent study from the Pew Research Center. Men, instead, see their pay increase when they have children in what’s known as the fatherhood premium or bonus.
Those impacts are even more severe for low-wage workers, disproportionately women of color, who have even fewer protections against discrimination under current law. Only 56 percent of all workers are eligible for the protections under the FMLA, which guarantees that workers have to be reinstated in the same or equivalent position after taking leave. Part-time workers are excluded from FMLA, so are workers in companies with fewer than 50 employees or who have been at a job for less than a year. Only about 1 in 3 low-wage workers are eligible for FMLA, a smaller share than higher-wage workers because the conditions of their employment often make them ineligible — they are more likely to work part-time, be at a job for less than a year, or are more likely to work as contractors who are exempt from the law’s protections.
And even when low-wage workers have access to paid leave, studies have found that they might not take it because either they don’t want to be perceived as less committed to the job or have witnessed or experienced retaliation for taking family leave.
Catherine Albiston, a professor of law and sociology at the University of California, Berkeley who helped conduct that research, said that the solution, in her view, is to make leave a federal benefit rather than one up to employers. The United States is one of about a handful of countries in the entire world that hasn’t adopted that system.
“The key is to separate the social insurance from the employer’s control and from employment entirely, because that gives employers that are unwilling to comply with the law a lot of leverage over their employees,” Albiston said.
That could help prevent the kinds of situations where people will work through pregnancies or try to hide them. It’s also common to hear stories of employers who tell low-wage workers to reapply for their jobs once they’ve had their baby, said Elizabeth Gedmark, the vice president of A Better Balance: The Work & Family Legal Center.
One person A Better Balance worked with, who wished to remain anonymous over fears it would affect her job prospects, told The 19th she went on leave from her job as an HVAC technician late last year expecting to return to work, but later learned that her employer had actually fired her. When she called to inquire about it, her bosses said they’d rehire her once she was back. Instead, she took a lower-paying job that had more reliable hours.
“A lot of employers are sort of operating under this assumption that they’re not going to have to face consequences because the barriers to vindicating rights is high for a lot of workers,” said Laura Narefsky, counsel on the education and workplace justice team at the National Women’s Law Center.
The EEOC, the federal agency tasked with enforcing anti-discrimination laws, has struggled with limited funding for years that has constrained its authority, said Sharita Gruberg, vice president for economic justice at the National Partnership for Women and Families.
“You can have these protections, but if there aren’t enough people to investigate your complaint, to file a lawsuit against your employer, the potential of these protections is not going to translate as strongly into people actually being able to have the accommodations they need to face discrimination because they are pregnant,” Gruberg said.
Sharyn Tejani, associate legal counsel with the EEOC, agreed that “resources are always an issue.” The agency is now working to draft up regulations for a new law, the Pregnant Workers Fairness Act, that could help make a dent in future caregiver discrimination suits. After a public comment period, the final regulations will be published at the end of December, Tejani said.
Last fall, Congress passed the Pregnant Workers Fairness Act with strong bipartisan support, helping to close a loophole in existing pregnancy discrimination law around the responsibility employers have to provide reasonable accommodations to pregnant workers. Previously, workers had to prove that someone else who was similarly situated in their workplace had received an accommodation and they had not, a hurdle that was difficult to clear for many workers. The new law goes into effect on June 27.
Laws like that could help erode the cultural norms and stereotypes that have underpinned discrimination cases for decades, experts said.
“Laws convey a kind of authority and legitimacy and a democratic consensus that can overcome subterranean, subconscious assumptions,” Albiston said. “They convey, ‘Oh yeah, it’s really normal to combine work and family, and here’s a structure for how to do it.’”
Advocates are also hoping to see more support for laws that specifically address caregiver discrimination, like a bill that Sen. Cory Booker, a New Jersey Democrat, first proposed in 2020 that prohibits employers from discriminating against those who have family caregiver responsibilities. That bill has not yet been reintroduced this session because Booker is looking for a bipartisan partner, according to his office.
So far four states — Alaska, Delaware, Minnesota and New York — have caregiver discrimination laws in the books, as well as more than 195 local jurisdictions, according to Equal Rights Advocates, a nonprofit gender advocacy organization.
If nothing else, it’s likely the pandemic will at least play some role in restructuring workers’ relationships to their employers after three years that spotlighted how tightly work and care are intertwined.
“The stage has been set for a different future of work for people who are mothers and caregivers and parents,” Noreen Farrell, the executive director of Equal Rights Advocates and an attorney who specializes in sexual harassment and gender discrimination. “The only block to that success is longstanding bias.”
For Dana Buchman, chief marketing officer at Burke Williams Day Spa in California, the pandemic helped make the case for the kinds of accommodations her employer could give. She became pregnant with her first child in April 2022, and her doctors recommended she work remotely because she had a high-risk pregnancy.
Buchman, then 39, had helped navigate Burke Williams through the pandemic storm to financial success, all while working almost entirely remotely for 2.5 years.
“You have played a key role in the fact that after multiple closures, we now find ourselves re-opened AND prospering,” her boss Bill Armour wrote to her in a Christmas 2021 letter. “It has been a blessing for me that our paths have crossed.”
In May, Buchman disclosed her pregnancy and requested to work remotely for the duration of it. Additionally, she asked to work from Turks & Caicos for three months from late June through September 2022. She and her partner, who is Haitian, believed she’d be at lower risk for the coronavirus than in Los Angeles, and he could be closer to home.
That’s when her boss’ tone changed.
“They just grilled and berated me and they said things like, ‘You really need to think about what you want after the baby, if you even want to come back to work,’” Buchman said. At one point, Armour told her, “I’m sure it feels like we’re grilling you,” according to a demand letter from her attorney to Burke Williams.
Armour believed her working remotely was “unequal to in person,” according to a June 13 email. He decided to allow her to work from Turks & Caicos for three months, but wrote in the email that there would be a 30 percent salary reduction — though no reduction in responsibilities — as a “personal accommodation from the company to facilitate this request.” Buchman replied that she believed the pay cut was retaliatory and illegal.
She felt blindsided. Her good working relationship had suddenly evaporated. “The amount of immense stress I felt during that time was unmatched,” she said.
Two days later, Buchman suffered a miscarriage.
“Knowing it’s a high-risk pregnancy, knowing we fought so hard to get here, it was so wanted, and then for me to say, ‘Here is my boundary, here is what I need’ … It felt like I was going through battle — I didn’t want to fight,” Buchman said. “And then the very thing I was trying to protect against … it happened anyway.”
She was fired on July 25 after Armour said her time in Turks & Caicos had not actually been approved. Armour did not respond to multiple requests for comment.
Buchman declined a severance agreement that would have blocked her from discussing the details of her experience. She’s still considering whether to pursue further legal action.
Still, she’s glad she didn’t listen to all the doubts on her mind about whether she should have just acquiesced to keep her job. “In the end, clearly I was not values aligned with the company and with the founders and I learned how to stand up for myself and for my family,” Buchman said. “I really feel like I got some mom strength.”
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