A new state law aims to end the days of women having to choose between a healthy pregnancy and work, but has it been effective?
Bene’t Holmes was four months pregnant when she had a miscarriage at work. It happened the day after her manager at a Chicago Walmart denied her request for lighter duties. According to her account, a doctor had told the then-25-year-old that she should no longer lift 50-pound boxes as her job demanded. But she needed the job.
She told her story in a July 2014 blog post for the United Food and Commercial Workers International Union. A month after she wrote that post, the Illinois General Assembly approved a measure that requires all employers provide reasonable accommodations for pregnant workers or those who have childbirth-related conditions. The law came too late to protect women like Holmes, but its backers hope it will prevent other women from facing the same wrenching choice: Put your unborn child at risk or lose your job?
Walmart did not respond to a request for comment on Holmes’ situation, but it is far from the only company accused of ignoring pregnant employees requests for accommodation. “The type of issues she was having — those are exactly the type of issues that this law is designed to address,’’ says Amy Meek, an Illinois ACLU attorney specializing in reproductive rights. “The issue of pregnancy accommodations is really most crucial for workers who do manual labor, who do hazardous or strenuous duties and particularly that involve heavy lifting. And those are often the jobs, unfortunately, that are lowest paid.”
Illinois is one of at least 16 states to adopt laws that require workplace accommodations for pregnant women. Its Pregnancy Fairness Act went into effect in January 2015. Advocates agree that the required workplace postings of details about the law and process for filing complaints have raised awareness among both employees and employers. For example, annual charges of sex discrimination related to pregnancy made to the Illinois Department of Human Rights climbed from 80 in Fiscal Year 2014 to 125 in FY 2015, when outreach over the law began. The law went into effect midway through FY 2015. So far for FY 2016, which ends on June 30, there have been 96 cases. But some say there’s still work to be done, particularly in addressing the amount of time it takes to resolve cases.
“Throughout my years, I heard horror stories from women that they were in fear of losing their jobs if their pregnancy was known,” says Chicago Democratic Rep. Mary Flowers, who sponsored the law. She says she also heard from women whose requests for accommodations were denied. “So they had to make a decision either quit their jobs . . . or they were fired from their jobs for being guilty of being pregnant. I heard all kinds of horror stories, and finally I’d just heard enough and decided to do something about it.”
Some of those “horror stories” were told when testimony was given in legislative hearings on the bill. But some of the most atrocious examples, Flowers says, came from a group of women from United Airlines. Longtime baggage handler Ella Brown helped recruit them to share their experiences. Brown advocated for a Pregnancy Fairness Act in Maryland when she worked there after learning of a coworker’s miscarriage. She is currently involved in an unrelated sex and race discrimination claim against the United Airlines. After Brown moved to Chicago and learned about Flowers’ legislation, she papered walls at the United area of O’Hare International Airport with fliers calling for women to testify in favor of the bill. The women told Flowers their stories but did not testify before legislative committees because they want to remain anonymous.
“It was heart-wrenching,” Flowers says. “One woman talked about how many miscarriages she’d had because she had to pick up these heavy bags and throw them, and if she tried to complain about it she was threatened with her job being lost.”
United Airlines spokesman Charles Hobart declined to comment on these specific cases, in part because they cannot be confirmed as long as the women choose to remain anonymous. He says the airline looked into claims of women having miscarriages linked to their work duties and was unable to find evidence of that happening to United employees.
Asked whether his company made changes in policy because of the Illinois Pregnancy Fairness Act, Hobart says, “‘We already had processes in place we were able to engage when an employee notifies the company of her condition and restrictions.” If an employee doesn’t tell the company of the need for accommodations, nothing can be done, “so it’s important that the employee … let us know. And when they do, we’re going to work with them and enable them to continue working for us, in a different role likely.”
Illinois’ law requires employers to provide reasonable accommodations to pregnant employees and job applicants. It provides for reinstatement of pregnant employees returning from pregnancy-related absence and has a requirement to provide an equivalent post at equivalent pay without loss of seniority or benefits, says Matt Lango, who is president of the Illinois chapter of the National Employment Lawyers’ Association.
The General Assembly was unanimous in its passage of the Illinois Pregnancy Fairness Act, and major business organizations, such as the Illinois Chamber of Commerce and Illinois Manufacturer’s Association, took no stance on it.
“Employers are not required to do anything for a pregnant employee that's going to be unduly disruptive or unduly expensive. They’re not required to fire their employees,” the ACLU’s Meek says. “They are not required to promote somebody who is unqualified. The law does not require them to do anything any differently than they would do for other similarly situated employees. So it really, in a lot of ways, helps employers by making the expectations and the framework for the conversation clearer, and everybody benefits when they understand better what their rights and obligations are under the law.” Still Meek says small businesses in particular need to be informed of the requirements and become aware of how to handle them. Unlike many workplace regulations in the state, there is no exemption for small businesses. “This law does apply to all employers who have at least one employee in Illinois,” Meek says. “And so particularly we know that smaller employers may be less informed or maybe more concerned about what this means for them.”
Protections for pregnant women in the workplace existed before the Illinois law, but it expands upon them and clarifies what is required. A federal law adopted in 1978 banned discrimination on the basis of pregnancy but did not spell out the need to provide accommodations the way laws like the Pregnancy Fairness Acts do. The Pregnancy Fairness Act is also an update of the 1980 Illinois Human Rights Act. It covers areas of potential discrimination such as sex, which would cover pregnancy.
The U.S. Supreme Court recently weighed in on the case of a former Maryland UPS driver, Peggy Young, who sued her company after she was forced into unpaid leave after she asked for accommodations to reduce the amount of weight she had to lift.
In the case of Young v. UPS, Vicki Shabo, vice president of the Washington, D.C.-based National Partnership for Women & Families, says the court ruled that “the language of the Pregnancy Discrimination Act is clear in that workers need to be treated the same when they are similar in their ability or inability to work.”
UPS changed its policies even before the Supreme Court made its ruling. Those policy changes went into effect in time to help an Illinois woman represented by the ACLU who had been in the same situation as Young. That woman, who the ACLU declined to name, retuned to work and was granted a less physically demanding job during her pregnancy.
UPS’ change in policy coinciding with the enactment of the Illinois law was not deliberate, Susan Rosenberg, UPS public relations director, wrote in an email.
“UPS changed its policy to accommodate pregnant workers with special work assignments because the company recognized that state law, regulatory guidance and the general work environment in the U.S. has changed.”
Under Illinois’ Pregnancy Fairness Act, a woman who has experienced
alleged discriminatory action has 180 days to file a complaint. The Illinois Department of Human Rights takes up the charges and verifies whether the information is correct. The department tries to get the employer and employee to work out the issue through mediation. If mediation is unsuccessful the department has a year to investigate, unless the parties agree to an extension.
According to the department, if it makes a “finding of lack of substantial evidence of discrimination, it will dismiss the charge.” A woman whose case has been dismissed can ask the Illinois Human Rights Commission, which is separate board that resolves discrimination complaint, to review her case, or she can sue in circuit court.
The resolution to a complaint depends on the violation, Lango says. It could be allowing the worker to have water, longer break periods or more bathroom breaks. If a woman can show she was terminated because of pregnancy or a pregnancy-related condition, she could get back pay, be reinstated and/or get compensatory damages for things such as emotional distress or other losses.
But because women are pregnant for nine months, resolving complaints to make the workplace safe for them is a time-sensitive issue. “All of it means nothing if a person cannot navigate though the system more quickly,” says Chicago labor attorney David Heilmann.
He has a client whose story makes his point clear. “I represented a woman who went in to her boss to say that she was expecting, and she was very excited about it as any new mom would be. It was her first child. She’d had good reviews for years, and she had actually been promoted not long before that. And when she told him, he said, “Things are going to change around here,’” Heilmann says. “She was eventually fired after they tried to paper up her file with bogus charges, and that’s not uncommon that employers will do that — they can try to avoid a lawsuit. She files suit before the Illinois Department of Human Rights. The case proceeded to trial, and it was a one-day trial and it took five years to receive the verdict from the administrative law judge.” Heilmann’s client won the case, but by that time, the company had gone out of business. “She’d been discriminated against. She had lost a significant amount of income and then ended up empty-handed because the system failed her.”
In response to Heilmann’s concern about the length of time involved with the process, Mike Theodore, spokesman for the Department of Human Rights, wrote in an email: “The Illinois Department of Human Rights is committed to a thorough process of investigating charges of unlawful discrimination.”
Heilmann sees the Illinois law as progress, but he says women should not have to wait years to have their complaints resolved. “While it's great to have new laws, and I think this is a good law, you have to be able to actually receive a verdict in a timely manner,” he says. “I don’t know that we are there yet.”
Since the law passed, the department and advocates have been active in getting the word out in the hopes of making the issue of accommodations clearer for workers and their bosses. It is uncertain whether the length of the process or the outreach surrounding the law has had an effect on how many cases are resolved. The Department of Human Rights reported that 11 cases were settled in FY 2010 as opposed to 40 in FY 2015, which ended June 30 — seven more cases have been settled since then.
United baggage handler Ella Brown, who advocated for the Pregnancy Fairness Act by putting up fliers at O’Hare to recruit other supporters, posted new fliers after the bill became law. “When it passed, I put it up at every women’s room we have at United.” She says she’s determined that her co-workers know their rights.