By SARAH E. NEEDLEMAN
The Wall Street Journal

Entrepreneurs focused on growing their businesses are sometimes caught off guard when employees start growing their families.

Sendero Business Services LP, a management-consulting firm in Dallas, wasn’t prepared when a manager became pregnant in 2007 and asked what its maternity-leave policy entailed, says co-owner and partner Ruth Farrar.

“I said, ‘I’ll get back to you,’ ” she recalls replying to the woman, because the small firm, then three years old, didn’t yet have one. She says Sendero then quickly decided to give the expectant mother two months of paid time off for maternity leave, plus other benefits.

“Our impulse was to be too generous,” says Ms. Farrar, adding that two more female employees came forward a month later announcing they were also pregnant.

When starting a small business, planning ahead in case an employee or an employee’s spouse becomes pregnant isn’t top of mind for many owners. But by taking the time to carefully research legal obligations, insurance options and other key issues early on, entrepreneurs may be able to avoid making costly mistakes.

“You don’t want to unknowingly grant something you don’t have to grant,” says Jay Zweig, an employment attorney and partner in Phoenix for law firm Bryan Cave LLP.

For example, he says business owners should be aware that under the federal government’s Family and Medical Leave Act, employers with less than 50 workers are not obligated to give paid or unpaid time off to pregnant workers.

Meanwhile, state laws vary on whether employers must continue to compensate workers while on maternity leave, says Mr. Zweig. For this reason, he cautions business owners to consult with an employment lawyer when creating a maternity-leave policy, rather than use information posted to the Web or what a former employer gave them as a guide.

Another piece of advice for business owners: Find out if you can tap your insurance provider’s disability coverage.

Tammy Wise, owner of Wise Group, a marketing firm in Cleveland, says she didn’t realize she could’ve done that when she agreed in 2004 to give her nine employees —all women—up to 12 weeks off for maternity leave at 70% of their salary for eight of those weeks.

Ms. Wise later expanded her coverage, but learned a valuable lesson this past July when her provider changed its benefits policy. She failed to read the new version carefully and when two employees took maternity leave, she discovered that coverage had dropped to four weeks from six. Had she paid closer attention, she says she would’ve adjusted her firm’s policy in this area accordingly.

Small-business bosses may also want to put some thought into how they treat expectant mothers on their staffs. Consider, for example, that last year nearly 6,200 pregnancy-discrimination complaints were filed with the U.S. Equal Employment Opportunity Commission. Roughly 1,500 resulted in settlements totaling $16.8 million, the government agency reports.

Business owners may be found guilty of pregnancy bias for failing to provide an expectant worker with accommodations deemed reasonable under some state laws, such as time off for doctor visits, says Jack Tuckner, a founding partner with Tuckner, Sipser, Weinstock & Sipser LLP, a boutique law firm in New York specializing in women’s rights in the workpace. Others may be held accountable for treating pregnant staff members with hostility or for refusing to let them work.

“You can’t tell a woman to take time off because she’s pregnant if she’s capable of working and wants to,” says Mr. Tuckner, even if the owner’s intentions are to benefit her well-being. “Legally she can work until her water breaks.”

Finally, business owners may also want to consider ahead of time how they’ll keep their firms operating smoothly while one or more employees goes on maternity or paternity leave. Hiring freelance talent may be an option. Another may be to divide the absent employees work among remaining staffers.

But what if the business owner is the one going on leave?

James Reinhart, co-founder of ThredUp Inc., a six-month-old Web company in Cambridge, Mass., is currently grappling with this issue. His wife, a schoolteacher, is due to have their first child in July.

“The demands of a start-up mean that I can only take a few days off,” he says. “Then I have to get back at it.”

ABC News reports on Jennifer Paviglianiti’s charges of discrimination with the United States Equal Employment Opportunity Commission (EEOC).

Jennifer Paviglianiti vs. Cafe Royale

Bartender in Topless Bar Says She Was Discriminated Against for Being Pregnant
By MARY KATHRYN BURKE and BRENNAN MCCORD

When Jennifer Paviglianiti, 29, of Centereach, N.Y., discovered she was pregnant, she hoped to wait until the three-month mark to tell her boss, John Doxey. But workplace gossip got to him first.

Once Doxey heard the news, Paviglianiti says, he immediately showed he had doubts about her work status.

Now, Paviglianiti says, she has been unfairly let go from her bartending job at the Cafe Royale gentlemen’s club. She has filed charges of discrimination with the United States Equal Employment Opportunity Commission (EEOC).

The charges, which were received by the EEOC on February 2, say the “cause of discrimination” is based on “sex, retaliation, perceived disability, and pregnancy.” In the charges, Paviglianiti says she “encountered continual blatant discrimination,” and that Doxey told her customers are “not coming in to see sexy bartenders that are pregnant and bulging out.”

Pushed Out?
“I had a bad feeling from the beginning,” Paviglianiti tells ABC News, “I know John and once you’re on his bad side, you’re on his bad side. Two weeks before they took away my shifts he said, ‘I don’t see you making it through Thanksgiving.’”

Paviglianiti says she knew her pregnancy would put her on Doxey’s bad side. She says Doxey was making her job increasingly incompatible with pregnancy, forcing her to clean the bar with ammonia instead of cleaning fluids that are considered safer for expectant mothers.

“He also put an extra bartender on the shift, severely cutting back what I would bring home at the end of the night. He was doing everything he could to try to make me leave.”

Paviglianiti looked up pregnancy discrimination lawyers and began keeping a tape recorder in her purse at work.
“I researched online how hard it is to prove discrimination,” Paviglianiti says, “I knew if anything were to happen I would at least have a tape. And I caught him saying things out loud so he couldn’t deny it. I made sure he said that I wasn’t in trouble and my registers aren’t short.”

The Tape: Smoking Gun?

Jennifer Paviglianiti :: “I just want him to learn his lesson – he owns a business that is 90 percent women – somebody is going to get pregnant eventually. I shouldn’t have to choose between the job that pays the bills and my child. The car companies don’t care if I get laid off. If he gets away with it then a maybe anyone can get away with it.”

“A pregnant woman behind the bar, in a topless bar, I’m beginning to think that it’s hurting the registers and you’re incapable of fulfilling all of your job duties.” Doxey says on the tape released to ABC News.

“I’m not saying that you’re not trying, OK, but number one, I don’t want nothing to happen to you…they’re not coming in to see sexy bartenders that are pregnant that are bulging out, I’m sorry…”

On the tape, Paviglianiti argues with Doxey to let her stay on the job, saying she is the highest-grossing bartender at the club. Doxey agrees she is doing well but says, “Each week you’re getting bigger and bigger, and uh, more unsexy, unsexy, OK….I’m not saying that you’re not ringing the register, I just said there’s all different things and aspects, customers don’t wanna come in and see a pregnant woman behind the bar. Why can’t you get that through your head, you’re not getting it.”

Paviglianiti says once she got Doxey on tape, she knew she had enough evidence to bring a case. “I went online and typed ‘women’s rights,’” she says.

That search is how Paviglianiti found attorney Jack Tuckner.

Tuckner says Paviglianiti’s decision to tape-record Doxey was both prudent and prescient.
“This kind of thing happens all the time,” Tuckner tells ABC News, “It’s usually difficult to prove. But here we have a smoking gun. It was blatant.”

Recording a conversation, as Jennifer did, is completely legal in the state of New York, falling under the one-party consent statute which simply means that one party to the conversation must have knowledge and give consent to the recording.

After the Audio

Although Paviglianiti was prepared to be pushed out, she did not believe she would be let go until October 28, when she taped their conversation.

“My jaw hit the table,” Paviglianiti says, “I didn’t think he was going to put me in that position.”
After seeking counsel and confronting Doxey with her claim, Paviglianiti was hired back at the club, but this time as a cashier, making less than half of what she made at the bar. She is a certified New York State teacher, but she has been unable to find a teaching job. When she became pregnant, she needed income more than ever.

“I need to work,” Paviglianiti says, “I need a job. And some money is better than no money.” Paviglianiti says after her daughter is born next month, she hopes to find work at a day care or nursery school. But today, she continues to work the overnight cashier shifts.

Fired for Being Pregnant…Not a New Trend

Jennifer Paviglianiti is not the first woman to file a discrimination lawsuit after being fired for being pregnant. Just this year, Margaret Gibson of Atlanta was awarded $80,000 in a settlement after she claimed that U.S. Security Associates, Inc. fired her for being pregnant.

In 2007 Amanda Wilson, a waitress at a Hooters restaurant in California, was fired after announcing she was pregnant. She claimed Hooters management cut her work week from five days to one, trimmed her supervisory responsibilities, and finally ended her job completely.

Similarly, Christina Nuss sued the owners of the Scotch & Sirloin restaurant where she worked in Wichita, Kan., for discrimination after she was fired in 2007. Nuss became concerned about how women were being treated at work. The lawsuit claimed that “Scotch management had told this waitress that her pregnancy was unattractive and unappealing to the male clientele of the Scotch, and that it did not fit their image.”

What Now?

When reached on his cell phone about Jennifer Paviglianiti’s claim, John Doxey said he would have no comment.
His lawyer, Robert F. Millman, told the ABC News Law & Justice Unit, “we are not prepared to respond to anything.”
As for Paviglianiti, she says she wants Doxey to admit discrimination.

“I just want him to learn his lesson – he owns a business that is 90 percent women – somebody is going to get pregnant eventually. I shouldn’t have to choose between the job that pays the bills and my child. The car companies don’t care if I get laid off. If he gets away with it then a maybe anyone can get away with it.”

After the baby is born, Paviglianiti says she hopes to get her master’s degree in child care. Tuckner, her lawyer, says he is confident that before long, they will be able to prove their case.

“She stands for all women,” Tuckner says, “Why do we have a society that says you are less than because you are growing a baby inside you?”

Litigation aimed at bias against U.S. workers who care for children or aging parents has increased 400% in the past decade and the average verdict now tops $500,000, WorkLife Law says.  Cases have been brought in every state and every industry, and against large and small employers.  Employees prevail in about half of the cases – significantly more frequently than in other types of employment cases.
 
Employer actions that have resulted in verdicts include:
 
·         Selecting an employee for layoff because she was pregnant;
·         Denying a promotion to a female employee because she was the mother of young children;
·         Firing a male employee who was on approved  leave to care for a foster child;
·         Instituting production quotas that could not be met by a male employee on intermittent leave to care for his seriously ill parents, and then firing him for not meeting the quotas.

“Laws are broken when supervisors make assumptions about the value of employees based on their family caregiving responsibilities and then take negative personnel actions, regardless of the employees’ actual performance,” said the report’s author, Cynthia Thomas Calvert, Deputy Director of WorkLife Law. 
 
“Fortunately, employers can protect themselves against these lawsuits,” Calvert continued.  “A good prevention program includes training supervisors so they can recognize the assumptions and be prepared to react in a more appropriate way.” 
 
The report, Family Responsibilities Discrimination: Litigation Update 2010, is based on an analysis of over 2100 cases.  Most cases reviewed were related to pregnancy and maternity leave (67%).  Other cases related to elder care (9.6%), care for sick children (7%), care for ill spouses (4%), time off for newborn care by fathers or adoptive parents (3%), and care for a family member who has a disability (2.4%). Most cases (88%) were filed by women; 12% were filed by men. 

The report is available on WorkLife Law’s website, www.worklifelaw.org.
 
Family responsibilities discrimination is discrimination against employees who have family caregiving obligations, such as pregnant women, mothers and fathers of young children, and workers with sick or aging parents.  Some state and local laws prohibit this kind of discrimination outright.  Employees also use a variety of state and federal anti-discrimination and family leave laws to sue their employers.  Many of the cases studied for the report involved the use of the federal sex discrimination law, Title VII of the Civil Rights Act of 1964, and the federal Family and Medical Leave Act. 
 
In 2007, the U.S. Equal Employment Opportunity Commission issued enforcement guidance about caregiver discrimination that detailed how Title VII protects employees from discrimination based on family responsibilities.
 
About the Center for WorkLife Law
 
The Center for WorkLife Law is the leading authority on family responsibilities discrimination. It is a nonprofit research and advocacy organization that works with employers, employees, attorneys, legislators, journalists, and researchers to identify and prevent employment discrimination against workers with family caregiving obligations.  WorkLife Law is based at the University of California Hastings College of the Law in San Francisco and is directed by Joan C. Williams, Distinguished Professor of Law.  It was founded as the Program on Gender, Work & Family at American University Washington College of Law in 1998.  It is supported by research and program development grants, university funding, and private donations.  More information is available at its website, www.worklifelaw.org.

Ms. Paviglianiti filed charges of discrimination with the United States Equal Employment Opportunity Commission. Listen to the discriminatory statements captured on audiotape (click here to listen to the audio). Please find the abridged transcript to the audio below.

While working women routinely suffer discriminatory treatment in the workplace due to pregnancy and the inevitable maternity leave, rarely is the discrimination this blatant, and rarely are the corporate decision makers this honest in their assessment of the perceived diminished capacity of pregnant employees.
 
Plaintiff’s counsel is the law firm of Tuckner, Sipser, Weinstock & Sipser, LLP, a full service Women’s Rights in the Workplace law boutique in NYC.  For more information about the case, contact Jack Tuckner, Wiliam Sipser or Antonia Donato at 212.766.9100, or at jtuckner@womensrightsny.com, wsipser@womensrightsny.com or adonato@womensrightsny.com, respectively.
 

Audio Transcript:

John- A pregnant woman behind the bar, in a topless bar, I’m beginning to think that it’s hurting the registers and you’re incapable of fulfilling all of  your  job  duties. You’re trying, I’m not saying that you’re not trying,ok,but number one, I don’t want nothing to happen to you, I  don’t  want nothing to happen to you…
 
Jen-­ That’s not true, I can do it just fine…
 
John-­ Jen, Jen, don’t argue with me just listen to what I’m saying ok, I don’t want you…
 
 
John-I can’t help but think that it is partially because of the, ya see guys don’t think that a pregnant, they’re not coming in to see sexy bartenders that are pregnant that are bulging out, I’m sorry…
 
 
Jen-­ I bonused nine times since August. 
John-­ Since August!
Jen-­ How many other people have bonused nine times, that’s once a week!
John-­ Jen, Jen, you gotta stop…
Jen-­ The only thing I can’t do according to my doctor is have sex, that’s the only thing I’m not allowed to do.
John- Jen, you have, you wanna make it your way, I understand that, ok you bonused nine times, I’m not arguing that, but each week you’re getting bigger and bigger, and un, more unsexy, unsexy, ok, it’s more obvious, obvious, obvious, that you’re pregnant, pregnant, pregnant, ok?  
 
 
John-I didn’t have a problem with it but I told you when you start showing too much we’re gonna have an issue, you feel that you can keep going, I understand that, of course you’re gonna feel that way. You did tell me about the Fridays getting a little bit rough on you, yes you did, I’m not denying it ok? But, denial in your mind, you wanna keep going because you wanna keep making the money and do what you gotta do, I understand that and I respect that but there’s only one problem, it’s not in the best interest of the club all the time. You understand what I’m saying?
Jen-­ Like I said, I can understand if I wasn’t doing my job and I wasn’t doing it well.
 
Jen-­ Alright. Can you just give me a little notice when you’re gonna tell me that I need to stop working?
John-­ I will let you know, because I’m gonna be honest with you I don’t see it much past ya know next week. I don’t see it much past next week.
Jen-­ Next week?
John-­ Yeah next week. I can’t help it honey…
Jen-­ But I’m not doing a bad job, I’m ringing my register!
John-­ Jen you don’t understand, you don’t understand, you could be, I’m not saying that you’re not ringing the register, I just said there’s all different things and aspects, customers don’t wanna come in and see a pregnant woman behind the bar! Why can’t you get that through your head, you’re not getting it…
 
 
John-I can’t believe that one way or the other Gaslite was the only club on, damn near in the area or pretty much most of Long Island that was dead. If they were that’s fine, but why were they?  Maybe because I have a pregnant bartender? She’s not that much fun with them?

From Blog Talk Radio:

Faten Abdallah interviews Jack Tuckner, leading civil rights trial attorney, and the co-founding partner of Tuckner, Sipser, Weinstock & Sipser, LLP, a NYC-based law firm dedicated to the empowerment of women in the workplace.

Expecting a Baby, but Not the Stereotypes

By EILENE ZIMMERMAN
Published: November 21, 2009

Q. You recently became pregnant and expect to continue working through the pregnancy and after maternity leave. Although the initial reaction has been positive, is it possible you will face negative repercussions in the office?

A. It is possible, said Jack Tuckner, a partner in Tuckner, Sipser, Weinstock & Sipser, a law firm in Manhattan specializing in women’s workplace rights. That’s because pregnant women are often stigmatized and stereotyped and can elicit unwanted paternalistic protection, Mr. Tuckner said.

For example, he said, someone might think it’s best “if the pregnant woman isn’t included — she can’t stay out late, can’t knock back martinis with the team and then work until 11 p.m. and she has to use the bathroom all the time.” A pregnant woman might also be excluded from e-mail lists, meetings or business trips.

Eden B. King, an assistant professor of psychology at George Mason University, said that women interviewed for studies she has done on workplace pregnancy and discrimination reported feeling excluded from new projects that would help their career development.

“They are seen as already being out of the game,” she said. “Some women report experiencing a form of benevolent sexism, where they are treated like a child who needs to be protected or people pat their stomach.”

If you feel you are being marginalized or subjected to hostility you should complain, Mr. Tuckner said, because federal and state laws protect pregnant women from being treated differently from others.

Although it’s advisable to put any formal complaint in writing, an angry letter to human resources may be the wrong approach because it could result in people turning against you, he warned. Instead, write an informal letter or e-mail note. It could read something like this, he said: “‘I’ve worked here for 10 years and added a lot of value to this company and I want to continue to work here. But here’s the problem: Since I told Joe about my pregnancy and asked about the maternity leave policy, he’s excluded me from business trips and reassigned my best accounts. Can you please help me with this?”

Q. When is the best time to disclose the pregnancy?

A. Many women want to wait until they are past the 12-week mark. But depending on how closely you work with others in your department, you may feel that it’s best to tell them even earlier, especially if you’re experiencing physical symptoms like nausea and fatigue.

Disclosing your pregnancy early also allows more time to communicate about it with colleagues. “I think being really explicit early on about what is happening and what your plans are for the next six months, and then six months after that, helps co-workers manage their own expectations,” Ms. King said.

Q. The physical symptoms of pregnancy are often hard to deal with at work. How can you deal with your need to use the restroom more often or handle bouts of fatigue without appearing unprofessional?

A. Marjorie Greenfield, an obstetrician and author of “The Working Woman’s Pregnancy Book,” advised combining trips to the bathroom with other places you need to visit, like the mailroom. When in meetings, sit near the door so you can make a quick escape if necessary.

“About 70 percent of pregnant women experience nausea and vomiting,” she said, “so make yourself a bag of emergency supplies to combat that” — like ginger snaps, dry cereal, crackers, hard lemon candies and mouthwash, “and an extra blouse, in case it gets stained or sweaty.”

In dealing with fatigue, ask about working more flexible hours, so that you can come in later and get a little extra sleep. Some women also try to plan time off at the eighth or ninth week, which tends to be when symptoms peak, Ms. Greenfield said.

Q. You want your career at the company to continue after you have the baby, but you worry that while you are off on maternity leave you won’t be seen as a team player anymore. How can you alter that perception?

A. Counteract that stereotype upfront, by talking to your mangers and teammates.
“Tell them your career is very important to you, that you plan on coming back, are committed to the organization and your job,” Ms. King said.

Keep your foot in the door while you are on maternity leave by calling in to see how projects are progressing and stopping by with the baby for a visit, said Jamie Ladge, an assistant professor at the Northeastern University College of Business Administration who has conducted studies on pregnancy in the workplace.

Q. Are there any benefits to being pregnant at work and returning afterward as a new mother?

A. In her research, Ms. Ladge said she found a real benefit — especially for first-time mothers, who suddenly become connected to a group of people at varying levels within the company who are also parents.
“You make friends with more senior people, clients and those in other departments, easing into a conversation without making it all business,” she said. “Now you have this common ground and that can have very positive ramifications for your career.”

E-mail: ccouch@nytimes.com.