Jack Tuckner is the featured expert in this incisive Lawyers.com analysis of pregnancy discrimination at the workplace.

Written by Ada Kulesza for Lawyers.com

The Equal Employment Opportunity Commission (EEOC) has found a sharp increase in pregnancy discrimination complaints over the past 10 years. Women complained of violations that ranged from getting fired during pregnancy or immediately after, to being assigned lower-paying positions because of their condition.
• In Pennsylvania, a chiropractor notified her employer when she found out she was pregnant. She was hospitalized for nearly two weeks with severe morning sickness that nearly led to dehydration. The company fired the mother-to-be and terminated her health care within days of her notice, and hired a replacement. She’s suing under the EEOC for an undisclosed amount, and the company counter-sued her for $50,000, claiming that she left her job and neglected to fulfill her contract obligations. 
• In another case, a judge ordered a Wisconsin medical staffing company to pay $148,000 to a woman, Roxy Leger, who was fired when she took maternity leave following the birth of her son. The settlement resulted from a default judgment, when the company failed to retain an attorney after a court order. According to the EEOC, the company owner “referred to Leger’s pregnancy as a joke; insisted that maternity leave should last no more than a couple of days; suggested that Leger’s pre-natal appointments were a ruse for additional time off or for money; and gave Leger an offensive diagram of a machine which would allow Leger to return from her maternity leave sooner … HCS terminated Leger’s employment and health insurance while she was still in the hospital recovering from a Cesarean section … Leger learned of her termination days later by certified mail,” reports the human resources company Workforce.
• A part-time UPS employee needed to avoid lifting more than 20 pounds during her pregnancy. “Given that UPS had a policy of giving light duty to various other employees who were physically unable to do their usual job,” she assumed the company would accommodate her temporary condition, writes Emily Martin, Vice President of the Women’s Law Center. Instead, they forced her to take unpaid maternity leave, and she lost her medical coverage “months prior to the birth of her child.” She wound up losing her pregnancy discrimination case.
 
Labor Pains

“I’m a businessman. I understand what it’s like to have a pain in the butt employee,” says Jack Tuckner, an attorney specializing in women’s rights and father of two daughters. “Pick a master, you can’t pick two. You have a corporate master. It’s so competitive, with ‘unemployed need not apply’ and jobs leaving the country. The fact is, you’re pregnant, and you’re going to be compromised.”
Tuckner says sex, pregnancy and disability constitute the “Holy Trinity” of discrimination. And he says where sexual harassment and gender bias have leveled off in recent years, pregnancy discrimination is on the rise. Especially because employers deliberately deceive women about their rights to maternity leave.
“You have an employee who’s out of the game for three months, and they aren’t necessarily looking at you as a human being who’s looking for compassion – you’re at home watching HBO!”
He says lying has become more brazen to cheat women out of their lawful rights, which are paltry compared to other developed countries where women get paid maternity leave, such as Germany and the Netherlands. Even a corporation that sells products to women, with mostly female employees, lies to their employees, using the Family and Medical Leave Act (FMLA) to get them to resign, so they cannot demand maternity leave or accommodation. “Those calls don’t stop coming in,” the attorney says. It’s especially easy to dupe lower-income women who have less education – women who are more likely to be single mothers, who need the employment more desperately.
If they fire the pregnant woman, it would constitute a violation of the FMLA, so they’ll coax a resignation instead. “Pregnancy is a disability, legally. If you have medical challenges, it’s deserving of a reasonable accommodation,” Tuckner says. A woman on maternity leave will be “out of the game,” and companies see her “as damaged goods.”
The attorney says a few questions will tell a woman if she might have a pregnancy discrimination case. Tuckner says, “You said, ‘Hello employer, I’m pregnant, I need to know what my status is.’ Now, the terms and conditions of my employment with this company, have they changed? Have they been degraded? Have they been altered as a result of my status? After you notified them, or they noticed your pregnancy. If something about my pregnancy is causing a change in my work status that I feel uncomfortable about, it’s the first sign of (discrimination).”
Women can file a complaint with the EEOC, and can seek a consultation with a good women’s rights lawyer. You can find more information and steps you can take to protect yourself here.

Little is known about the Abortion Provider Appreciation Day. March 10 is observed to celebrate abortion providers because it is essential to recognize that Crisis Pregnancy Centers are fake “clinics” driven by anti-abortion agenda. They often have no clinical staff, spread lies, guilt-trip women and enormously delay and complicate women’s ability to access abortion.

New York City today witnessed a protest and march against sites of women’s oppression. The march started from the St. Patrick’s Cathedral on 5th Avenue because the Catholic Church’s approach to women, gender, science and sexuality is a Dark Ages disaster! The Pope has condemned condoms (causing millions of HIV/AIDS deaths). The Church condemns homosexuality and insists that “divorce is a sin” (contributing to women staying in abusive marriages). Recently, Catholic Bishops urged “non-compliance with new regulations requiring health insurance to cover birth control!

Registering the protest at St. Patrick's Cathedral

The March to Times Square was aimed at protesting the objectification of women. Women’s near naked and rail-thin bodies are used to sell everything from clothes to cars to “American culture” to the entire world. Protesters also targeted the US Military Recruiting Center because US military’s quasi-official reliance on brothels as a “perk” to make soldiers and the role of military forces in trafficking women and girls and the epidemic of rape, harassment and violence against female soldiers are core issues that needs addressing.

International Women’s Day celebrations in New York also witnessed a march to and protest strip clubs. American men spend an estimated $15 billion a year on strip clubs, as compared to $4 billion on baseball. Strip clubs have always objectified and degraded women. But as women have entered – and fought for increasing respect in – the public sphere, strip clubs have become an enclave for sexism and male entitlement towards women’s bodies. Further, strip clubs prey upon the desperation, abuse and addiction of many women, including trafficked women.

As one of the organizers, Sunsara Taylor from Stop Patriarchy points out, “Our protest is not symbolic. It is a beginning. It is a declaration. From now, until we win the full liberation of women, this war on women will be resisted with conscience, anger, imagination, massive mobilization, and relentless determination to turn the tide.”

Media Coordinator for this report:
Saswat Pattanayak – spattanayak@womensrightsny.com

Kathryn Pereda was fired because her employer said she did not qualify for FMLA leave. She sued and the court found on her behalf.

Appellate judges noted that neither they nor apparently any other circuit court had considered this issue. They had dodged the question in a ruling involving an employee who wanted leave before she was eligible. But believing that FMLA actually requires employees to give their employers as much notice as possible of their impending need for leave, they ruled for Perry on her interference claim and sent the retaliation claim back to the district court for reconsideration.

The intent of the law was to set up protection for pregnant women though employers continue to use it to instead fire them. Or worse, tell them they have to quit further aggravating their situation.

Brief Summary -
Appellant Kathryn Pereda (“Pereda”) appealed the district court’s dismissal of  her complaint alleging violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., by Appellee Brookdale Senior Living Communities, Inc. (“Brookdale”).  The district court held that because Pereda was not an “eligible employee” at the time she was terminated, she could not bring her claims under the FMLA.  The Eleventh Circuit reversed and remanded, holding Pereda stated sufficient facts to establish prima facie claims for both FMLA interference and retaliation.

Extended Summary –
Pereda filed suit against her employer, Brookdale, alleging claims for interference (Count I) and retaliation (Count II) under the FMLA.  Her complaint asserted that Brookdale interfered with her FMLA rights by denying her benefits to which she was entitled, and by terminating her for attempting to exercise those rights.  Brookdale moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.  The district court dismissed Pereda’s complaint, reasoning that Brookdale could not have interfered with Pereda’s FMLA rights, because she was not entitled to FMLA leave at the time that she requested it.  The district court also held that since Pereda was not eligible for FMLA leave, she could not have engaged in protected activity; thus, Brookdale could not have retaliated against her.  Pereda appealed, presenting the Eleventh Circuit with an issue of first impression.

After examining the various elements of the FMLA regulatory scheme, the Eleventh Circuit reversed and remanded.  With respect to Pereda’s interference claim, the court held that it must construe Pereda as “eligible” for FMLA protection.  In so holding, the court noted that because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child; otherwise, “a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.”  The court further held that Pereda alleged a valid cause of action for retaliation under the FMLA, because a pre-eligible discussion of post-eligible FMLA leave is protected activity.

By Jessica Samakow for The Huffington Post

Amy Zvovushe, 31, had a new job (as a senior program manager at a marketing company in Connecticut) and a new baby on the way. But instead of colleagues sending congratulatory cards and putting stork decorations on her desk, Zvovushe says that when she announced her pregnancy at work, she was asked to resign. The company didn’t offer her maternity leave because she had only worked there for four months, and the federal Family Medical Leave Act says employees must work for a full year to be eligible.

After she got this news, Zvovushe had a later conversation with human resources. ABC News reports that she recorded this discussion without telling them, and caught several alarming statements on tape. For example, the executive said:
“You don’t receive protection under FMLA so technically if you don’t come to work… it doesn’t matter whether you’re having you’re appendix out or you’re having a baby or you’re dealing with a sick person you didn’t show up for work on Monday.”

Zvovushe’s attorney, Jack Tuckner, then contacted the company to straighten out the situation, and likely because Zvovushe had the HR rep’s harsh words recorded, they agreed to grant her leave to care for her baby.

“Because they were able to fix it, they say no harm, no foul,” her attorney said to ABC.

But Zvovushe is only one of many pregnant woman discriminated against at work. In the U.S., women are fired every day for being pregnant, Dina Bakst, a lawyer and founder/president of A Better Balance: The Work and Family Legal Center wrote in a recent Op-ed for the NY Times. She blames the gap between discrimination laws and disability laws for the injustice.

Federal and state laws ban discrimination against pregnant women in the workplace. And amendments to the Americans With Disabilities Act require employers to provide reasonable accommodations to disabled employees (including most employees with medical complications arising from pregnancies) who need them to do their jobs. But because pregnancy itself is not considered a disability, employers are not obligated to accommodate most pregnant workers in any way.

Considering three-quarters of the women who enter the work force will become pregnant, Bakst calls for action. She highlights New York State Senator Liz Krueger and Assemblywoman Aileen Gunther of Sullivan County who have introduced legislation that “would require employers to provide reasonable accommodations for pregnant women whose health care providers say they need them.”

Some states have made significant progress. According to NY Times, “as of 2010, seven states, including California, had passed laws requiring private employers to provide at least some accommodations.” And many companies — including those on Working Mother Magazine’s list of top 100 companies for mothers — work to create flexible, supportive environments for pregnant women, even if the law doesn’t require them to.

Jeannette Cox, a law professor at the University of Dayton, is also fighting for pregnant women’s rights in the workplace. She argues that pregnancy should be considered a disability. Though pregnant woman are covered under the 1978 Pregnancy Discrimination Act, some protections under the ADA don’t apply to pregnant women and Cox says it’s time for a change.

The Equal Employment Opportunity Commission is scheduled to host a hearing about pregnancy discrimination this month, ABC news reports.

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.