Tuesday, January 23, 2018
tbt*

Pregnant workers still facing discrimination

At five months pregnant with her second child, Officer Lyndi Trischler found that the gun belt she was required to wear on her 10-hour patrol shifts pulled painfully on her expanding abdomen. Her heavy bulletproof vest was so tight that she struggled to breathe. She began having heart palpitations.

Months earlier, at her doctor's recommendation, Trischler had asked her supervisors at the police department in the Florence, Ky., if she could do light-duty work in the office as her pregnancy progressed. That's what she'd done the year before when, pregnant with her first child, she'd worked up until the day she gave birth. But this time, the city said no: Either go out on patrol or go on unpaid leave.

So she strapped on her equipment and went out on the road, even as a new city policy granted officers who had been injured on the job the same light-duty desk work that she'd been denied. Last month, Trischler, one of only two female officers on a staff of about 60, was forced to go on unpaid leave.

"I just physically couldn't do the job anymore," Trischler said.

Trischler, 30, with a master's degree in criminal justice, has filed a pregnancy discrimination claim against the city with the federal Equal Employment Opportunity Commission. A growing number of cases like hers shows that, despite a long history of pregnant women working and a 1978 law to prohibit pregnancy discrimination, workplaces, courts and doctors still disagree on some pretty fundamental questions: What can expectant workers safely handle, particularly in physically demanding jobs such as Trischler's? And what kind of accommodations are reasonable, legal and fair?

These disagreements can have devastating consequences: Pregnant workers who have been forced onto unpaid leave rather than receive accommodations have, according to a raft of recent discrimination cases, lost their health insurance and their income. Some, according to EEOC documents and court records, have been told by supervisors to choose — their babies or their jobs — and have either terminated their pregnancies or been fired.

"All I think about is how I'm going to take care of my daughter when I'm not making money," Trischler said. The son she's now carrying has a rare disorder and is not expected to live long after birth. "This is just a very, very, very, very, very stressful time."

The mayor of Florence, Diane Whalen, said she could not comment on pending litigation. In April 2013, city officials sent a memo to all department heads saying that the city would no longer offer light duty to employees with injuries, illnesses or other medical conditions that are not work-related.

"This policy is ridiculous. It doesn't even cover disabled people, which is required by the Americans with Disabilities Act," said Dina Bakst, with A Better Balance, a legal and advocacy organization filing the claim on Trischler's behalf.

And while many employers do provide accommodations, others don't. The number of pregnancy discrimination cases has been on the rise over the past decade, as have resolutions, settlements and monetary awards: $17.2 million in 2011, up from $5.6 million in 1997.

"We're not really sure why complaints are increasing," said Chai Feldblum, an EEOC commissioner. "Perhaps more women are realizing that they have the right not to get fired if they get pregnant, and that they should get the same accommodations as Joe, who sits next to them."

One central question in Trischler's case — whether an employer can deny accommodations to pregnant workers while providing them to workers injured on the job — is at the heart of another case, Young vs. UPS, that the Supreme Court recently agreed to hear.

Peggy Young, a former UPS driver in Landover, Md., sued UPS in federal court. She argues that the company refused to honor her midwife's note recommending that she not lift more than 20 pounds, even though UPS routinely gave such modifications to workers with non-work injuries.

Though she wanted to work light duty or continue driving her route while observing the lifting restriction, Young says in her brief that supervisors told her she was "too much of a liability" to keep on the job while pregnant. UPS argues that its policies are "pregnancy neutral."

The EEOC recently issued guidelines clarifying that employers that make adjustments for workers injured on the job must also grant reasonable accommodations to pregnant workers who need them.

One complicating factor in determining what's safe for pregnant workers is that the medical literature is inconclusive.

So, erring on the side of caution, doctors have tended to prescribe broad restrictions for pregnant workers — limiting heavy lifting or requiring light duty, reduced work hours or bedrest — said Rebecca Jackson, chief of obstetrics and gynecology at San Francisco General Hospital and a member of a group at the Center for Work Life Law at the University of California Hastings College of the Law studying accommodations for pregnant workers.

As for that pregnant Kentucky police officer, Trischler is preparing to move back in with family and out of the apartment she shares with her 1-year-old once her income runs out.

Her health insurance will cut off once her leave becomes unpaid, and she worries how she'll pay the hospital bill when she delivers in October. Her claim for short-term disability benefits was recently denied. And because she will have used up all her paid time off and her 12 weeks of unpaid leave covered by the Family Medical Leave Act, she won't have any time to recover after the birth. "When I'm cleared to go back to work," she said, "I'll go back to work."

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