Tuesday, September 30, 2014

Pregnant Pause

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A rash of discrimination cases raises the question: How well does Arizona protect its pregnant workers?


Stacey Smith was mystified when her work hours were abruptly docked at Tutor Time in Queen Creek. The Mesa resident says she received glowing reports from both customers and colleagues at the daycare

facility, and she valued the full-time work. However, by summer of 2009, she found herself in a nightmare of underemployment that was happening at the worst possible time – when Smith was four months pregnant with her second child. “It was very difficult,” the 28-year-old remembers. “We lost our car, our house and our insurance.”

The timing of the crisis and her pregnancy weren’t coincidental, Smith believes. Last year, she and former Tutor Time co-worker Aimee Lespron filed a joint lawsuit against the company alleging pregnancy discrimination. The case highlights the simmering issue of labor rights for expectant mothers in Arizona, and may point to a misinformed corporate culture confused about the true import of Arizona’s right-to-work laws.

During the last three years, the number of claims of pregnancy discrimination filed in Arizona with the Equal Employment Opportunity Commission went up nearly 30 percent. Arizona routinely leads the nation in pregnancy-discrimination complaints per capita, according to Mary Jo O’Neill, regional attorney for the Phoenix district office of the EEOC.

According to O’Neill, many Arizona employers believe they have “unfettered power” with right-to-work laws, which prohibit agreements between labor unions and employers. They seem less cognizant of federal laws like The Pregnancy Discrimination Act – which prohibits employers with 15 or more employees from discriminating against a woman because of pregnancy, childbirth or related medical conditions. Under the law, a pregnant woman in Phoenix is just as protected as a woman in unionized cities like San Francisco or New York. “Maybe when you live in a right-to-work state, employers think they can do whatever they want,” O’Neill speculates. “I was shocked when I saw how high the numbers were.”

In January 2012, a case against a Subway franchise in Phoenix went to trial after the store manager testified three times under oath that he was told not to hire pregnant women. “We’re not hiring pregnant people here because they cannot lift and nursing and all that,” he stated in the motion for summary judgment. In September 2011, the EEOC sued Sandbar Mexican Grill in Peoria for removing a pregnant employee from a Sunday shift during football season, allegedly because men didn’t want to see pregnant women during Sunday football games. The outcome of the lawsuit is still pending.

The case of the ex-Tutor Time employees is a bit more puzzling, since pregnancy is presumably consistent with the company’s family-friendly image. Regardless, Smith – who had several years of experience in the daycare industry – rated no better than the odd on-call shift after revealing her pregnancy. Similarly, Lespron, 34, says her hours were cut from 40 hours per week to “three or four” hours per week during her pregnancy. Since neither woman was fired, they couldn’t get unemployment insurance or file for Arizona Health Care Cost Containment System (AHCCCS). Tutor Time blames the economic downturn for the reduced hours, but Smith alleges the company concurrently hired six new teachers at the same location.

“My personal theory is that there was going to be some monetary consequences to cover the shift – it was going to be a big scheduling hassle,” posits the pair’s attorney, Jake Curtis. “It was just a pain-in-the-ass for mothers to be gone.”

A Tutor Time spokesperson declined to discuss the specifics of the case. Curtis says he will seek the maximum settlement allowed by Federal law of $300,000 each for his clients – a figure based on the number of employees in the company. Translation: The bigger the company, the more costly the discrimination.

 

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