Pregnant Workers Are Seeking Justice After Being Penalized on the Job

Pregnant Workers Are Seeking Justice After Being Penalized on the Job

Pregnant Workers Are Seeking Justice After Being Penalized on the Job

According to complaints filed by the legal organization A Better Balance, Chick-fil-A and Amtrak have violated the protections guaranteed in the new Pregnant Workers Fairness Act.

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In March, Brooklyn Lawson woke up from a nap to painful cramping. Newly pregnant, she ran to the bathroom to discover that she was heavily bleeding. “I was freaked out,” she told me. She rushed to the emergency room, where medical staff told her that she had a subchorionic hematoma, a blood clot between the outside of the amniotic sac and her uterus wall, putting her at risk of miscarriage.

After being kept at the hospital, her providers told her to go home and “take it easy,” she said, and to restrict anything she lifted to no more than five pounds. She quickly sent her manager at Chick-fil-A a message telling her that she was dealing with a medical issue and would return to work once she got clearance from her obstetrician. Her manager told her it was okay to stay home and heal.

But the following day, Lawson received a text message from her employer saying she was in fact being penalized for her absence. The Chick-fil-A franchise she worked for has an attendance policy that penalizes unexcused absences with points if the employee doesn’t have any personal days saved up to cover them; accumulate six or more and an employee is at risk of discipline or even being fired. Lawson was given three attendance points for missing work while dealing with her potential miscarriage. Points-based or “no-fault” attendance policies are a common practice at a number of large American employers, and workers have reported being given points for lawfully protected absences under, for example, the Family and Medical Leave Act and Americans with Disabilities Act. Lawson was out of personal days and had already accumulated four points—she’d recently had to put her dog down—so the three new ones put her at risk of being fired at any time. “Each day was more stressful,” she said. “I was worried about my job, worried about baby.”

On Wednesday, with the help of lawyers at the nonprofit legal organization A Better Balance, Lawson filed a complaint against her Chick-fil-A franchise alleging that the company violated the federal Pregnant Workers Fairness Act, which went into effect last June, when it penalized her for getting medical care for her potential miscarriage. A Better Balance also filed a complaint on behalf of Bobbie Roth, an Amtrak employee who is accusing the company of similarly penalizing her for taking time off for prenatal appointments and for some of her maternity leave. Together, these complaints, shared exclusively with The Nation, represent the first public charges A Better Balance is filing with the Equal Employment Opportunity Commission under the PWFA. The EEOC has already received complaints under the new law, but few have been made public yet.

The PWFA requires employers to give their workers accommodations for pregnancy, such as unpaid time off for medical appointments, unless employers can prove it would pose an undue hardship, a somewhat high bar—the EEOC has made it clear that they have to present actual evidence to make this claim. Before last June, because Lawson lives in Indiana, she might have had no recourse; although 30 states and Washington, D.C. had passed their own versions of the law before the federal one, hers was not one of them. Now she, and all other American workers, are protected when they need changes at their jobs to continue working and stay healthy when pregnant, including not just unpaid leave but also accommodations like more breaks or even the ability to carry a water bottle.

These two complaints also make clear that the points-based attendance policies of at least some employers are still violating this new law. What Lawson went through “really is representative of a broader problem all across the country where employers, major employers, are using these punitive attendance policies to chill workers from exercising their rights under the PWFA,” said Dana Bolger, a senior staff attorney at A Better Balance. “A year into the PWFA being the law, this is one of the main violations we’re seeing employers commit under it.” A Better Balance gets frequent calls to its hotline from workers who say their employer’s attendance policy doesn’t mention the PWFA or explain that they can’t be punished for taking protected time off.

The organization is hoping the complaints don’t just secure justice for Lawson and Roth but push employers to examine their policies to make sure they comport with the law and ensure managers understand what workers’ rights are under it. “The PWFA explicitly protects workers from punishment for needing or requesting an accommodation for time off,” Bolger said. “Attendance policies that interfere with that right violate the law.”

When asked for comment, a spokesperson for Amtrak replied that “We don’t comment on pending litigation.” Chick-fil-A did not respond to requests for comment.

Bobbie Roth met her husband at age 39 while they were both working for railroads; she’s been a locomotive engineer at Amtrak for nine years. After they fell “madly in love,” they knew they’d need to move “fairly quickly” if they wanted to have children together, she told me. When her son was born in 2019, it “was my first realization that working for the railroad and having a baby does not really go well together,” she said. When she wanted to keep pumping breastmilk while working, Amtrak tried to get her to resign, she alleges, instead of finding ways to accommodate her. So when she got the “amazing” surprise that she was pregnant again in early 2023, her very next thought was how she would manage her pregnancy while still employed at Amtrak.

Roth’s schedule requires her to be available to work six days a week, three days with a set schedule and three days on call.  But the hours she waited by the phone while on call didn’t count toward qualifying for unpaid leave through the FMLA unless she was asked to work. American workers are required to work at least 1,250 hours in the 12 prior months to be able to take FMLA leave. Roth kept falling short of the needed number of hours, sometimes by as little as 20 hours over that 12-month period. Toward the end of her pregnancy, because of her age, her doctor scheduled her for two appointments each week, which she couldn’t square with being on call. Every morning she had an appointment she would wake up and immediately check to see if she’d be called in, and if she was she’d have to call out of work to get to the doctor. “It literally was a toss of the dice twice a week,” she said. Every time she called out to attend her appointments, she immediately handed her employer a medical note spelling out the absence. All of this didn’t account for days when she didn’t feel well enough to work. “I couldn’t even really mark off for that because of the fear of losing money and my attendance,” she said.

Then things got worse. On the advice of her doctor, she began her maternity leave in late July, a week and a half before her baby was born. Just a week into her leave under Amtrak’s benefits, she received a letter saying she was being penalized with “occurrences”—Amtrak’s term for attendance-related points—for her prenatal appointments. When she returned to work less than three months after giving birth to her daughter in early August, she was also informed that she was being given more occurrences for the first five days of her maternity leave. Together, all those occurrences related to her pregnancy put her over the limit of 11 in a 12-month period, and she was told that if she took any more absences she could be disciplined and even fired. That means she can’t take any more time off work until this coming July, even if she or her family members get sick or she needs to go to a postpartum medical appointment.

“It was unbelievably stressful,” she said. She’s been left “completely distraught” and depressed. Her husband and oldest daughter urged her to quit, but she refused. “I worked hard to be an engineer and to have the title and to be a mom again,” she said through tears. “I should not be in a position to choose between my job and raising my family.”

Roth hadn’t been aware of the PWFA when all of this was happening, but she couldn’t believe what happened to her was okay. “I just kept pounding the pavement trying to find somebody that was able to help me understand things better and support me,” she said, eventually connecting with A Better Balance. Finding out about the law, and that it appears her employer violated it, “It blows my mind,” she said.

Lawson felt similarly. After what happened to her, “I just didn’t feel like it was right,” she said, and kept Googling for answers. When she found out about the PWFA she was surprised “that it was so new,” she said. “But I was also comforted knowing there is some kind of protection out there.”

Lawson eventually quit her job, fearing that continuing to work at Chick-fil-A would risk her health and her baby’s health. Her pregnancy has recently gone relatively smoothly. The blood clot healed and she’s in her second trimester; the baby is growing well and she mostly feels good.

But feeling forced to leave her job took a toll on her. She felt sick for the whole first week after she left. Lawson already has a ten-month-old baby and while her boyfriend is working, the loss of her income been incredibly difficult financially for their family. “I have to be more cautious with my spending,” she said. She was “super stressed and anxious, worried, ‘What am I going to do to take care of my baby, to take care of my other baby, to take care of the house, to contribute?’”

She hopes that, by speaking up, she doesn’t just rectify her own situation, but that of others. “I honestly just hope that we’re able to resolve the issue from ever happening to another pregnant woman again,” she said.

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