N.C. woman battles for the right to work while pregnant

Beth Walton | Asheville (N.C.) Citizen-Times

ARDEN, N.C. — Jamie Cole says she never wanted to leave her job.

A certified nursing assistant, Cole provided personal care and services to nursing home residents at Sava Senior Care's Brian Center Health and Rehabilitation in Weaverville for two years.

"I loved the residents and I loved my co-workers," she said. "It was my second home."

But that was before a complicated pregnancy put limits on how much she could do, and Sava took her off the work schedule, according to a federal Equal Employment Opportunity Commission complaint filed by Cole.

The move eventually forced her to find work elsewhere, she said.

Cole is seeking compensation for economic and emotional damages, wages for time away from work and reimbursement for legal fees. She also wants her case to protect other women who are pregnant and in the workforce.

Her case has parallels to one under review by the U.S. Supreme Court. In that case, a UPS worker says she lost her job and health insurance after her doctor told her she should not lift heavy packages.

What is happening to Jamie Cole is happening to women all over the country, said Ariela Migdal, an attorney and senior staff member for the ACLU's Women's Rights Project in New York City.

Charges filed with the EEOC and Fair Employment Practices Agencies alleging pregnancy discrimination in the workplace increased by nearly 47% from 1997 through 2011, the last year in which states and the federal government reported numbers together.

"We are surprised that we're still seeing so much pregnancy discrimination in our nation's workplaces, 37 years after the Pregnancy Discrimination Act," said Christine Saah Nazer, spokeswoman for the EEOC.

The issue is a particularly important one in North Carolina. The state is one of four with no laws of its own protecting pregnant or breastfeeding employees.

Companies pushing pregnant workers out of the workforce are likely acting on outdated stereotypes that a woman's income is irrelevant, Migdal said. The ACLU is helping Cole with her case pro bono.

Alisa L. Bradford, an administrator at Sava Senior Care's Brian Center Health and Rehabilitation in Weaverville, referred all questions to her supervisors. They did not respond to requests for comment.

'WHAT AM I GOING TO DO?'

Pregnant with her third child, Cole's doctor recommended on April 30 that she no longer do any lifting.

In her previous pregnancies, Cole had suffered from preeclampsia, a condition characterized by high blood pressure that can be harmful for both the mother and baby, according to a note from her doctor that is a part of the EEOC complaint.

At the time, according to the complaint, Cole requested "light duty" accommodations.

The nursing home regularly provided "light duty" to workers unable to lift, Cole says in the complaint. On light duty, nurse assistants can feed and clean residents and assist with oxygen tubing and nebulizers, she added.

Representatives at Sava Senior Care denied Cole's request, saying she could not perform the essential functions of the job, since she could no longer lift 35 pounds without assistance — as stipulated in the job description – Cole says in the federal complaint.

"I went home really upset," Cole said. "All I could think about was my other kids at home. There was a mortgage and car payments, and now I'm bringing this third baby into the world and they weren't letting me work."

While her husband is employed, Cole said the family is dependent on two incomes. "All I could think about is, 'This is my third kid. What am I going to do?' "

Cole received a new note from her doctor stating she could lift up to 35 pounds and beyond that could lift with assistance.

The request was verbally declined, Cole says in the EEOC filing.

She did not work from May 1 through June 10. She was allowed to return June 11, after seeking legal counsel. A week later, on the advice of her doctor, she went on pregnancy leave.

Cole never returned to Sava. She had her baby in mid-July and resigned Sept. 4. That month, she secured employment as a certified nursing assistant at another care facility.

EEOC COMPLAINTS

In early November, Cole received a letter from an EEOC investigator saying her case was being processed.

Due to confidentiality laws, the EEOC legally cannot discuss, confirm or deny particular cases, said Nazer, the spokeswoman for the agency in Washington, D.C.

There are several ways the EEOC resolves claims, she said. An individual and employer can agree to mediation early in the process. Charges can be dismissed if no merit is found. Or, an investigation may reveal discrimination resulting in settlement negotiations and occasionally lawsuits filed by the EEOC on behalf of the complainant.

In 2013, the agency received nearly 94,000 charges of discrimination. It filed 131 merit lawsuits.

Cole is hopeful her case will result in the EEOC finding wronging, but said if it gets dismissed, she has still made her point.

A NATIONAL ISSUE

Today, women constitute nearly half the workforce. Seventy-five percent of them will most likely become pregnant in their working lives.

A record 40% of all households with children have mothers who are either the sole or primary source of income for the family, according to a 2013 Pew Research Center analysis of data from the U.S. Census Bureau.

In 1960, that demographic was just 11%.

In the case in front of the Supreme Court, Young v. UPS, Peggy Young, of Annapolis, Md., was pregnant and working for the United Parcel Service when she was told she could not have a temporary assignment to avoid lifting heavy packages to comply with her doctor's request, according to her lawsuit.

Young lost her job and UPS health insurance for nine months.

She sued the Atlanta-based company for discriminating against pregnant women, requesting back pay and damages. She lost twice in lower courts, before the U.S. Supreme Court agreed to hear her case Dec. 3.

The Supreme Court is expected to rule by June.

Several regulations are in place to make sure this sort of thing doesn't happen, Migdal said.

The Federal Pregnancy Discrimination Act requires that pregnant workers receive the same treatment as other temporarily disabled workers, she said. Protections are also granted under the Americans with Disabilities Act.

The EEOC updated its guidelines on pregnancy discrimination this summer. It was the first comprehensive review on the subject of discrimination against pregnant workers since 1983.

The Pregnancy Discrimination Act forbids discrimination based on pregnancy when it comes to any aspect of employment, the EEOC reports.

After the Supreme Court agreed to hear Young's case, UPS changed its policy to better accommodate pregnant workers.

Many states have decided to take a legislative approach to the issue.

In the wake of the UPS case, Maryland passed a law requiring reasonable accommodations for pregnant workers. The law requires employers to explore less strenuous or less hazardous options for employees requesting accommodation for a disability caused or contributed to by pregnancy.

Delaware, Illinois, Minnesota, New Jersey, West Virginia, and New York City have all passed similar laws in recent years.

Additionally, dozens of other states have put in place other related pregnancy and breastfeeding protections.

Some business groups filed a friend-of-the-court brief in the UPS case.

"Accommodating workers who are pregnant leads to greater productivity at minimal cost," attorney David C. Frederick, of Kellogg Huber, Hansen, Todd, Evans & Figel, argued in the brief.

Such policies are also good for the national economy where working women are increasingly playing an important role, he said. Ensuring pregnant workers can continue to do their job protects their buying power.