A Better Balance, National Women’s Law Center, and Mehri & Skalet Applaud Change, but Say It Doesn’t Go Far Enough
Three legal organizations, which brought a class action complaint against Walmart earlier this year for discrimination against pregnant workers, said today they welcomed a new policy in which the superstore giant promises to provide “reasonable accommodations” for temporary disabilities caused by pregnancy.
Just weeks after the organizations, A Better Balance, the National Women’s Law Center, and Mehri & Skalet, PLLC, filed a pregnancy discrimination charge on behalf of a nationwide class of women workers against Walmart, Inc. with the Equal Employment Opportunity Commission (EEOC), Walmart has revised its treatment of pregnancy for all United States employees. Walmart’s new policy states that it will provide reasonable accommodations for temporary disabilities caused by pregnancy. The EEOC charge asserted that Walmart has a nationwide policy and practice of pregnancy discrimination based on its failure to make accommodations for pregnant workers who need them.
The individual at the center of the EEOC charge is a Walmart sales associate Kathy* who was advised by her doctor not to lift more than 25 pounds during her pregnancy and to stay off ladders. For months, she performed her job successfully, switching tasks with co-workers when necessary. When the employee was seven months pregnant, Walmart asked her to provide a doctor’s note setting out any restrictions. She turned in the note and, that same day, was forced to begin unpaid leave—despite making it clear that she was capable of doing her job with a reasonable accommodation and wanted to continue working. Walmart refused to accommodate her restrictions despite routinely accommodating workers with a wide array of non-pregnancy-related disabilities. Being forced onto unpaid leave caused significant financial hardship for the worker and her family.
“Three months before my baby was born, Walmart forced me out the door,” Kathy said. “I was doing my job as a sales associate just as I had been for months, but suddenly I lost the paycheck that my family was counting on—simply because I was pregnant.”
Walmart’s policy change comes after a steady drumbeat of legal pressure from women’s groups and advocates for workers lasting more than a year. In early 2013, A Better Balance sent a letter to Walmart management alerting it of legal compliance problems with company policies and practices after hearing from Brittany,* a pregnant worker who had been pushed out of her job when she presented a doctor’s note restricting her from carrying or climbing tall ladders to prevent preterm contractions and falls. Later that year, A Better Balance and the National Women’s Law Center conducted an investigation and unearthed a pattern of unlawful discrimination against pregnant women at Walmart. Walmart’s Accommodation in Employment policy had explicitly stated that pregnancy was a condition eligible only for minor job adjustments and that pregnant workers were ineligible for the reassignments and transfers of nonessential job duties given to workers with disabilities. As a result, pregnant workers were denied the types of reasonable accommodations that workers with disabilities received, even though they had the same medical need and the same ability to work. This difference in treatment violated the federal Pregnancy Discrimination Act (PDA). The investigation also revealed that Walmart had a policy of refusing to provide reasonable accommodations for pregnancy-related disabilities, which violated the Americans with Disabilities Act (ADA).
After the charge was filed and after a shareholder resolution was proposed by two Walmart workers, Walmart announced its new Accommodation in Employment policy, which explicitly states that temporary disabilities caused by pregnancy are eligible for the same reasonable accommodations as other disabilities. Under the revised policy, Walmart has committed to accommodate those pregnant workers with disabilities—as it must under the ADA. But its new policy does not provide clear protection for pregnant workers who need accommodation to stay healthy and prevent future health problems, as opposed to those pregnant workers who need accommodation because of a disabling illness or injury related to pregnancy.
“Pregnancy can no longer be an excuse for Walmart to push women out of work,” said Emily Martin, Vice President and General Counsel at the National Women’s Law Center. “We applaud Walmart for taking this first step to update its outmoded, illegal policy, but it has more to do to comply with the law. Under this new policy, Walmart can continue to evade its legal obligations and force pregnant workers off the job when they can least afford it—by quibbling over whether they are ‘disabled.’ Walmart should heed the part of its slogan that says ‘live better’ by not making life worse for its pregnant employees.”
“While we are enthusiastic about this policy change, it does not go far enough,” said Dina Bakst, Co-Founder & Co-President of A Better Balance. “Over and over again, Walmart has failed to accommodate pregnant workers. Many pregnant women without illnesses or complications are advised by their doctors to stay off tall ladders, drink water throughout the day, or take other steps to prevent health problems. Walmart must further update its policy to make clear that it will provide reasonable accommodations for all pregnant workers who need them, regardless of whether they are disabled. The Pregnancy Discrimination Act mandates equal treatment, nothing less, and we will continue to fight until Walmart obeys the law in full. No woman should have to choose between her job and a healthy pregnancy.”
“I never want what happened to me to happen to another pregnant Walmart associate. Walmart needs to update its policy so that no worker has to worry that she will be pushed off her job while pregnant because she needs a small change to stay healthy and earn a paycheck,” Brittany said.
*Names changed to protect privacy and prevent workplace reprisals.
NWLC and ABB experts on pregnancy discrimination are available for interviews.