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Pregnancy discrimination a real threat for some workers

Last modified: 5/6/2013 10:45:19 AM
In March of last year, Katherine Tremblay, a Nottingham mother, was fired from her job of three-plus years as a field engineer at FairPoint Communications in Manchester. The layoff was part of a companywide downsizing in which performance rankings were used to help identify candidates for termination.

Tremblay is now suing her former employer, claiming in a three-count suit filed with the U.S. District Court of New Hampshire that she was wrongfully terminated based on pregnancy discrimination. The case is scheduled for trial in June 2014.

“Ms. Tremblay was subjected to discrimination and unlawfully terminated by FairPoint, as a result of her gender and pregnancy and her use of (federally approved) maternity leave,” the suit says.

Tremblay is not alone in her claim.

In the 2012 fiscal year there were 23 pregnancy discrimination in the workplace claims filed through the New Hampshire Commission for Human Rights, which acts as the state’s conduit for such claims. (The federal channel through which they’re heard is the Equal Employment Opportunity Commission, which is based regionally out of Boston.)

That figure is down from 2006, when 36 pregnancy claims were filed. But according to Lauren Irwin, an attorney representing Tremblay who specializes in employment law and who chairs the New Hampshire Bar Association’s Gender Equality Committee, it doesn’t mean the issue is disappearing.

In fact, nationally, the number of pregnancy claims tracked by the EEOC rose by nearly 2,000 between the 1997 and 2011 fiscal years, from 3,977 to 5,797. And that’s a problem, Irwin said, because such discrimination affects more than just a pregnant woman.

“It’s not just a women’s issue, it’s a family issue, because so many women are integral parts of the financial structure of a family,” Irwin said. “You also have to consider the effects discrimination like this can have on an employee’s self-esteem; a lot of a person’s identity often becomes wrapped up in their job.”

Tremblay’s suit

A few weeks before Tremblay was fired, she was notified of her 2011 performance review, which, unlike previous reviews, indicated that she needed improvement in several categories, including productivity, quality and “reliability and responsiveness.” Among the critiques, the assessment claimed that items had been frequently omitted from Tremblay’s work, forcing others to compensate with added time and labor.

Tremblay took issue with that charge, describing it to her supervisor as “vague” and unsubstantiated.

According to her suit, which was filed in January, Tremblay claims her negative evaluation and subsequent layoff were retaliatory actions for the two maternity leaves she had taken while with the company, the last ending in September 2011. The suit states that Tremblay has been unemployed since the layoff and has incurred financial hardships and “emotional distress” as a result.

FairPoint disputes the discrimination claims, arguing in a court filing that Tremblay’s termination was “legitimate” and objective based on the larger downsizing at the time. Neither the company nor its attorney, Martha Van Oot, would comment on the case for this story.

Irwin, who’s representing Tremblay with attorney Heather Burns, would not discuss the specifics of it, either.

Tremblay’s job performance in 2009 was deemed “fully competent.” In July of that year, she took maternity leave for the birth of her first child. In January 2011, Tremblay informed her supervisor that she was pregnant once more and would be taking maternity leave later in the year.

Two months after disclosing the pregnancy, she received her second performance review, which stated she needed improvement in two categories: productivity and “reliability and responsiveness.” After receiving the markedly more negative review the following year, she told her supervisor that she disagreed with its findings, noting specifically that the only time others had to cover for her was when she was out on approved maternity leave.

Pregnancy discrimination

Under federal law (the Family Medical Leave Act of 1993), women are allowed up to 12 weeks of unpaid maternity leave each year if they have worked for at least 12 months at a company that has 50 or more employees. New Hampshire law further protects prospective mothers at businesses with six or more employees by ensuring they receive substantial medical leave during their pregnancy, and that in most cases their positions, or comparable ones, are available when they return.

In 2010, Irwin and Burns litigated a discrimination case in Merrimack County Superior Court in which their client, Karen Pepin, claimed she had been wrongfully terminated from an IT firm in Merrimack after disclosing her pregnancy. Pepin won more than $200,000 in lost wages, benefits and attorney fees.

“In Karen Pepin’s case, she lost her job at a time when she was pregnant, and there were real emotional impacts from that layoff,” Irwin said.

Being laid off mid-pregnancy is especially troublesome because it can leave expectant mothers without health insurance, said Joni Esperian, who heads the state Human Rights Commission,

Julie Moore, an employment attorney and human resource consultant who testified as an expert in the Pepin case, said protecting pregnant workers is also critical to ensuring variety in the workplace.

“We need women in the workforce just like we need older people and people of color and other minorities,” she said. “Because diversity is something valuable.”

Moore said the threat of losing work or being treated differently often leads women to withhold disclosing their pregnancies to supervisors until absolutely necessary.

Planning and compensating for the temporary loss of an employee on maternity leave is a real concern for some employers, Moore and Esperian each said, but state and federal regulations are meant to bypass small businesses that aren’t able to hire a temporary replacement or absorb the lost labor in other ways.

“If someone’s not there and she’s the sales director and she handles a ton of cases, then there’s obviously a cost there,” Moore said. “But that’s no different than when you have someone out on worker’s (compensation).”

Esperian said the pregnancy discrimination she sees often stems from stereotyping about pregnant women or new mothers – either that their drive and the quality of their work decline or that they require extra protection or help while pregnant and working.

“I hear of employers who are paternalistic, who want to put restrictions on women who don’t want or need them,” she said. “There are exceptions, of course. A woman employed at a nuclear power plant, for example, should not be working while pregnant. But otherwise, unless she is asking for a restriction in accommodation, (employers) should not be assuming that a woman shouldn’t be lifting 50 pounds of lumber.”

Irwin said pregnancy discrimination sometimes only surfaces after a woman has her second or third child.

She said discriminatory practices can and do affect fathers, but that, in her experience, it’s far rarer than with women.

Further solutions

Moore applauded the laws in place protecting pregnant workers, but said employers and regulators should adopt more creative and flexible working conditions that bridge family and work life.

“Things like part-time schedules, job sharing, work-from-home arrangements – we need that for mothers and fathers,” she said. “Benefits like that are important, and they don’t have to cost an employer money.”

Moore also suggested that employers who are considering downsizing spend time developing objective criteria for laying off workers, and that they document that criteria and continually evaluate it to ensure it’s not adversely affecting pregnant women or older workers or people of color or minorities.

“Eliminate positions and not people,” she said. “(Downsizing) is not an opportunity to get rid of people you don’t like.”

Esperian stressed the importance of education.

“I’m a big believer in awareness,” she said. “If employers are aware of their rights and their duties, that tends to lend itself to the best outcome.

“When employers call and want to know if we have example family leave policies or whether they can fire someone, we tend to do a little dance over here. We don’t want to see people get into trouble. If we can prevent that it’s a win-win for everyone.”

(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)


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