After years of alleged discrimination toward pregnant employees at the Department of Homeland Security, a group of Customs and Border Protection officers has now reached the next step in a lawsuit against the agency.
The discrimination case, affecting current and former officers and agricultural specialists in CBP’s Office of Field Operations, is now certified as a class action lawsuit. An administrative judge at the Equal Employment Opportunity Commission certified the class of employees on April 21.
After telling their supervisors they were pregnant, the CBP employees alleged that they were systematically forced into temporary light duty (TLD) status, regardless of whether or not the employees requested it.
“There was no conversation about my ability — it was just assumed. It seemed that the agency believed that my pregnancy would impede my competency,” Roberta Gabaldon, a CBP employee and one of the class agents, said in a statement.
The employees alleged that their managers’ actions violated the Pregnancy Discrimination Act of 1978, which states that pregnant employees should only be given work accommodations if they specifically ask for them.
“Part of the reason for the law is to protect against stereotypes and preconceived notions about what pregnant women can and can’t do,” Cori Cohen, partner at Gilbert Employment Law and appointed co-counsel for the class, said in an interview with Federal News Network. “The courts have been really clear on this — an employer can’t substitute its own judgment about what a pregnant employee should do. That appears to be exactly what the agency policy is doing here, saying because you’re pregnant … [you] automatically must be placed into a light duty position.”
CBP declined to comment on the class certification, per the agency’s policy not to comment on pending litigation. But a CBP spokesperson added that the agency values the diversity of its employees and is committed to building and maintaining a workplace free of discrimination.
When put on TLD, employees often temporarily work in a different position within the agency. But CBP’s policy treats pregnant officers and agricultural specialists differently than other employees who are eligible for TLD, EEOC’s decision said.
“According to the class agents, supervisors across the agency’s field offices have a pattern or practice of involuntarily placing pregnant employees on TLD as soon as the pregnant employee discloses her pregnancy, because of the agency’s TLD policy,” EEOC said.
Additionally, the TLD policy doesn’t take into account employees’ areas of expertise, Cohen said.
“These women have been working for many years to develop specific skill sets, to be officers or agricultural specialists,” Cohen said. “They’re being placed into oftentimes new positions that they have no experience with … They’re not positions that they want to be in.”
Employees on light duty also see cuts to certain benefits, including the overtime pay, training eligibility, promotional opportunities, the ability to obtain preferred work schedules and the right to carry a firearm.
“We’ve heard across the board from women who are immediately having their weapons revoked when they’re placed into light duty positions, without regard to their abilities,” Cohen said.
In the EEOC decision, CBP argued that there was not enough commonality among the employees’ experiences, and that the claims were too distinct from one another to warrant class certification.
EEOC Administrative Judge Kevin Rung said, though, that the testimony of 23 individuals, across 11 of the 20 CBP field offices across the country, showed that the placement of pregnant employees on TLD occurred roughly 80% of the time.
Given the relatively consistent testimony, Rung said the class agents’ claims are indeed typical for pregnant CBP employees. Rung ultimately granted class certification for the case.
Since July 2016, it’s estimated that 515 CBP employees were involuntarily placed on light duty while they were pregnant.
Debra D’Agostino, a founding partner of the Federal Practice Group and attorney familiar with similar discrimination cases in the federal sector, said it can be common for agencies to put pregnant employees on leave, rather than try to figure out the right accommodations for them.
“Law enforcement agencies, in particular, have historically been terrible at figuring out how to handle pregnant women,” D’Agostino told Federal News Network. “The Pregnancy Discrimination Act case law could not be clearer that this is the woman’s choice. The woman gets to decide what risks she’s going to assume. When the employer starts making these decisions for her, that’s when they violate the law.”
The Pregnant Workers Fairness Act, which President Joe Biden signed into law in December 2022, will likely help clear up some confusion around accommodations for pregnant employees in similar cases in the future, D’Agostino added. The law takes effect June 27.
For the CBP case, the agency has until May 31 to appeal the decision, and 30 days from the date of class certification to notify all certified class members of the complaint.
If the agency chooses not to appeal, the case will move forward to the next phase. Any pregnant CBP employee required to work on TLD status since July 2016 is eligible for the class action lawsuit.
“I am grateful that our voices are being heard, and hopeful that this suit will help bring an end to pregnancy discrimination at CBP,” Gabaldon said.
Cohen said she hoped the CBP case can serve as a jumping-off point for similar cases of discrimination in the future.
“This is a continuing conversation in all employment, assessing our long-held societal beliefs about pregnant women and what they should and shouldn’t be doing. I hope that this is part of the conversation, reevaluating that and moving culture and policies forward so that pregnant women are not held back or stereotyped or facing bias in the workplace. I think that this is an important step in that direction,” Cohen said. “It was very brave of our clients to come forward and to raise this. It’s certainly not an easy thing to speak out about.”