Workforce Rights/Governance

In $45M settlement, CBP to make reforms addressing workplace discrimination

CBP agreed to enact a new policy presuming pregnant officers can continue to serve in their positions, rather than being systematically placed on light duty.

Drew Friedman@dfriedmanWFED

August 15, 2024 1:54 pm

4 min read

A group of more than 1,000 federal employees reached a $45 million settlement with the Customs and Border Protection this week in a class action lawsuit alleging systemic discrimination against pregnant workers.

As part of the case settlement, which is expected to receive final approval in September, CBP agreed to reform its policies in an effort to eliminate discriminatory practices in the workplace, according to a Tuesday press release from Gilbert Employment Law.

“With the CBP’s adoption of reforms negotiated in this settlement, CBP should become a leader among law enforcement agencies in providing equal opportunities for pregnant employees to thrive and be regarded as equally capable of performing their jobs as their non-pregnant colleagues,” Joseph Sellers, a partner at law firm Cohen Milstein Sellers & Toll, said in a statement.

The lawsuit, first filed back in 2016 at the Equal Employment Opportunity Commission, alleged that CBP, a component of the Department of Homeland Security, was discriminating against officers and agriculture specialists who were pregnant. The class members said after telling their supervisors they were pregnant, they were systematically placed on “temporary light duty” status, regardless of whether they requested it. Employees on light duty at CBP have limited opportunities for overtime pay, promotions and training, and they cannot carry firearms, the plaintiffs said.

“The assumption was that I could no longer effectively do my job, just because I was pregnant,” Roberta Gabaldon, a CBP employee and the lead plaintiff in the case, said in a statement. “It was traumatizing, frustrating and demoralizing.”

The lawsuit specifically alleged a violation of the Pregnancy Discrimination Act of 1978, which states that pregnant employees should only be given work accommodations if they ask for them. EEOC explains on its website that under federal law, employees cannot be fired, rejected for a job or promotion, given lesser assignments or forced to take leave if they are pregnant, expecting to become pregnant or have a pregnancy-related medical condition.

In the settlement, CBP agreed to create and enact a new policy that presumes pregnant officers and agriculture specialists can continue to serve in their positions, rather than being placed on light duty without a request. CBP will also create a “non-exhaustive” list detailing the rights and reasonable accommodations that are available to pregnant employees. And any pregnant CBP employee who’s currently on light duty will be able to return to their normal schedule, if they choose.

A CBP spokesperson said the agency periodically reviews its policies and procedures to ensure all employees have opportunities for advancement. In total, nearly 7,000 women are law enforcement officers employed by CBP.

“We are better because of these strong, capable and resilient women that are serving at every level, in and out of uniform,” the spokesperson said in a statement. “While we continue our efforts to recruit and retain a workforce that represents the public we serve, we are also committed to taking care of our people and continually taking steps to improve.”

The spokesperson added that CBP is committed to enforcing all current procedures, while also training employees on agency policies.

Nationwide, one in five working mothers has experienced discrimination based on pregnancy, according to 2022 data from the Bipartisan Policy Center. The survey results showed that close to one quarter of working mothers considered leaving their jobs due to a lack of reasonable accommodations or for fear of discrimination during pregnancy. Additionally, 21% said that they have been scared to tell their employers about their pregnancies due to fear of retaliation.

The 2023 enactment of the Pregnant Workers Fairness Act built up the rights of pregnant employees in the workplace. The legislation requires all employers, including federal agencies, to offer accommodations to employees who have “known limitations” in the workplace stemming from pregnancy, childbirth and related medical conditions. Under the law, employers have to grant reasonable accommodations — such as more frequent bathrooms breaks or flexible hours to attend medical appointments — that employees request, as long as the accommodations don’t cause “undue hardship” to the employer.

The Pregnant Workers Fairness Act altered CBP’s policy by replacing the previous light duty directive, the agency said. Since the enactment of the 2023 law, pregnant employees can now request reasonable accommodations through the agency’s privacy and diversity office.

The settlement at CBP comes about a year after an EEOC administrative judge ruled in favor of the group of employees and upheld the class in an August 2023 decision. CBP previously issued an appeal on the initial class certification decision in May 2023, at the time saying the case did not meet commonality requirements and the number of employees affected was “relatively few.”

Although the agency said it does not comment on litigation, CBP’s workplace policies prohibit retaliation or intimidation of employees who participate in or support the legal action, CBP said.

“CBP has a well-documented history of forcibly sidelining their employees when they report their pregnancies. This policy created tremendous emotional and economic harm for these women, and we are pleased to have secured justice and accountability for their mistreatment,” Shannon Leary, a partner at Gilbert Employment Law, said in a statement. “This settlement is about more than rectifying a discriminatory practice — it’s about making the entire agency a fair workplace for everyone.”