Pregnant workers can move forward with class lawsuit alleging discrimination at CBP

Customs and Border Protection employees are moving forward with a class lawsuit alleging years of discrimination against hundreds of pregnant workers at the agency.

After CBP appealed the initial class certification decision in May, an administrative judge at the Equal Employment Opportunity Commission ruled in favor of the group of employees and upheld the class in an Aug. 30 decision.

The CBP employees said after telling their supervisors they were pregnant, they were systematically forced into temporary light duty (TLD) status, regardless of whether they requested it. The case specifically alleges 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.

At the time that CBP appealed the class certification decision, the agency said the case did not meet commonality requirements and that the testimony of the so far 24 employees in the case were generally not similar enough to constitute a class. The agency also said the number of employees affected was “relatively few.”

But EEOC dismissed the agency’s appeal and said based on the evidence so far, supervisors had treated the employees consistently after learning they were pregnant. Additionally, although there is testimony from just a couple dozen employees, it’s estimated that the class contains about 515 individuals in total. Ultimately, the EEOC administrative judge reversed the agency’s final order that had rejected class certification.

“Despite working at different duty stations across the country, employees were treated in a consistent manner once the agency learned that they were pregnant,” EEOC Director of the Office of Federal Operations Carlton Hadden said in the decision. “Accordingly, we find that the administrative judge’s determination that they established commonality and typicality for class certification is supported by record evidence.”

Now after the upholding, any CBP employee who was involuntarily placed on TLD on or after July 18, 2016, due to their pregnancy is considered eligible for the class. Nearly 80% of all TLD placements for pregnant employees originated from the agency’s eight largest field offices, EEOC found. In total, the current and former employees in the case are from eleven different CBP field offices.

When put on TLD, employees usually have to temporarily work in a different position within the agency and see cuts to benefits such as overtime pay, training eligibility, promotional opportunities and the ability to obtain preferred work schedules. Employees said they also lost their right to carry a firearm and later had to requalify for it.

“Class members who carried weapons averred that they were required to return their weapons because they were pregnant and had to requalify upon their return to full duty,” Hadden said. “They were then assigned to various light duty positions, such as cashier positions, which affected their ability to work overtime or earn additional compensation, such as night differential pay.”

Cori Cohen, partner at Gilbert Employment Law and appointed co-counsel for the plaintiffs, said EEOC’s ruling validates the experiences of CBP employees who lost job opportunities when they became pregnant.

“The agency implemented a widespread policy based on patriarchal stereotypes about the abilities of pregnant women,” Cohen said in a statement.

In one example, a pregnant employee at CBP was required to get a doctor’s note stating that she needed light duty, removed from her agriculture specialist position and mandated to train her colleagues on her job duties, EEOC said. The employee’s supervisor also put her on an overnight shift and required her to work more than 40 hours a week against her medical restrictions.

And another class member, according to EEOC, said she hid her pregnancy for as long as possible because she knew from the experiences of other pregnant employees that she would be immediately instructed to go on light duty due to her pregnancy.

Roberta Gabaldon, a CBP employee and one of the class agents, said she was grateful for EEOC’s upholding of class certification.

“When I let my supervisors know I was pregnant … I was devastated to endure a humiliating forced reassignment and a complete disregard for my ability to keep working as I was trained to and in a job that I loved,” Gabaldon said. “[I] hope that through this decision we can create meaningful change at the agency.”

CBP has until Sept. 14 to notify all class members of the certification of the class complaint.

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