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Tragic ending after alleged discrimination against pregnant Albertson’s employee

Tragic ending after alleged discrimination against pregnant Albertson’s employee

By Claire Prestel, Staff Attorney

Last week, my colleague Vicky Ni blogged about EEOC v. Houston Funding II, Ltd., the Fifth Circuit’s ruling that discrimination against breastfeeding workers is discrimination against women. That’s a great (long-overdue!) victory, but as Vicky mentioned, the sad truth is that many employers continue to discriminate against pregnant women and women with pregnancy-related medical conditions. One particularly heartbreaking case, García v. New Albertson’s, is pending now in California. (For a news account of the García case, see this HuffPost piece.)

Reyna García began working for Albertson’s grocery stores in 2007. She received numerous merit-based bonuses and in 2010 was promoted to General Merchandise Manager. In 2012, while still working for Albertson’s as a GMM, she became pregnant with a little girl.

Because Ms. García had previously delivered a baby at only six months, her doctor told her she couldn’t lift more than 15 pounds during her pregnancy. Ms. García gave her supervisor a doctor’s note explaining this restriction and asked to be temporarily re-assigned to some lighter duty work in her store.

Instead, Ms. García alleges, her supervisor refused to consider an accommodation even though other employees with temporary disabilities had been accommodated in the past. Ms. García also alleges that her supervisor later rolled his eyes when she mentioned her worsening medical condition and actually made her job harder by assigning her assistant to a night shift so that she had to push, pull, unload and shelve pallets of heavy merchandise all by herself. Ms. García says the supervisor also required her to do the heavy work of re-stocking the liquor department, which was ordinarily done by others.

As time passed, Ms. García began to suffer increasing pain, anxiety and extreme exhaustion. She told her supervisor and presented three different doctor notes. All to no avail.

On November 11, 2012, Ms. García became very sick at work. When she came in the next day she asked for permission to leave early, explaining that she was experiencing tremendous pelvic pressure. Ms. García alleges that her supervisor refused to let her leave and that she was forced to do heavy lifting work that day.

When Ms. García got home from work on November 12, her amniotic sac began to bulge from between her legs. She was rushed to the emergency room. She remained hospitalized and was able to keep her baby inside her and alive for three days, but on November 14 her water broke.

On November 15, Ms. García’s doctor told her that the scratching sensation she felt was her baby’s fingernails and toes, and that her amniotic sac was completely gone. The doctor also said her baby was becoming increasingly brain damaged and could not survive, and that it was time to let the baby go.

On November 17, after being induced at only 20 weeks, Ms. García gave birth to a baby girl named Jade. Then Ms. García and her husband watched Jade die. Ms. García’s complaint describes how Jade gasped for air and turned from pink, to purple, to almost black as her hearbeat slowed. After Jade’s death, and after undergoing dilation and curettage, Ms. García asked for Jade’s body, and she kept it with her until she was released from the hospital.

As if that weren’t enough, Ms. García alleges that when she returned to work she found that Albertson’s had retaliated against her by taking away her supervisorial and merchandise ordering responsibilities and that her supervisor further retaliated against her by issuing a baseless write-up.

Ms. García has now sued Albertson’s for retaliation and for violating its duties under California law to consider and make reasonable accommodations. She is represented by Lauren Teukolsky and Rebecca Peterson-Fisher from Traber & Voorhees in Pasadena and by Hernaldo J. Baltodano and Erica Flores Baltodano from Baltodano & Baltodano in San Luis Obispo. There’s been no ruling on the merits of Ms. García’s case, and a judge or jury will have to assess the facts.

Even without a ruling, however, Ms. García’s story is disturbingly typical in several ways that seem unlikely to be disputed. For example, many women in relatively low-wage fields, like Ms. García, do physically demanding work and have little negotiating power vis-à-vis their supervisors, according to a new report by the National Women’s Law Center and A Better Balance.

And many women, like Ms. García, keep working through pain and fear because their families need their income and health insurance. The NWLC/ABB report says that working women are the primary breadwinners for more than 41 percent of families and are co-breadwinners (bringing in 25-50 percent of earnings) for another 23 percent of families. Low-wage women workers are even more likely than others to bring in crucial income, and, as the report explains, these are the women who “can least afford to go without a paycheck at a time when they will soon have a new mouth to feed.”

So here’s a newsflash that shouldn’t be news to anyone: More and more pregnant women are working, working closer to their due dates, and providing essential income and benefits for their families. This means that if we are going to get serious about restoring the middle class, part of our effort must go to protecting these women so they can support their families. The NWLC/ABB report outlines concrete steps that can and should be taken right now, including guidance the EEOC can issue without presidential or congressional action.

Not all pregnant women who allege discrimination at work experience the devastating loss of a child. But one is too many.