Tennessee among states with few protections for pregnant workers. After miscarriage report, new effort aims to change that.

After hours of heavy lifting at her job, Tasha Murrell had a miscarriage. Now, with a new effort to protect pregnant workers forthcoming to her state legislature, Murrell is on a mission to ensure other women don’t face the same ordeal.

At the time of her miscarriage in April 2014, Murrell worked at Verizon’s east Memphis warehouse, where workers turn orders for cell phones and tablets into shipments both large and small. Operated by the $9 billion dollar-valued XPO Logistics corporation, the warehouse was recently the subject of a New York Times expose, involving Murrell and five other warehouse workers.

Each miscarried after their requests for light duty were denied, the New York Times reported.

That would be illegal in any of the 23 states and five municipalities where local anti-discrimination laws for pregnant workers are on the books. Tennessee is not among them, though that could change in the next legislative session.

“It’s not right for companies to treat us like this,” Murrell said in a message to The Commercial Appeal, sent through her lawyer. “I want better working conditions for all, but especially for pregnant women,” she said.

Since leaving her job at the warehouse last year, to join the Teamsters’ efforts to form a union there, Murrell has filed a discrimination complaint with the Equal Employment Opportunity Commission and traveled to Seattle, Washington and Lyon, France to attend shareholder meetings of both Verizon and XPO, to demand action from executives.

An XPO spokesperson told the New York Times that the women's claims, that they were denied requests for accommodation, were “unsubstantiated,” while a Verizon spokesperson said the company was “deeply troubled” and would open an investigation.

But, for Murrell that’s far from enough. “You can’t rely on companies to do the right thing,” she said.

“Having a law to rely on would go a long way toward making sure what happened to me doesn’t happen to other women,” she said.

New state laws grant upfront relief instead of requiring years of litigation

According to American Community Survey statistics, more than 63 percent of the nearly 4 million women who gave birth in 2017 were in the workforce during their pregnancies. That’s 2.5 million women.

Signed into law 40 years ago, on Oct. 31, 1978, the Pregnancy Discrimination Act is the only federal law which grants pregnant women some workplace protection.

But, the law as initially drafted, four paragraphs long, leaves the requirement to fulfill pregnant worker’s requests for reasonable accommodations — such as lighter lifting duties — open to interpretation. Employers are only required to fulfill requests for accommodations if they are already doing so for similar workers. In a workplace where no one is granted an extra break, the New York Times pointed out, a pregnant worker has no legal right to an extra break either.

The vagueness of the law has resulted in a slew of federal complaints filed by women workers who’ve been fired or forced to take unpaid leave across the country in recent years, including: A Walmart worker in Georgia who was called a “liability” after she brought in a doctor’s note that said she should avoid heavy lifting; a UPS worker in Maryland who similarly asked for lighter duty; another Walmart employee in Kansas who asked to carry a water bottle; an Indiana woman who was an activity director at a nursing home seeking a temporary reprieve from strenuous activity. 

In many of the suits, filed under the federal Pregnancy Discrimination Act, the women lost their cases after years of litigation. 

In contrast, the newer state-level Pregnant Worker Fairness laws are “proactive” in offering upfront protection, akin to the Americans With Disabilities Act, said Elizabeth Gedmark.

A Senior Staff Attorney with A Better Balance, a legal clinic and national advocacy organization focused on workplace policies that support families, Gedmark represents Murrell in her ongoing Equal Employment Opportunity Commission complaint.

“If you need a reasonable accommodation — something like a stool to sit on or a temporary reprieve from heavy lifting — then you can have that, unless it would be an undue hardship on the employer,” said Gedmark. “You have very clear legal protections.”

When the right to a reasonable accommodation is not up for debate, employers are required to work with their employees to find a solution that works for both parties —before any damages occur.

“Someone shouldn’t have to risk their health and get an on the job injury in order to get legal protections,” Gedmark said. “They need that immediate relief upfront, without years of litigation.” 

State and federal solutions proposed

Come January 2019, with the start of the next legislative session, Tennessee state Sen. Jeff Yarbro will re-introduce the Tennessee Pregnant Workers Fairness Act. The bill was first introduced in 2015, when it was mired in the House subcommittee on Consumer and Human Resources.

“No woman should have to choose between her job and what's best for her child," Yarbro said. “We can't stand by in the face of these tragedies."

He thinks that in addition to supporting women and families, the legislation will be good for business, in improving retention and morale. "We can structure a response that balances employer needs with the moral obligation to ensure pregnant women in Tennessee are safe at work," said Yarbro, who says he hopes to work with legislators on both sides of the aisle.

Another route to greater legal protection for Tennessee women would be an update to the federal law. A bipartisan group of lawmakers, led by Democratic U.S. Sen. Bob Casey of Pennsylvania, re-introduced a federal Pregnant Workers Fairness Act last year after a previous effort stalled in 2015.

Republican U.S. Sen. Lamar Alexander of Tennessee, Chairman of the U.S. Senate’s Committee on Health, Education, Labor and Pensions, is not a cosponsor of that bill. In 2015, Alexander co-sponsored a competing bill introduced by Republican U.S. Sen. Lisa Murkowski of Alaska. A spokesperson for Alexander's office said the Murkowski bill was also aimed at strengthening the existing law. The office of Republican U.S. Sen. Bob Corker of Tennessee said that he would "carefully consider any bill related to this issue that comes before the Senate for a vote."

While the federal effort continues to unfold, women like Tasha Murrell — who live in states without more robust local laws — are left with bringing federal Pregnancy Discrimination Act claims to the Equal Employment Opportunity Commission. Data shows the agency resolved more than 3,700 pregnancy discrimination complaints in 2017, involving at least $15 million in settlements.

But what those figures don’t show are all the women who cannot afford lawyers, said Gedmark. And without the benefit of a local law, legal counsel or abundant job alternatives, many pregnant women are forced to continue working under conditions that pose a risk to fetal health, she said.

“What we have heard time and time again from low-wage workers, particularly from women of color who are experiencing so many layers of discrimination, is that they don’t have that choice to walk away,” Gedmark said.

“They can’t lose their job. They can’t leave,” she said.

Sarah Macaraeg can be reached at sarah.macaraeg@commercialappeal.com or by phone at 901-426-4357. She is on Twitter @seramak.