Under an image of the Statue of Liberty, set against a waving American flag, the Customs and Border Protection (CBP) website describes the agency’s commitment to “nondiscrimination in the workforce.”
CBP’s self-praise includes its dedication “to preserving individual liberty, fairness and equality under the law.”
But those notions of nondiscrimination and fairness took a big hit last week with a tentative Equal Employment Opportunity Commission (EEOC) legal settlement that would award $45 million to CBP employees who were discriminated against because of their pregnancies. Rather than affirming federal law, the case points to the agency’s violation of the law, specifically the Pregnancy Discrimination Act.
Although the agency, billed as “the nation’s largest law enforcement organization,” with more than 65,000 employees, did not admit any wrongdoing, Troy A. Miller, the acting head of CBP, didn’t agree to that amount out of charity. Miller signed the agreement to pay CBP officers and agricultural specialists who were assigned to temporary light duty because they were pregnant, regardless of their ability to perform their regular duties. Light duty can negatively affect employees’ income and opportunities for advancement.
A CBP official, who spoke on thee condition that they not be identified or quoted directly during a phone call, said there never was a policy mandating light duty for pregnant people, while acknowledging managers sometime operate outside of agency guidelines. Light duty always was an employee option, the official said. Almost 30 percent of the agency’s Office of Field Operations, where officers and agricultural specialists work, are women, including its top leader. The agency considers its gender diversity a model among federal law enforcement agencies.
In a statement, the agency said it is “committed to taking care of our people and continually taking steps to improve. We are committed to training our employees on proper and consistent procedures, enforcing them, and periodically reviewing agency policies and procedures to ensure employees have all available opportunities for advancement.”
“I don’t think there was anything malicious about this,” Joseph Sellers, a partner at Cohen Milstein Sellers & Toll, said of the discrimination during a telephone interview. His firm and Gilbert Employment Law represented a group of more than 1,000 women who work at CBP, who will receive between about $7,000 and $100,000 each, depending on individual circumstances. Included in the $45 million for CBP employees is $9 million in attorneys’ fees.
If maliciousness didn’t play a role, there was “probably a paternalistic view about pregnancy,” he added, among supervisors who doubted the ability of pregnant employees to do the job or the safety of the fetuses when those employees were on their regular assignments.
“I would never do anything to put my child in harm, whether he’s in my belly or outside in the world,” Roberta M. Gabaldon, an agricultural specialist in El Paso and the lead complainant, said during a sometimes tearful video call. “We can make a decision,” she added, “with our doctor as to what we can and can’t handle as pregnant women.”
She playfully announced her pregnancy to colleagues by taking pink and blue doughnuts to work with a note that read, “pink and blue, pink and blue, somebody’s pregnant, guess who.”
Her joy was smashed when her boss went to her cubicle and told her, in front of co-workers, to go home. She already was on light duty, training other employees. When she returned two days later, she was placed on even lighter duty as an agency cashier, despite her degree in agricultural biology.
“So, I wasn’t utilizing my degree any longer,” she said. “I was basically doing a job similar to the jobs I did to put myself through college. So, it just felt like a big downgrade.”
Certainly, there are situations that could be especially hazardous for pregnant officers, such as chasing suspects. But when agency witnesses were asked what percentage of the time those situations occur, Sellers said, “they described it as a very, very small.” Furthermore, the officers work in teams, so during the few times a CBP operation could be hazardous for a pregnant officer, a colleague could take the needed action.
CBP argued against certifying the case as a class-action covering a large group of workers. A CBP document submitted to EEOC says the complaint was “based on a handful of isolated, disconnected incidents culled from … the entirety of the Agency’s international operations over a period of seven years.”
“Even if true,” CBP told EEOC, the allegations of bias against pregnant women “are at most unfortunate examples of individual supervisors on their own initiative disregarding or misapprehending well established Agency policies.”
Although the settlement is tentative, it was preliminarily approved by an administrative judge. Final approval is expected in late September. This victory for CBP women goes well beyond the money. The case could move the agency’s culture away from one in which women felt they were not heard to a work environment where their issues must be recognized. A key change calls for “a minimum of 60 minutes of live, interactive, and comprehensive training for all managers and supervisors regarding the rights of pregnant law enforcement Officers and Agriculture Specialists,” according to the settlement agreement. CBP also will develop policies that assume pregnant employees can continue in their positions unless medical evidence indicates otherwise.
Changes in CBP’s work culture also should extend to the fear of reprisals among employees who dare to challenge unfair agency practices, unfortunately a familiar feeling in federal workplaces. That concern was strong enough that Nancy E. Graham, the EEOC administrative judge in this case, issued an order saying, “The Agency is on NOTICE that retaliation and/or intimidation of witnesses and/or class members for the claimants will not be tolerated.”
Gabaldon knows that fear, but “this wouldn’t have happened without Roberta,” said Gary Gilbert, another of her lawyers. A common theme “echoed over and over again” by CBP women, he recalled, “was this feeling that they were not as valuable because they were pregnant.”
With the changes flowing from the settlement, “future women who come into this agency won’t have to be afraid anymore, hopefully, of getting pregnant or retaliation,” Gabaldon said. The emotional toll on her was clear. Her emotions, she explained, reflect “how much of a struggle it was to get here.”
It was a long struggle. The son she was pregnant with when all this started will be 9 in December.
