The Pregnancy Dilemma : Complaints Rise as Demands of Motherhood, Work Collide

In the closet of a studio apartment shared by Anna Ramirez and her husband, amid shirts and shoes, is 5-month-old Karyn Michele’s bed. Against the wall is what for the last year provided much of Ramirez’s livelihood: a large plastic bag stuffed with aluminum cans collected from the neighborhood trash. Ramirez sold the cans to recyclers and used the money to buy Karyn second-hand clothes.

This is not the life Ramirez planned when she became pregnant last January. With a combined income of $26,000, the couple had talked of new baby clothes and perhaps a larger apartment. Then, after her doctor advised she should not lift heavy patients, a pregnant Ramirez was laid off from her job as a health aide at a Northern California nursing home.

“It was so depressing,” said Ramirez, who was forced to seek public assistance for baby food and medical care. “I worked for them four years, and this is what they do to me.”

Though it may appear so, Ramirez’s dismissal was not a simple case of pregnancy discrimination. She said she was let go because her job put her fetus at risk, and her employer was unwilling to assign her easier tasks, such as clipping patients’ nails.

Ramirez’s experience offers a glimpse of what happens when demands of work and pregnancy collide, a situation that is becoming more familiar as employers battered by an economic recession find it too costly to provide pregnant women with alternative jobs.

It is a dilemma that received attention last fall when California Gov. Pete Wilson, concerned about the prevention of birth defects, proposed legislation that would have given the state’s employers permission to refuse employment to pregnant women if the job put the fetus at risk. Women’s groups protested that Wilson’s plan would lead to employment discrimination against all women, and would force more pregnant women such as Ramirez out of work. While the governor’s aides are trying to develop a new plan, their efforts are bogged down in tricky questions of science and law.

There is no tally on the number of pregnant women who are put out of work each year because their work might harm their fetuses. However, most people agree that these women make up a small fraction of the 190,000 working California women who give birth each year.

Nonetheless, the state Department of Health Services reports that complaints of such dismissals are on the rise. “We know women have been fired,” said Dr. Jon Rosenberg, an occupational health specialist at the agency.

Rosenberg said many of the women who call complaints into the department’s confidential hot line hold low-paying, unskilled jobs and are highly vulnerable to a sudden drop in income. Higher-paid skilled workers are not immune, he said. Some high-tech and aerospace firms put pregnant workers on medical leave, with reduced or no pay, from positions that involve fetal toxicants, Rosenberg said.

Though the Department of Health Services lacks jurisdiction over such employment practices, Rosenberg said it is concerned. “We wonder if it is not part of a strategy to eliminate women from the workplace.”

Representatives of the state’s employer groups deny that. The influential California Manufacturers Assn. says its members--the state’s largest industrial companies--are worried about paying claims for fetal injuries sustained in the workplace. CMA lobbyist Willie Washington said for some employers, the dismissal of a pregnant woman “is a legitimate business decision.”

“I am not defending it, but this is how an employer looks at the problem,” Washington said. “The employer can risk being put out of business with a (fetal injury) lawsuit, or take his chances with a sex discrimination case.”

Caught in the middle are women whose work involves fetal hazards. Finding herself suddenly jobless in January, 1991, Anna Ramirez searched for work. The 28-year-old health aide quickly discovered that opportunities for pregnant women are virtually nonexistent. Ramirez recalled that at one company, an interviewer asked her: “If you are pregnant, why are you coming to me?”

When her unemployment benefits ran out, Ramirez resorted to collecting cans and bottles to supplement her husband’s custodian wages. California taxpayers, through MediCal, paid her medical expenses because she lost her health insurance when she lost her job. She obtained baby food through a federal program for infants and their mothers.

Ramirez tried to get her old job back. Last spring she filed a grievance with her union against the Hill Haven convalescent home in Mill Valley, a San Francisco suburb. Hill Haven did not return calls seeking comment for this story, but according to Ramirez and Maria Griffith, her union representative, the nursing home eventually agreed to reinstate her. She returned to work Dec. 3--nearly a year after she left.

Some feminists contend that cases such as Ramirez’ show layoffs are not the answer. “We should be talking about voluntary transfers to non-hazardous jobs,” said attorney Patricia Chiu of San Francisco’s Employment Law Center.

To be sure, many employers offer pregnant employees temporary reassignments to safe jobs. The California Nurses Assn. says hospitals usually shift nursing assignments to accommodate pregnant women. At Southern California Gas Co., pregnant clerical workers are moved on request from video display terminals. Until a recent study proved otherwise, electromagnetic radiation emitted by VDTs had been linked to a high rate of miscarriage.

At Pacific Bell, a supervisor coaxed pregnant telephone installer Nora Bertotti down from 25-foot-high telephone poles with an offer of a desk job at the same pay. Bertotti wanted to keep climbing, but came to appreciate the change. “It worried me to think what might happen to the baby if I fell,” she said. “Besides, my tool belt was getting tight.”

Employers say that if no non-hazardous jobs are available, they put the pregnant worker on medical leave which may qualify her for state disability payments. Douglas Aircraft Co. in Long Beach has such a policy, and according to a spokesman, the company has “had good success with it.”

But with the economy stagnant, there are signs that at least some employers are becoming less accommodating of pregnant employees.

Barbara Ott of 9 to 5, a Cleveland workers’ advocacy group, said complaints of all forms of pregnancy discrimination to its hot line have climbed in the past year. While it is illegal to discriminate against pregnant workers, such charges are difficult to prove because an employer rarely cites pregnancy as a reason for dismissal, Ott says.

When a fetal toxin is involved, women are even more reluctant to challenge a dismissal. “What woman is going to fight for a job that could damage her fetus?” asks one attorney who frequently represents workers.

Last fall, it looked as though California might become the first state to define an employer’s obligations to protect a fetus. Wilson had proposed that the state Department of Industrial Relations decide when fetal hazard existed, and determine whether an employer had taken proper steps to safeguard pregnant workers. As it turns out, that is not a simple task.

On a scientific level, there is not always agreement on which substances are hazardous. Of the 50,000 or so chemicals found in the nation’s factories and offices, 5,000 have been tested for fetal toxicity. Little is known about the rest.

Existing regulations, intended to protect workers, don’t always protect fetuses. Take lead, a metal needed in battery-making that can damage the brain of a fetus and lead to learning deficits and delayed behavioral development. The safe exposure level for adult workers, set by the federal Occupational Safety and Health Administration, is three times higher than what the federal Centers for Disease Control considers safe for fetuses.

In other cases, conditions once thought risky have been found safe. The ubiquitous video display terminal became a suspected reproductive hazard after a cluster of woman at the Toronto Star suffered miscarriages. But last year, a government study declared that the electromagnetic radiation from VDTs was harmless.

The matter is complicated by the fact that many substances that harm fetuses may also cause damage to a man’s reproductive system that later results in birth defects.

The uncertainty has raised the anxiety level of both employees and employers.

According to the Department of Health Services, pregnant women have been laid off from work that exposed them to ammonia and formaldehyde, chemicals that pose no special risks to fetuses. “Your eyes would burn and your skin would fall off, literally, before a fetus would be harmed,” Rosenberg said.

Frantic when a supervisor at Kaiser Permanente-Woodland Hills refused to assign her to low radiation tasks, pregnant X-ray technician Linda Valadez refused to work for one month. Her sick-out eventually won her the transfer, and in a later grievance hearing, she was awarded back pay.

While Valadez was entitled to the transfer under the hospital’s contract with her union, records show she had little to worry about. She was never exposed to the amount of radiation associated with congenital defects and cancer. Nonetheless, Valadez worries that one-year-old Daniel might develop an illness related to his prenatal exposure. Whenever her child becomes sick, she said, “There is that doubt, always a little fear.”

There are indications that a final “fetal protection” bill would not try to identify possible hazards, leaving the final determination in each case up to the legal process. According to those involved in the discussions, the primary focus is on limits of an employer’s liability for injury.

Thanks to a 1989 Court of Appeals ruling, employers can’t be sued for fetal injuries. But many fear that the precedent set by the decision in the case involving a clerk for Macy’s California might not stand. A confidential survey by the California Manufacturers Assn. turned up four employers that paid settlements to children allegedly suffering from workplace-related fetal injuries, rather than go to court. Last year, the Legislature passed a bill sponsored by Assemblyman Richard E. Floyd (D-Carson) that would have permitted suits against employers over fetal injuries resulting from negligence. Wilson vetoed the bill.

Roberta Mendoza, deputy director of the state Department of Industrial Relations, said she is trying to shape a proposal that limits an employer’s monetary exposure. She said the state could limit the size of jury awards. Another plan would create a workers compensation-type system that would pay medical bills of children who suffer from fetal injuries.

Mendoza said that the issue is so divisive it is doubtful that a bill will reach the floor of the Legislature this year.

Floyd, backed by groups representing nurses and trial lawyers, argues negligent employers don’t deserve special treatment. “It is an issue of fairness,” he said.

The state’s employers say that if they are to be held accountable for a fetal injury, then they should be allowed to exclude pregnant women from certain jobs. While labor leaders are opposed, Mendoza considers the trade-off fair.

Indeed, such formal arrangements are not unheard of. Contracts negotiated by some California locals of the Hospital and Service Employees Union, for example, permit hospitals to lay off pregnant workers if a safe job isn’t available. Joan Emslie, an official with a San Jose local, said that one San Jose-area hospital laid off a pregnant laboratory technician a year ago because it had no safe job to offer.

But job counselors argue that extending this policy to all workplaces would be counterproductive. Faced with a layoff, “some women won’t tell anyone they’re pregnant and increase their risk of exposure,” said Ted Smith of the Silicon Valley Toxics Coalition.

Olivia Fernandez, a job counselor for 9 to 5 in Wilmington, said it is not uncommon for part-time or temporary workers to hide their pregnancies to avoid being fired from unskilled jobs that involve heavy-lifting or chemicals. “They are concerned about the baby,” she said. “But they need the job.”