In late May, a working mom named Dris Wallace filed a complaint to the human resources office at her company. Her manager had been insisting that she keep her toddlers quiet during work calls while working from home during the coronavirus, which she felt was an impossible and discriminatory standard.
A week later, she was fired.
That's when employment attorney Daphne Delvaux stepped in and filed a lawsuit against Wallace’s company on her behalf.
For Delvaux, who specializes in defending mothers facing discrimination at work — or retaliation for reporting it — this is just another day on the job. According to her, “mom bias” has always been a problem in the corporate world, but the coronavirus has exacerbated it. Businesses are under pressure to cut costs, and workers are terrified of losing work, creating fertile ground for abuse. Since many businesses are reopening while so many day cares and schools remain closed, it will probably get worse before it gets better.
In addition to her work as a litigator, Delvaux runs The Mama Attorney, an organization devoted to educating mothers about their rights at work so that they can protect both their time with their kids and their careers as they transition to motherhood.
Here are a few things she wants working moms to know:
Bias against parents — and specifically mothers — arises out of a workplace culture that favors unencumbered workers, Delvaux said. “Employers like people at work who are a hundred percent committed, so they don’t have any other obligations, no health concerns, they don’t have to take a leave of absence, they don’t have to take breaks, they don’t have to ask for accommodation — the employers favor those employees.” As a result, managers operating under pressure to hit quotas are often really hard on employees with obvious limitations or outside obligations.
With mothers in particular, Delvaux has observed a pervasive perception that they are “less available,” and “too distracted” to do their jobs properly. As a result, a lot of mothers face discrimination either before or after maternity leave, based on the assumption that they will be less committed to their jobs. Some of the mothers Delvaux has represented came back from maternity leave only to be immediately replaced, or let go while their employer continued to post new job openings. Others were muscled out, demoted or forced to cut their maternity leaves short.
These cases often have serious consequences. One of her clients ended up in the hospital after her company refused to make accommodations for her high-risk pregnancy. Another was terminated at 39 weeks pregnant after her company doubled her workload and demanded that she carry extremely heavy boxes. She was kicked off her health care and her doctor refused to see her. Another woman was denied the leave of absence that she was entitled to during pandemic-related school closures and as a result, one of her children was injured.
According to Delvaux, this kind of discrimination is everywhere. It’s particularly prevalent in the science and tech industries, Delvaux said, but she’s represented women working in government, in grocery stores and elsewhere.
“There’s not one industry that’s immune,” she said.
Delvaux began the Mama Attorney after discovering that the mothers that came to her were poorly informed about their rights. “I really saw a lot of women who came to me terminated or subject to discrimination at work and when I explained their rights to them, they said ‘no one ever told me,’” Delvaux said.
“You have rights,” Delvaux said. “You have accommodation rights. You have pumping rights. You have a right to time off. You don’t have to push yourself so hard. You don’t have to force yourself and go physically beyond your limit or mentally beyond your limit — the law protects you.”
That said, the regulations surrounding pregnancy, maternity leave and pumping are complex, and employers have little incentive to ensure that women are properly informed about them. Because middle managers are often poorly trained on these topics, women are often given very misleading or inaccurate information.
To help prevent this kind of misinformation during the pandemic, Delvaux created a free covid-19 resource guide for working moms.
The first step in addressing “mom bias” at work is usually to approach the human resources department at your company with your concerns. “The job of human resources is to protect the employee from abusive managers or those who disregard discrimination protection,” Delvaux explained. Many human resource departments do this very well, but sometimes things go awry.
The reality is that human resource workers are paid by the employer and often feel pressure to appease management, Delvaux said. As a result, human resources will sometimes side with management without properly investigating an employee’s concerns.
Many employment attorneys use a contingent fee structure, meaning that they only charge if they win, usually taking a percentage of what is recovered on behalf of their client. Additionally, some states — including California where Delvaux practices — require the losing side to pay the attorney fees of the wronged party in cases involving anti-discrimination laws. These provisions allow Delvaux and other employment litigators to represent lower-income workers without ever charging them.
Discrimination against parents is often veiled under the guise of “business as usual.” Employers will never admit that pregnancy or motherhood is the reason for a termination or demotion. “They will always give a different reason because they’re not stupid,” Delvaux said, “The most common are performance, or lack of revenue.” But that doesn’t mean that discrimination has not occurred.
Lawyers like Delvaux use a variety of methods to uncover the true motivation underlying a company’s actions. “Let’s say it’s layoffs, so financial issues,” Delvaux said, “How many people were terminated? Are they continuing to post job openings? Right now, a lot of terminations are justified by covid budget cuts, but then the next day after they terminate my client, they post a bunch of jobs.”
The law is complicated. That means that proving discrimination or abuse is delicate work. Every situation is different, but Delvaux offered three pieces of general advice for parents facing discrimination at work:
- Keep thorough records of what’s happening. Take copious notes and confirm every conversation with management in writing. “I usually tell my clients to email themselves at the end of the day, so there’s a time stamp on their notes.”
- Choose your words carefully when reporting discrimination. There are no laws against unfair workplaces or difficult bosses. Seeking justice for discrimination requires calling it what it is. “You have to specifically say ‘I feel treated differently because I'm a woman’ or ‘I feel like I'm being discriminated against based on my pregnancy’ or ‘I feel like I'm not being accommodated because of my medical condition.’”
- Keep doing your job if you can. While Delvaux understands the difficulty of staying in a toxic work environment, but except in the most extreme cases of discrimination, it is a lot harder to achieve justice if you willingly walk away from your job.
Taking a stand against your company by asserting your rights or reporting discrimination involves a real risk. “It’s very scary. And it’s scary because unfortunately as you can see in my cases, punishment for speaking up happens all the time and there's almost, as a result, a stigma.”
But speaking out is the only way to change corporate culture, Delvaux says. “If everyone just starts accepting it and tolerating it, it will never go away.” By holding workplaces accountable, women can impact change. “You’re kind of taking a stand and drawing a line in the sand and saying ‘no more’ … this ends with me.”