Pregnant Employees at Customs and Border Protection Regularly Discriminated Against, Class Action Lawsuit Alleges

The Homeland Security Department has allegedly discriminated against certain pregnant women for years by forcing them to forfeit some of their duties, according to a lawsuit filed by a group of employees who were recently certified to bring their case as a class action. 

The employees all worked at Customs and Border Protection’s Office of Field Operations at the time of the alleged discrimination. They brought their case before a field office of the Equal Employment Opportunity Commission, which found in a recent ruling that any pregnant employee required to enter “temporary light duty,” or TLD, since July 2016 would be eligible to join the class. 

According to agency policy and protections afforded by the 1978 Pregnancy Discrimination Act, pregnant employees should only enter light duty status if they request it. Instead, the complainants said, their supervisors required them to surrender some duties as soon as their pregnancies were disclosed. They said temporary light duty status offers fewer chances for overtime and other differential pay, lowers the chances of promotions, allows for fewer training opportunities, makes preferred schedules more difficult to earn and requires the surrendering of their right to carry a firearm. In some cases, they added, employees then have to requalify to carry their gun. 

Pregnant employees were treated differently than others who went onto the temporary status, they said, as they were never provided an opportunity to prove they could still carry out their normal duties. 

“As soon as I let my supervisor know I was pregnant, I was immediately sent home and then put on light duty,” said Roberta Gabaldon, a CBP employee and a class agent who helped bring the case. “There was no conversation about my ability, it was just assumed. It seemed that the agency believed that my pregnancy would impede my competency.” 

CBP countered that the complainants lacked “commonality” that is required for a class-action case. If mandatory TLD occurred, it went against agency policy and was required only because supervisors were acting without proper authority, the agency argued. There is no “overriding agency policy or practice” of discrimination, CBP said, adding that the complaints stemmed only from a handful of offices. Additionally, the agency contended the employees bringing the case did not meet the “numerosity” threshold because only 23 individuals delivered sworn testimony that they were forced onto the light duty status. 

CBP conceded that if employees were forced to surrender duties solely because they were pregnant, it would violate anti-discrimination laws. The complainants said CBP’s policy does not specifically preclude involuntary TLD for pregnant workers and the agency failed to properly train its supervisors on its implementation.

Kevin Rung, an EEOC administrative judge, noted a review of CBP data found more than 500 pregnant women were placed on TLD since July 2016. The complainants were not yet responsible for proving all of them were discriminated against and the roughly two-dozen sworn testimonies—which came from 11 of CBP’s 20 field offices—were sufficient to certify the class.

“The class agents have submitted sufficient probative evidence that the agency subjected pregnant employees to a policy that distinguished pregnancy from other short-term impairments and involuntarily placed them on TLD because they were pregnant without regard to whether they can continue to perform the essential duties of their positions of record,” Rung said. He added a class case was “the most efficient and equitable method of adjudicating claims of this size.”

CBP, which did not respond to a request for comment, must in the next 30 days “use all reasonable means” to contact all potential class members to inform them of the class’ certification, the EEOC judge ordered. That should include emailing, hand delivery of a notice or mailing a notice to their last known address. 

“Our clients endured what is all too common in the workplace: faulty assumptions that a pregnant employee can't carry out their job duties,” said Cori Cohen, a partner at Gilbert Employment Law who is representing the class. “Through this lawsuit, we seek to hold the agency accountable for its failures to provide these women with the opportunities and protections required by law.”

She added the class certification “brings us one step closer to justice.”

Gabaldon said she hoped the case would cause CBP to change its policy. 

“I am grateful that our voices are being heard, and hopeful that this suit will help bring an end to pregnancy discrimination at CBP,” she said.