2020 has, among many other things, been a case study in the infuriating ways that companies behave badly. There's been story after story on corporations treating essential workers poorly (as if they're not essential) during COVID-19, and with Black Lives Matter protests galvanizing the nation, workers in various industries have been coming forward about the racism they've faced, including at Refinery29.
Now, Refinery29 can exclusively report that Chipotle is paying $46,220 in damages, penalties, and attorney's fees for allegedly discriminating against a pregnant employee in one of its New York City locations. The employee, a Chipotle line cook, filed an official complaint with the New York City Commission on Human Rights (NYCCHR) in February 2016 after she was denied a request to be excused from lifting heavy objects. "Chipotle, I think like a lot of fast food restaurants, kind of requires everyone to do everything," says Kyle Rapiñan, an attorney with the NYCCHR's Law Enforcement Bureau who was involved in the case. "[The issue] eventually got up to the district manager that oversees multiple Chipotle stores," they say.
Though the complaint was filed in 2016, a conciliation agreement was only reached this July, speaking to how long it can take for a discrimination case to be thoroughly investigated — and the sheer number of cases there are. "We interviewed a lot of people, we looked at [Chipotle's] policies extensively over multiple years," says Rapiñan. "It was a lengthy case, but ultimately the affirmative relief here impacts all the Chipotles citywide. And it also sends a strong message to employers that as they bring people back after COVID-19, if one of their workers is pregnant, they need to engage in cooperative dialogue and make sure that the worker can perform their job to the best of their ability." The award includes $11,220 in backpay and $15,000 for emotional distress to the employee.
"At Chipotle, the health and safety of our employees and guests is our top priority. We have a zero-tolerance policy for discrimination of any kind," says Laurie Schalow, chief corporate affairs and food safety officer, in a statement to Refinery29. "Chipotle is committed to creating a safe and engaging work environment and to complying with all laws, rules, and regulations pertinent to our business."
"Chipotle's engaged and hard-working employees are what makes us great, and we encourage our employees to contact us immediately, including through an anonymous 800 number, with any concerns so we can investigate and respond quickly to make things right," the statement continues.
Pregnancy discrimination at work has been illegal under federal law since 1978, but that certainly hasn't eradicated it. The law has little power when there isn't more muscle behind enforcement. That muscle is exactly what the NYCCHR represents. It also helped, in this case, that NYC has more comprehensive pregnancy discrimination laws than many other areas of the country. "New York City [human rights] law is one of the most robust, and the commissioner is taking a strong look at making sure that this law is enforced," says Rapiñan. In NYC, for example, employers are required to enter into what's called a "cooperative dialogue" when a pregnant employee asks for an accommodation, in which they have a conversation to figure out what that employee needs — that's not required federally, or in many other local jurisdictions. And when an employee asks for an accommodation, employers have to produce a written record of what accommodation they provided, or why they didn't.
Often, pregnancy discrimination has devastating consequences for employees. Being awarded damages in court is important, of course, but it can't reverse the harm that those who have been discriminated against faced. Because pregnancy discrimination is particularly time-sensitive, the NYCCHR has a mechanism in place to try to help workers in the immediate. "We have this process called early intervention," says Rapiñan, explaining that if a worker calls the NYCCHR to complain, the commission will in turn call their employer to remind them of the law and their obligation, and put them on notice — basically, the NYCCHR is watching.
The Chipotle case in particular hinged on the fact that the restaurant chain required its pregnant employee to bring in a doctor's note before they would excuse her from heavy lifting — but under NYC law, requiring a doctor's note for a simple ask is considered an undue burden, and it's illegal. The dispute didn't end up making it to court; Chipotle instead entered a conciliation agreement with the employee and NYCCHR.
The case effected policy change for all Chipotle locations in NYC, including mandating all their general managers to be trained for pregnancy discrimination. "We're also monitoring about 15 of their stores for a year to make sure that they accommodate people," Rapiñan says. "All NYC employees will receive an addendum to their standardized Chipotle handbook that specifically details what rights they have in NYC that they may not have elsewhere."
The NYCCHR focuses a lot on education because it's the key to preventing employers from violating the law and the key to empowering employees. "We find it's incredibly common that both the store-level managers and the employees are unaware of their entitlement to accommodation," says Katherine Greenberg, the assistant commissioner in the NYCCR's Law Enforcement Bureau. "I see this most critically with the right to accommodation for people who are experiencing domestic violence or stalking or have been assaulted," she says. "There's almost no understanding on the ground that people have rights, and that managers have obligations to accommodate people who have needs related to those things."
"There are so many people who experience discrimination who never come forward," says Greenberg. "We see a lot of instances where pregnant people need something relatively small and are dismissed out of hand or told to go on leave early or just sort of shoved out of the workplace."
Though pregnancy discrimination exists everywhere, Greenberg says it's especially rampant in the foodservice industry. "There's a lot of lifting and standing and bending involved in that work," she says. Employers often resist making even small accommodations for these physical burdens, like allowing an employee to sit, eat at their desk, go on more frequent bathroom breaks. "[They say] 'I can't, there's nothing special about you. You have to do what everyone else does.' And that's totally antithetical to the notion of an accommodation, but we see that a lot," says Greenberg.
The pandemic has put into even sharper focus how much dismissiveness employers have for certain groups of workers, including pregnant workers. Over 50 million people lost their jobs over the last six months, but we can't pretend it's been a random sample of 50 million Americans. People of color (especially women), women with children, and people with disabilities were often laid off first.
With COVID-19, many companies have instituted sweeping work-from-home policies — an accommodation that's often denied to workers who are pregnant, have children, or have disabilities. "We've been seeing folks coming to us with pregnancy-related and disability-related [cases], where for the first two or three weeks of March, they were saying 'Help, I need an accommodation, you're endangering my life.' Then finally the employer said 'Fine, we're all shutting down. And you, by the way, you're laid off,'" says Greenberg.
How can federal pregnancy discrimination law learn from NYC's? For one, in NYC the discrimination law must be followed by any employer with four employees or more. "The minimum for federal law is 15," says Greenberg. "[There are] so many employers out there who aren't covered at all, who can just willfully discriminate against people if there's no local law with a lower employee minimum."
She also says employers making their best attempt to fulfill accommodations requested by pregnant workers isn't required under federal law. And in NYC, employers have to engage in cooperative dialogue — if they don't try to, that in itself breaks the law. The federal law equivalent, called "interactive process," isn't mandated. Both Rapiñan and Greenberg say they can't overstate how important cooperative dialogue is in combating pregnancy discrimination at work. "That goes so far — just requiring people to have the conversation," says Greenberg.
There's room for improvement in NYC discrimination law too, of course. Rapiñan says childcare is one area where that's true. While it's illegal for people with children to be treated differently than people without children, the law doesn't extend much beyond that. "Some people think that they can get a reasonable accommodation for childcare, and under our law right now that is not there," Rapiñan says. It's an especially glaring omission given the gigantic childcare crisis we're facing during COVID-19. Whether the pandemic will finally fast-track the sea change we need in affordable, accessible childcare remains to be seen.
Workplace discrimination is particularly frightening and damaging right now, when jobs are scarce and Americans are struggling to afford food and rent. "People need income," Greenberg says. It sounds obvious, she knows, but too often, employers act like it isn't. "I used to represent low-income workers and cases, including many pregnancy discrimination cases. And I can't tell you how many people I've spoken to who were sent home or fired because they were pregnant — either because they were asking for an accommodation, or because the employer said to them, 'I'm giving you what you want, which is to be safe and rest and be with your baby.'"
"It's hard to communicate how devastating that is to somebody who is so excited about their pregnancy," she continues. "Now all of their emotional energy goes into fear and anxiety about losing their home, losing their stability — the whole future that they were envisioning for themselves and their child."
"I wish that more people who haven't had a pregnant worker in their lives understood how much pregnant people need to work, when they need to work," says Greenberg. "Oftentimes, what other people think might be best for a pregnant worker is really not what's best for a pregnant worker. I just wish they would take that lens of what it means to be a low-wage working person who is pregnant."
Rapiñan hopes that more pregnant workers, especially those that live in NYC, become aware that they're protected under the law. "I think there's a lot of fear — rightfully so in some ways because retaliation is rampant — but people are covered under our law," they say. "And the commission takes this very seriously, and we will engage in a robust investigation."
"I want them to follow the law," agrees Greenberg. "We're going to come after them if they don't."