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Under pressure, Wal-Mart upgrades its policy for helping pregnant workers

TIffany Beroid had to take two months off before giving birth to Ameyah. (Lydia DePillis/Washington Post)

When she was seven months pregnant, Tiffany Beroid's feet started to swell. Her blood pressure began swinging wildly, and dizzy spells hit unpredictably. That made it hard to keep doing her job as a customer service manager at a Wal-Mart in Laurel, Md., which requires pitching in wherever help is needed, pushing carts, lifting boxes, making sure all the registers cash out.

Beroid got a doctor's note saying she needed to take it easy -- but, she says, bosses told her they didn't have any light-duty work.

"It was kind of frustrating, because I couldn't be a cashier or a greeter who sat on a stool from time to time," says, Beroid, 29, while playing with her wide-eyed toddler, Ameyah. "At that point I would've taken it, even if it was a pay cut, but I wasn't given that option. They basically told me I would have to take my pregnancy leave now."

With no work, Beroid couldn't afford tuition payments for her community college nursing program, which meant missing the final exam; she'll have to take the class over. Her husband, a security guard, pulled 18-hour shifts to keep paying the rent. Meanwhile, Beroid started networking on Facebook with other women who'd had similar experiences, and was contacted by a labor union-backed workers group called OUR Walmart that made her a poster child for a campaign on pregnant workers' rights.

Finally, in early March, Wal-Mart quietly overhauled its pregnancy policy, in a shift that might have changed things for Beroid -- and could still ease the way for hundreds of thousands of its other female employees who could have babies down the road.

Such problems certainly aren't unique to Wal-Mart. The Equal Employment Opportunity Commission received 5,797 pregnancy-related complaints in 2011, from all sectors of the economy; with more women working through pregnancy, employers have been figuring out how to modify their duties as they become more difficult to perform.

But women's rights groups say they hadn't encountered any large employer with a pregnancy policy so unfriendly to women as Wal-Mart's. And anytime the world's biggest retailer changes how it treats its workforce -- especially women, with whom the company has a fraught history -- the rest of the industry tends to take notice.

Under the original policy, pregnant women could only qualify for a change in their work environment that was "both easily achievable and which will have no negative impact on the business," which would not include "creating a job, light duty or temporary alternative duty, or reassignment." That meant they weren't entitled to the same consideration a disabled person with comparable handicaps would receive.

In January 2013, a group called A Better Balance wrote to Wal-Mart arguing that the policy violated the Americans with Disabilities Act and the 1978 Pregnancy Discrimination Act. And besides, they say allowing pregnant women to do easier jobs, rather than taking early leaves of absence, can make a big difference.

"Really what's a very minor fix has huge implications for the health of the women and the baby, and for a family's economic stability," says A Better Balance's co-president Dina Bakst. "Many companies just say it's a smart thing."

Wal-Mart responded a year later with a letter stating its policy was perfectly legal, and would not be changing.

But a few days after that, women's groups helped file a complaint with the Equal Employment Opportunity Commission on behalf of a pregnant employee whose supervisor refused to relieve her of duty climbing ladders with heavy boxes, even after she came with a doctor's note explaining the work could be harmful. A month later, two Wal-Mart shareholders -- who also work at Wal-Mart -- filed a proposal with the Securities and Exchange Commission requesting that the policy be changed.

On March 5th, the company issued a new policy, which says that women "may be eligible for reasonable accommodation" if because of a "temporary disability caused by pregnancy" they "need assistance to apply for a new job, or to perform the essential functions of a job." In theory, that means that pregnant Wal-Mart employees are more likely to be given less physically demanding work if they're having difficulty carrying out their duties.

Wal-Mart says the activists didn't force it to do anything. "Our previous policies met or exceeded state and federal law. Now with our new policy, we're going above what the law requires," says spokesman Randy Hargrove. "We believed it was the right decision for our associates, and we made it."

Still, a slew of women's and labor groups said in a letter to Wal-Mart yesterday that the new policy isn't good enough. Even though the company insists that the policy covers accommodation a worker might need in the course of a healthy pregnancy as well as a disability due to complications, advocates worry that the phrasing doesn't make it explicit.

"Our concern is that the word 'disability' can be a tricky word," says Emily Martin, general counsel for the National Women's Law Center. "It invites a lot of frankly ridiculous conversations about whether the medical accommodation you received is based on the pregnancy itself, or illnesses associated with the pregnancy."

But was either the old or the new policy illegal? That's a matter of debate. Courts have generally sided with employers -- including Wal-Mart -- in their narrow interpretations of the Pregnancy Discrimination Act.

In 2012, for example, an appeals court dismissed charges from a woman who had miscarried twice after Wal-Mart declined to create easier jobs for her, since she'd failed to demonstrate that she'd been treated any differently than someone with a regular disability. It's very difficult to prove discrimination if you have to produce a person in the exact same circumstance who got more help.

According to University of Dayton employment discrimination expert Jeanette Cox, both of Wal-Mart's policies would likely hold up in court -- which illustrates a weakness in the law itself.

"Their policy is written in such a way that complies with federal law," Cox says. "It's just that the federal law sucks."

In large part, that's because the employer has wide latitude to decide the meaning of words, like the ones that appear in Wal-Mart's new policy. "Its impact presumably will depend upon what the employer considers a 'reasonable' accommodation and how 'disability' is interpreted," says University of Pennsylvania Law School professor Serena Mayeri.

In addition, a worker's experience always depends on the individual store; Wal-Mart furnished two employees who spoke glowingly about how they were treated while going through complicated pregnancies.

"At times it was difficult, but I let my management know that I was pregnant, and right away, they attended to me, they always went out of their way to make sure I was doing okay," says Stephanie Alvarado, who had been working for Wal-Mart in San Diego for about a year before giving birth. "Any limitations I had they would accommodate, they went above and beyond." (She didn't have enough hours to qualify for Wal-Mart's health insurance, though; California's insurance program for low-income workers covered her month-long hospital stay.)

The company's new policy, however, doesn't necessarily guarantee that everyone will be treated like Alvarado. Since 2012, legislation has been pending in Congress that would largely resolve that uncertainty, making it illegal to not accommodate pregnant workers and directing the Equal Employment Opportunity Commission to define what that means. The bill has 121 cosponsors, but hasn't yet made it out of committee.*

* Corrected to reflect the fact that the U.S. Chamber of Commerce has not taken a position on the bill.