In mid-May, Cierra McClain, a server at First Watch, learned that she was six weeks pregnant. She immediately passed the news along to her manager.
McClain was working at a Durham location of the national breakfast restaurant chain, near Southpoint Mall. Her decision to divulge the pregnancy was driven by a misconception about North Carolina law: she thought that workers were legally obligated to disclose pregnancies to their employers.
A less optimistic person might have based that assumption on our legislature’s affinity for policing the bodies of its constituents, but McClain, a bubbly Georgia native who tries to see the best in people, envisioned the requirement—which, to be clear, does not exist on state nor federal levels—as a common sense safety precaution. In case of emergency, she figured, it was imperative that a supervisor be made aware of a worker’s pregnancy at the earliest possible date.
Indeed, the next month, McClain did find herself in an emergency situation at First Watch: she slipped on a pool of water that had accumulated under a ceiling leak and fell hard on her left side, bruising her hip and knee. When she was seen by a doctor that night, she learned that a blood clot had formed around her placenta.
McClain is okay now, and her unborn child isn’t in danger. But her transparency with First Watch—transparency that she’d imagined would help in a situation like slipping on a wet spot—played no role in her recovery, she says. In fact, it ended up making everything worse.
Fifty years ago, it wasn’t uncommon for pregnant workers to wear girdles and baggy clothes to hide their growing stomachs from bosses.
In 1978, the Pregnancy Discrimination Act (PDA) made it illegal for any company with 15 or more employees to consider pregnancy status while hiring, firing, and enumerating wages. A shift toward a more equitable reality seemed possible. But in the decades since, the efficacy of the act’s protections has been overstated, according to Elizabeth Gedmark, vice president of the workers’ advocacy group A Better Balance and co-author of the book Babygate: How to Survive Pregnancy and Parenting in the Workplace.
For many low-wage workers—whose labor, Gedmark notes, is often made “invisible in our country”—the PDA’s stated protections have not translated from theory to practice. Specifically, gaps in the law have allowed employers to deny pregnant workers’ requests for simple, temporary accommodations such as water breaks or relief from lifting heavy objects.
In some cases, an employer might use a worker’s accommodation as an excuse to fire them, arguing that they can no longer adequately perform their job. A more surreptitious strategy, though, is to keep a worker on the payroll while continuously rejecting their accommodation requests, effectively forcing them to quit.
McClain, who quit her job at First Watch last month, has become intimately familiar with the latter approach.
First Watch did not respond to the INDY’s request for comment.
In the weeks after McClain disclosed her pregnancy to her manager, she says her schedule was cut from five days to four, and then to three. There were also a number of instances where she was told to go home right after clocking in for a shift.
“They would say they had enough people on the floor,” McClain says. “Even on weekends, when we would be packed with customers.”
Her shifts typically started around 7:30 a.m. and lasted six or seven hours. Serving at all is physically taxing—she had to be on her feet the whole time, table hopping and running hot platters of food—and brunch is widely viewed as the worst shift: customers are crabbier, dishes are more modifiable and thus more prone to error, and ticket printers run rapid-fire.
But McClain was happy to throw herself into the fray. For pregnancy accommodations, all she needed was a short mid-shift break to sit down and drink water, which would relieve her nausea. But her break requests were denied, she says.
“It felt like they wanted to fire me, but they couldn’t,” McClain says. “They were trying to push me out.”
Her fall happened in early June. Management told her to go to Urgent Care, but when she arrived, the facility didn’t have an ultrasound machine on hand, she says. She ended up driving to Duke Regional Hospital and spent ten hours in the emergency room worrying about the fall’s impact on her pregnancy.
McClain returned to work the following weekend for her shift and was told by her manager that the restaurant was sufficiently staffed and she should go home. By that point, her schedule had dwindled to two days a week. She already had two kids at home—a 10-year-old and a 14-year-old—and needed to save up for the new baby. First Watch was paying her $2.15 an hour, so two days, or roughly 13 hours, of work netted her about $7.60—total—plus tips.
Between the lack of accommodations, the lack of hours, and radio silence from a representative that First Watch told her would reach out about workers’ compensation, she felt she had no option but to quit and find a different job a few weeks later, she says.
McClain’s experience was distressing. But hopefully it’s about to become a lot rarer.
On June 27, just weeks after McClain left First Watch, a new federal law—the Pregnant Workers Fairness Act (PWFA), which passed in December—went into effect. The PWFA requires most employers to afford a wide breadth of pregnancy accommodations to workers, including accommodations that one might need postpartum.
According to Gedmark, the PWFA closes a major loophole in the decades-old PDA. Under the PDA, workers were only legally entitled to a pregnancy accommodation if they could prove that another employee had received the same accommodation in the past, which placed an undue onus on workers and also created a pretty glaring Catch-22. (Scores of states implemented their own pregnancy discrimination and accommodation laws in previous years to address this loophole; North Carolina is one of four states with no statewide protections against pregnancy discrimination and its accommodation law only applies to state employees.)
The PWFA shifts the burden to employers. If a pregnant worker requests an accommodation, employers now must “engage in an interactive process” to meet their needs, Gedmark says. To reject an accommodation request, an employer would need to prove that said accommodation poses a significant threat to the business’s finances or operations. Since pregnancy accommodations are temporary, this would be quite hard to substantiate.
The PWFA also mandates that employers give workers the option of taking unpaid time off to recover from childbirth. This might not sound like a big deal (paid parental leave, of course, would be ideal) but in a high-turnover service industry, it’s a game changer for employees.
Before the PWFA was enacted, some workers could take unpaid time off through the Family and Medical Leave Act, which guaranteed that their jobs would be protected during the postpartum recovery period. To qualify for the Family and Medical Leave Act, though, a worker was required to have spent a year or more with the same employer, which boxed out a large sect of low-wage workers.
Now, people like McClain—who just started working a new job at Old Navy—can know that their jobs will be waiting for them after the recovery period.
While McClain wasn’t able to reap the benefits of the PWFA at First Watch, her requests for accommodations have gone over well at her new job, she says. She’s become well-versed in the new legislation since joining the Union of Southern Service Workers (USSW), a cohort that evolved from the Southern branch of the national workers’ rights movement Fight For $15, this month.
Group members have connected McClain with an attorney in case she decides to follow up on a workers’ compensation claim, and on a muggy mid-July day, they also join her to stage a demonstration in front of First Watch.
“We’re out here to let all pregnant women know—to let all people know—that you have rights,” says Ieisha Frances, a USSW member, after delivering a summary of the new PWFA protections. “No more of this discrimination and acting like bringing a life into this world is some type of crime. ‘Cause someone brought you into this world. So how dare you.”
McClain is next to the mic. A few seconds after she starts recounting her First Watch experience, she pauses and says she’s nervous. A white scar is still visible on her knee from the fall.
“We got your back,” the crowd shouts in unison.
McClain picks up where she left off. USSW members punctuate each stated instance of mistreatment with a chorus of “that ain’t right”s, and her confidence seems to grow over the course of her speech.
When she’s done, an organizer hands her a printed copy of the PWFA and a roll of tape.
“Watch this!” someone shouts, and McClain tapes the PWFA to the door of the restaurant, raising her fist.
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