Poor, Pregnant and Fired
The Center for WorkLife Law at the University of California recently published a study called Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers. Stephanie Bornstein of Workplace Fairness wrote a post on the study. The study explains how women and male caregivers in low wage positions are routinely discriminated against. The study illuminates the fact that American anti-disrimination laws do not apply to poor workers as employers regularly fire women for getting pregnant, sick or who need time to care for sick family members. The study identifies six patterns that impact low wage workers who attempt to balance work and family responsibilities:
- Extreme hostility to pregnancy in low-wage workplaces
- A near total lack of flexibility in many low-wage jobs
- Low-wage workers treated disrespectfully, or even harassed at work
- Low-wage workers denied their legal rights around caregiving
- Hostility to men who play care giving roles
- Harsher treatment of mothers of color than white mothers
Low-wage workers are clearly being abused. They are subject to blatant employment discrimination while middle and upper income workers enjoy more protection. Why is this? The study by Center for WorkLife details the suffering and its causes - but there is a practical contributing cause that is overlooked in the study. It has to do with legal fees and access to legal services.
Employment lawyers who represent employees are one of the main protectors of employee rights. If an employee is subject to employment discrimination, they should be able to hire an employment lawyer to sue their employer. That is how the system is supposed to work. But, the economics of modern law firms make it very hard to help low-wage workers. Low wage workers cannot afford to pay a lawyer by the hour so the only option is a contingent fee arrangement. Under a contingent fee, the lawyer's fee is based on the value of the case and low-wage worker cases have low values because the value of the case is dependent on the employees income. Therefore there is little incentive for lawyers to take on low-wage cases, in fact it is easy to lose money on these cases. Since there is no economic incentive for lawyers to help low wage workers, low wage workers do not have ready access to legal services.
For example, if a person who earns $25,000 a year is fired for being pregnant, they might recover a years salary - $25,000. Most young mothers will find a new job within a year so the economic damages will probably be close to a years pay. With a recovery of $25,000 the law firm will earn a contingent fee equal to one-third of the $25,000 - or $8,333. It could easily cost more $8,333 to sue a company for pregnancy discrimination so law firms really cannot bring these cases in court. It is bad business - a money losing venture. The only way for a law firm to make money on such a case is to go all the way to trial and win and be awarded attorney's fees - but that is risky, time consuming and it takes years to get a case through the courts. But, if a woman earning $150,000 a year is fired for being pregnant, she might be awarded $150,000 or more for the same thing. The legal fee in that case will be one-third of $150,000 or $50,000. This case makes more economic sense because the fee will be $50,000 and the firm can earn a profit even if it settles. As you can see, the well paid mom will have access to legal services but the low wage mom will have a harder time. The legal system is broken because low wage workers are left out.
Since cases for low wage workers can only be handled on a contingent fee basis, most law firm's will avoid bringing cases for low wage workers because they will lose money. Low wage workers do not have ready access to quality legal services and employers know this and therefore they can violate their rights with relative impunity.
A major improvement would be if our employment laws were altered so that employers faced penalties that were not based on a workers income. This in itself would make it easier for lawyers to help low-wage workers and help to change the system. It is possible to modify the laws to require that the legal fees must be paid separately in cases involving low-wage workers, even settlements by the employers. This would provide an incentive for lawyers to help low-wage workers.
