On Monday, a conservative news outlet published what some took to be damning evidence that Sen. Elizabeth Warren (D-Mass.) is a liar: Documents showing that Warren resigned from her public school teaching job in 1971, despite her story on the presidential campaign trail that she was fired or pushed out.
“By the end of the first year I was visibly pregnant, and the principal did what principals did in those days: wished me luck, showed me the door, and hired someone else for the job,” she said in June.
What exactly happened became the subject of intense interest after the documents went up.
Warren stood by her account, and teachers who worked at the school backed her up on what conditions were like for pregnant women. Additionally, all the historical evidence of the lack of protections for women at the time make clear that not only is there no evidence Warren was lying, but also that her experience was shared by many other women who were working in teaching or other professions.
CBS News pressed Warren on whether she was “fired” or “forced to resign,” trying to get the terminology right.
But the exact wording is almost beside the point. Discrimination ― whether it’s against pregnant women, members of the LGBTQ community, people with disabilities or so many others ― doesn’t always come with a clear-cut firing that lists the exact reason. Warren may have “resigned,” but it was clear that that was her only course of action.
Employers now, just as they could then, can make workplaces so inhospitable for an employee that they essentially have no choice but to resign on their own or start looking for another job. It’s still discrimination; it’s known as “constructive discharge” and can be considered the same as termination.
“The employer doesn’t want to actually fire somebody and leave their fingerprints on the adverse actions, so they make the circumstances of the job so unpleasant that [the employee is] left with no option other than to quit,” said Lisa Banks, an attorney with Katz, Marshall & Banks who specializes in employment law.
“We rarely have a smoking gun anymore,” she added. “Employers tend to be savvy enough not to state outright the discriminatory motives for their termination.”
Emily Peck, a senior reporter at HuffPost, said that in the 1970s, her mother used a wheelchair while working as a social worker at a college. Officials decided to move her office up a flight of stairs.
There were, however, no elevators in the building. She also “resigned” her position.
HuffPost solicited stories of workplace discrimination on Twitter and heard from scores of people who were either outright fired or chose to resign after their workplace became unbearable. Many requested anonymity or that their first names be used so that they could speak freely.
Maggie said that she received praise while working at a medical supply company ― until she told her supervisor that she was pregnant. Almost immediately, she had a performance review and received dismal ratings, despite the top marks she had been getting previously. Maggie quickly began looking for a new job.
“It wasn’t hard to see where the boss/owner was going,” she said. “It was still super early in my pregnancy so plenty of time to come up with a reason to let me go. I couldn’t take the risk.”
“Employers can make your life so terrible that people feel forced to resign because they’re being to set up to fail. Anybody who you want to set up ― you can create that paper trail, and people can tell that’s happening to them, so often they’ll resign rather than have a termination on their record,” said Jenny Yang, a senior fellow at the Urban Institute who served on the Equal Employment Opportunity Commission from 2013 to 2018.
It was better to just make a graceful exit. That really felt like the only option that I really felt like I had. Debra Pickett, former Chicago Sun-Times columnist
Another woman working for a restaurant group heard a new chef make racist remarks. She notified her bosses, and a few days later, she ― not the chef ― was fired. They claimed she was “no longer a good fit.”
Sacha said that when she became pregnant in 1999, she informed her boss at a tech company that she was pregnant.
“The VP warmly congratulated me and rolled right along into how my next project would be recruiting and training my replacement. I was so stunned, I’m not sure what happened next. Was I fired? Did I resign? I have no idea what HR records would reflect,” she said.
Yang said that while she was at the EEOC, it would have about 3,500 pregnancy discrimination charges a year, and in two-thirds of those cases, women would allege that they were fired as a result of their pregnancy.
“So even today, it is very common that women experience termination when their employer learns of pregnancy. And sometimes, surprisingly, it’s fairly obvious. Other times it’s not,” she said. “Most employers know better than to say, ‘Because you’re pregnant, we’re firing you.’”
Debra Pickett’s case played out far more publicly than most. In 2006, she was a prominent columnist with the Chicago Sun-Times, planning her return from maternity leave. (It wasn’t even maternity leave, which she didn’t get back then ― it was disability leave, combined with some unpaid time off.)
She wrote about current affairs, mixed with pieces about culture and her personal life ― billed as what life was like for a single woman living in Chicago.
Even on leave, she continued to write her column. But during that time, she, not surprisingly, started writing about her new baby as well. Editors moved her column from the coveted spot on A2, in the news section, to the features/lifestyle section.
“She was a young, single Chicagoan,” said features editor Christine Ledbetter at the time. “That was the mantra for the column. She morphed into what she morphed into. If she chose to write about her boyfriend and her baby, those are Lifestyles topics.”
The final straw, for Pickett, was an assignment she was given for when she came back: to go out and breastfeed her baby in public. A photographer would come along, and they’d take note of the public reaction.
“It was laughable,” she told HuffPost.
“In lots of ways, defined and undefined, it was clear to me my position was shifting,” she added. “I wasn’t going to be asked to travel, even though I would have. Things were being taken off the table.”
Pickett resigned. She recognized that she wasn’t fired, demoted or given a pay cut.
“It was better to just make a graceful exit,” she said. “That really felt like the only option that I really felt like I had.”
This issue of discrimination is now before the Supreme Court as well. On Tuesday, the nine justices heard arguments over whether federal law forbids job discrimination on the basis of real or perceived sexual orientation and gender identity. The Civil Rights Act forbids firing someone for race, color, religion, sex or national origin. The question is whether “sex” encompasses sexual orientation and gender identity protections.
In 29 states, there are no sexual orientation or gender identity workplace protections. Congress has failed to pass legislation that would explicitly write protections for the lesbian, gay, bisexual, transgender and queer community into federal law.
One in 10 LGBTQ workers have left a job because the environment was not accepting, according to a report by the Human Rights Campaign. One in 5 searched for a new job, and another 1 in 5 have stayed home from work because their place of employment felt unwelcoming.
“Overall, it’s pretty damn common for LGBTQ people to face significant obstacles for being LGBTQ,” HRC spokeswoman Charlotte Clymer said.
One man told HuffPost that for three years, he was a prominent anchor on a local TV morning show. But as people at the station started learning he was gay, things quickly began to change. The breaking point came one evening, when a co-worker saw him at a gay bar. The next morning, his bosses informed him that he was off the morning show and demoted, with a pay cut, to a nighttime reporting position.
“You’re called in and you’re told, you’re off your show, and you say, ‘Why?’ They say, ‘We’re going to go in a different direction.’ But the ratings are good, so why? And they won’t say, but you know,” he said. “You know.”