Transfers and Pay Cuts: Pregnant Officers Accuse Border Agency of Discrimination

WASHINGTON — When Roberta Gabaldon was ready to share news of her pregnancy with her colleagues at Customs and Border Protection in 2015, she brought in pink and blue doughnuts with a sign that read: “Pink and blue. Pink and blue. Somebody’s pregnant, guess who?”

But her palpable excitement, particularly after a miscarriage months earlier, quickly dissipated.

“My boss came into my office and he’s like: ‘You have to leave. You have to get a note about your pregnancy, and you have to go on light duty,’” Gabaldon, an agriculture specialist in the El Paso, Texas office, recalled, describing how she was told she needed to be reassigned to a post with fewer responsibilities regardless of whether she or her doctor believed it was necessary.

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Her experience reflects that of hundreds of female employees at the agency who have filed suit against Customs and Border Protection, saying that since at least 2016, they were denied equal treatment once they disclosed they were expecting. No matter the physical demands of their jobs, many were transferred to another post, typically centered on administrative or secretarial work and usually unrelated to what skills they had developed in their existing roles. The policy, they say, hurt their opportunities for advancement, and others add that they weathered pay cuts because light duty meant no more overtime.

But under a $45 million settlement reached Monday, Customs and Border Protection agreed to adjust a practice that some employees say has instilled a culture of shame and perpetuated a fear of retaliation as women try to hide their pregnancies at work for as long as possible.

The agreement, which is not final until the end of September, requires CBP to draft a new policy for pregnant women, and lawyers representing the women will monitor the agency’s compliance for three years. CBP will also be required to train all managers and supervisors about the rights of pregnant employees.

CBP declined to answer questions about its policy toward pregnant women as described in the lawsuit and in interviews, citing its practice of not commenting on pending litigation. The terms of the settlement agreement state that the agency does not admit wrongdoing.

In a statement, a spokesperson said the agency already trains employees on policies and periodically reviews policies. “We are better because of these strong, capable, and resilient women that are serving at every level, in and out of uniform,” the spokesperson, Erin Waters, said.

The class-action employment lawsuit, led by Gabaldon and joined by about 1,000 women who have worked at the agency’s Office of Field Operations, says the practice is a clear violation of laws including the 1978 Pregnancy Discrimination Act and the recent Pregnant Workers Fairness Act.

The Office of Field Operations is the agency’s largest division, numbering 33,600 employees responsible for facilitating legal immigration, trade and travel at ports of entry across the country. They also search for contraband like drugs and inspect agriculture to prevent invasive species and toxic materials from coming into the country.

The policy itself underscores a broader male-dominated culture at the largest law enforcement agency in the country, where, according to recent statistics provided by CBP, women make up about 24% of the employees. By comparison, women make up about 30% of the FBI’s workforce.

Men have long outnumbered women at CBP, which like many law enforcement agencies has pledged to increase the number of female employees, with a goal of 30% women in its recruit classes by 2030. As of mid-July, about 20% of new law enforcement hires are women, an agency spokesperson said.

A lawyer who represented Gabaldon, Joseph M. Sellers, a partner with the Washington-based firm Cohen Milstein, said women shared remarkably similar accounts of how the agency displayed a persistent skepticism toward the ability of pregnant officers to do their jobs.

“We want pregnant employees to be in our workforce in this country,” Sellers said. “We ought to create the work environment and expectations to ensure that will happen.”

Sellers, along with the law firm Gilbert Employment Law, interviewed about half of the plaintiffs. Some 90% of the women who joined the lawsuit still work at CBP.

One officer, who asked to be identified as Claudia for fear of retaliation, said in an interview that she was subjected to the light-duty policy during both of her pregnancies. The first time she was shocked, pressing her superior: “You’re telling me I’m no longer going to be considered an officer just because I’m pregnant?”

Claudia, who worked at a port of entry in Arizona, said she felt as if she was being punished. “I know I have more to offer,” she said. “I know that I’m worth more.”

Dina Bakst, the co-founder and co-president of a rights group for pregnant workers, A Better Balance, said the light-duty policy at CBP limited women’s options without their consent.

“Paternalistic assumptions and stereotypes about pregnant women’s abilities have been used for decades to deny them equal opportunities at work or keep them out of the workplace completely,” Bakst said.

The agency has acknowledged that women have raised concerns about tough working conditions. As commissioner of Customs and Border Protection, Chris Magnus held multiple meetings with women at the agency from 2021 to 2022, which he described in an Oct. 16, 2022, email obtained by The New York Times as “very troubling.”

In that email, addressed to the secretary of homeland security, Alejandro Mayorkas, and other senior leaders, Magnus cited frustrations that attendees voiced with hiring and retention, adequate child care and making sure equipment met the specific needs of female officers.

“Culture remains a significant part of the equation that there is no one simple way to address,” Magnus wrote just a month before he was forced to resign.

Kristie Canegallo, the acting deputy secretary of the department, recently told an audience at a conference on women in law enforcement that the department had a task force focused on the issue. Asked to supply more details, a department spokesperson was unable to do so.

Even as Gabaldon expressed relief to have the case settled, she said she feared retaliation. (The administrative judge presiding over the case warned the agency last month against intimidating behavior.)

Gabaldon still works in El Paso, where she remains an agriculture specialist in the training division. After her experience being pregnant at CBP, she added, she opted not to have any more children.

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