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The Curt Flood Effect

Curt Flood never broke any major-league batting records, but the standout St. Louis center fielder nonetheless ranks as one of the pivotal figures in baseball history. By refusing Cardinals management's attempt to trade him against his will--a protest that included bringing a lawsuit against the baseball commissioner and sitting out the entire 1970 season--he paved the way for the demise of the reserve clause and the rise of free agency as the norm in professional sports. In part because of his principled stand, today's run-of-the-mill rookie gets a contract unimagined in the days when even star sluggers often needed off-season jobs to make ends meet. Flood returned briefly to big-league play in 1971, but he ended up with zero financial benefit and a truncated career.

Risking your career to stand up for your rights is not a strategy that appeals to many people, and it's especially perilous for those like postdocs whose future prospects depend not on objective criteria--say, Flood's six seasons batting over .300--but on the subjective recommendations of supervisors. Not infrequently, female scientists face such a Curt Flood-style quandary when trying to establish careers during their prime reproductive years. Take the researcher told mere weeks before she was due to give birth that no funding would await her when she was ready to resume work, the scientist who returned to the lab to find that her job had vanished, or the one who came back to find herself shunted to much-less-desirable duties.

"We hear about this all the time," says Joan Williams, director of the Center for WorkLife Law (WLL) at the University of California's Hastings College of the Law in San Francisco. "We hear persistent reports of postdocs and other folks working on grants who are either forbidden to take maternity leave or told that if they do, they'll be fired."

One issue, several laws

If a woman's employer has more than 15 workers, such treatment "is illegal," Williams continued. "It potentially violates two different statutes," the Pregnancy Discrimination Act (PDA), which is an amendment to Title VII of the 1964 Civil Rights Act, and the Family and Medical Leave Act (FMLA). PDA "is triggered if [employers] either deny maternity leave or place conditions on maternity leave not placed on people taking other kinds of short-term disability leave," for example that granted to recover from surgery or an injury, she says. FMLA requires any workplace with 50 or more workers to provide eligible employees "family and medical leave" of up to 12 weeks without pay per year "and not interfere with an employee's ability to take ... leave or discriminate" or retaliate "against an employee for taking leave." To qualify, the employee must have been with the employer a year and have put in 1250 hours over the past 12 months.

Some postdocs, however, have PIs like the one described in a posting on the Science Careers Forum, who reportedly told a postdoc, after denying her maternity leave, "I'm the CEO; I can do what I want." But that would-be captain of industry had it wrong. If the postdoc works on a grant administered by a university or other institution, the institution, not the PI, is the employer. Although few labs have more than 15--let alone 50--workers, every university employs that many people and therefore comes under both PDA and FMLA.

What rights a postdoc is entitled to under those statutes therefore comes down to whether she (or, in the case of a man wishing to take family leave, he) is an employee. And that, says employment lawyer Cynthia Calvert, who is deputy director of WLL, can be a complex question involving the exact terms of any agreement the postdoc has signed as well as details of the university's behavior and of relevant state law. Although postdocs who bring their own grants or fellowships ordinarily do not qualify as employees, the National Institutes of Health grants holders of Ruth L. Kirschstein National Research Service Awards up to 30 days of paid parental leave as well as work interruptions and time extensions in case of an "accident, illness, or other personal situation which prevent(s) a fellow from effectively pursuing research training for a significant period of time." Postdocs working on a PI's grant and paid by a university very often qualify as employees. In disputed cases, courts and the IRS generally use a "multipronged test" to determine employee status, considering "things like where do you do your work, to what degree is there control over your work, how are you paid, and who provides the materials for what you're doing," Calvert says.

Working at the employer's premises under direct supervision and using materials the employer supplies are all signs of employee status. Receiving a university paycheck from which federal taxes have been deducted "is a big indicator" that one is an employee, Calvert says. So is receiving fringe benefits such as health insurance. But individuals who do not qualify as employees may still be able to sue under Title IX of the Education Amendments of 1972, which says that not only can "institutions receiving federal funds not discriminate on the basis of pregnancy, but they can't discriminate on the basis of parental status" either, she adds.

Eligible employees who believe they have suffered discrimination because of pregnancy can seek help free of charge from the Equal Employment Opportunity Commission (EEOC), which enforces Title VII. Those encountering difficulty getting family leave can consult the Department of Labor, which administers and enforces FMLA. The Department of Education enforces Title IX. WLL also provides information free of charge.

Risky business

But knowing you're right isn't the same as getting to enjoy your rights. "I've spent many hours with tearful plaintiffs trying to decide whether to file a case or not [at the risk of] burning bridges and really being blackballed in their community," Calvert says. And experience shows that the risks of taking legal action can be considerable and the outcome uncertain.

Pregnancy discrimination is considered a form of sex discrimination, and Cornell University sociologist Elizabeth Hirsh has tracked the outcome of sex-discrimination (although not necessarily pregnancy-related) complaints filed with the EEOC. "About 20% end up getting some sort of benefit, whether it's reinstatement to the job, or a monetary benefit, or whatever promotion they had sought," she tells Science Careers. A study by Mary Still, a postdoc at Cornell's Institute for the Social Sciences, found that employees tend to do better than that in suits over discrimination on account of "family caregiving responsibilities," winning half the cases they bring. Results varied by region, Still found, with employees most likely to prevail on the East Coast and least likely in the South. Some victorious plaintiffs in both Hirsh's and Still's studies won large financial settlements

But even when a discrimination claim ultimately does not benefit the complainant, Hirsh found, it still can contribute to overall improvement. "As complaints build up in a specific industry, and there are more settlements and more money paid, employers begin to change their policies. ... Although individual cases don't often result in benefits for the person who actually brought the claim, as they accumulate in an industry, eventually firms in that industry catch hold of this and improve their practices." Claims concerning pregnancy and pregnancy-leave discrimination have been rising in recent years, perhaps foretelling better outcomes down the road.

Playing it safe

No one, of course, advises legal action as a first step. A far better approach, Still suggests, "is to know your rights"--easily determined by consulting the human resources section of the university's Web site or its human relations office--and then to "approach your PI or supervisor in a professional manner," preferably armed with suggestions for mitigating the effect of your absence. Universities generally have formal pregnancy policies as well as knowledgeable staff members who can become allies. "If there's an administrative manager for the department or grant," she continues, "that person is likely to be informed" about personnel policies, often to a much greater extent than the PI. University human resources departments or ombudsmen can also often help arrange an acceptable solution. Postdoctoral offices or associations may have information, too.

Many lab chiefs "do not have any idea what the law mandates," Still notes. "They often have no training in dealing with these sorts of employment issues," Hirsh agrees. Because the laws are multiple as well as detailed and specific, supervisors need to be thoroughly briefed.

The responsibility for educating PIs about their legal obligations as bosses of course rests with the university's leadership and administration, not with powerless and dependent postdocs. Institutions that fail to do so open themselves up to embarrassing and potentially expensive legal problems if a frustrated postdoc were to follow Curt Flood's example and take a grievance to court or pursue it through a government agency.

Deciding to take legal action carries "career implications" for the postdoc, Still notes, and attempting, in a calm, respectful, and professional manner, to work through the university administration to help the PI understand his or her responsibility generally carries fewer perils. For a conscientious supervisor honestly unaware of the law, it can do the trick. But in cases of real intransigence, Calvert points out, the strategy of acquiescing in discrimination to avoid alienating a stubborn PI has a fundamental flaw: "This person is treating you like dirt already. What makes you think that he or she will be helpful to you in your future?"

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