In 2020, the House of Representatives overwhelmingly passed the Pregnant Workers Fairness Act by a bipartisan vote. The bill died in the Senate. Now, the bill has been proposed again. Here is why the Pregnant Workers Fairness Act is necessary and long overdue.
The Pregnancy Discrimination Act
In 1976, the Supreme Court found that pregnancy discrimination was not a form of gender discrimination under the federal civil rights laws. Congress quickly stepped in to right this wrong by passing the Pregnancy Discrimination Act in 1978. The Pregnancy Discrimination Act remains the primary source of protection for pregnant workers who need on-the-job accommodations at the federal level. (At least 20 states, including California, provide more generous legal protections; but other states do not.)
So what does it do? The Pregnancy Discrimination Act provides that employers with more than 15 employees cannot discriminate "on the basis of pregnancy, childbirth, or related medical conditions." This means that an employer must treat a pregnant worker the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay. An employer may have to provide a reasonable accommodation for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).
The PDA means that if your employer provides light duty to men who hurt themselves on the job, they also must provide you with light duty due to your pregnancy. But if your employer does not provide light duty to non-pregnant disabled workers, they do not need to create a light duty program to accommodate you. The PDA creates a race to the bottom: the fewer accommodations and protections employers provide for all workers, the fewer accommodations they are required to provide to pregnant workers.
The courts' track record in interpreting the PDA is not great, to say the least. Courts have held that giving pregnant women more protection or accommodations than men is discriminatory against men. Companies as large as Walmart have been allowed to claim they have no light duty positions available to pregnant workers and workers fired during their pregnancies have been left without a remedy. As A Better Balance put it in their 2019 report advocating for the Pregnant Workers Fairness Act:
[P]regnant women are facing three main problems in these cases: 1) they are still being forced to show that other employees are accommodated to merit accommodations under the PDA; 2) even if they are able to find “comparators,” women are still forced to discredit the employer’s justification for failing to accommodate them, and one way of doing this is by showing the employer’s policy imposed a “significant burden” on pregnant workers, but courts are struggling to correctly apply this standard; and 3) many pregnant women need accommodations immediately and cannot afford—both in terms of their health and finances—to litigate a case for multiple years. These problems can be succinctly summed up as the “comparator problem,” the “significant burden” problem, and the “costly and time-consuming litigation” problem.
The Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act is an effort to solve these glaring deficiencies for all pregnant workers in the United States. The proposed law would clarify that employers are required to make reasonable accommodations for pregnancy-related work restrictions. Employers would be required to engage in an "interactive process" with employees to determine whether an accommodation is reasonable. Workers would be entitled to protection from retaliation, coercion, and intimidation for requesting or using an accommodation.
In California, pregnant workers at employers with more than five employees already have these protections. While pregnancy discrimination remains rampant, we are lucky to have the tools necessary to stop it. We rely on these tools every day in our practice. If we practiced in a state without a Pregnant Workers Fairness Act or a similar law, we would not be able to help the majority of our clients. We know firsthand how devastating this would be, and how much employers would get away with.
No matter where you live, you can support the PWFA by contacting your lawmakers here.
Share Your Story with Leading Pregnancy Discrimination Attorneys
We are leading pregnancy discrimination attorneys and fight for the rights of pregnant women in the workplace. If you have experienced pregnancy discrimination or discrimination based on a pregnancy-related medical condition, contact us today through our website or give us a call at (213) 214-3757 to schedule a free consultation.