Pregnant Workers Fairness Act
Floor Speech
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Ms. LEGER FERNANDEZ. Mr. Speaker, Sunday, we celebrated Mother's Day. Today, we act to protect mothers-to-be.
Every pregnant worker deserves the opportunity to support their family without risking the health of their pregnancy. Yet, pregnant workers, especially those in low-wage and physically demanding jobs, are often forced to choose between their health and a paycheck.
The Pregnant Workers Fairness Act will correct these flaws in our system to ensure that pregnant women are treated fairly in the workplace.
Women carried the brunt of losses during the pandemic, losing a net 5.4 million jobs. We need to make it easier for them to get back to work, and that must include pregnant women.
I am proud that my home State of New Mexico passed legislation to protect pregnant workers, with bipartisan support, last year. It is time for Congress to do the same.
Mr. Speaker, I include in the Record a letter from the ACLU in support of the Pregnant Workers Fairness Act. May 11, 2021. Re Vote YES for the Pregnant Workers Fairness Act (H.R. 1065).
Dear Members of Congress: On behalf of the American Civil Liberties Union, and our more than 1.8 million members, supporters, and activists, we write to express our support for H.R. 1065, the Pregnant Workers Fairness Act. This critical legislation would combat an all-too-common form of pregnancy discrimination while also providing employers much- needed clarity on their obligations under the law. We urge all members of the House of Representatives to vote in favor of this measured, bipartisan, and longoverdue legislation.
The ACLU has long fought to advance women's equality and opportunity by challenging laws and policies that discriminate against women in the workplace and by dismantling the stereotypes that constrain women's full engagement and participation at work. Although the Pregnancy Discrimination Act has played a critical role over the past 40 years in securing women's place in the workforce, too many women continue to be marginalized at work because of their decision to become pregnant and have children. This kind of discriminatory treatment has become most obvious when pregnant workers--predominantly women in physically demanding or male-dominated jobs, low-wage workers, and women of color--request temporary accommodations to address a medical need and instead are terminated or placed on unpaid leave, causing devastating economic harm. The Pregnant Workers Fairness Act would respond to this problem by requiring employers with fifteen or more employees to provide reasonable and temporary accommodations to pregnant workers if doing so would not impose an undue hardship on the business.
Pregnancy Discrimination, the PDA, and Young v. UPS, Inc.
Pregnancy and childbirth are often locus points for discrimination against women in the workforce. Policies excluding or forcing the discharge of pregnant women from the workplace were common in the 1970s and reflected the stereotype that a woman's primary or sole duties were to be a homemaker and raise children. The adoption of the Pregnancy Discrimination Act (PDA) in 1978, an amendment to Title VII of the Civil Rights Act of 1964, established that discrimination because of ``pregnancy, childbirth, and related medical conditions'' was a form of discrimination ``because of sex.'' It was intended to dismantle the stereotype, and the policies based on it, that viewed pregnant women's labor force participation as contingent, temporary, and dispensable without regard to their individual capacity to do the job in question.
The PDA also required employers to treat pregnant workers the same as other temporarily disabled workers because Congress recognized that working women contributed to their families' economic stability and should not have to choose between a career and continuing a pregnancy. Despite the PDA, pregnancy discrimination persists, and for many years courts routinely ruled against workers who brought pregnancy accommodation cases where they alleged discrimination when an employer provided a job modification to an employee temporarily unable to work but failed to do the same for a pregnant worker.
In Young v. United Parcel Service, Inc., the Supreme Court granted certiorari to resolve a split in the Circuits and for the first time addressed the PDA's application in the context of an employee who needed an accommodation due to pregnancy. The Court concluded that the statute's mandate applied with equal force in these circumstances and articulated a modified analysis for failure-to-accommodate cases. The Court also offered a new pretext analysis that plaintiffs may rely on when litigating claims under the PDA's second clause. Since Young, the reflexive approval of employer policies favoring workers with occupational injuries has largely disappeared. However, the bright-line deference to employer policies, and the overbroad reading of such policies as ``pregnancy- blind,'' has been replaced, in many instances, with an unduly demanding standard for plaintiffs in making a showing of differential treatment--even at the initial pleading stage, prior to having the benefit of discovery. This trend undermines Young's intent of demanding that employers justify failures to accommodate pregnancy. Instead, they impose unwarranted--and often insurmountable--burdens of proof on pregnant workers that increasingly confer ``least favored nation'' status on the protected trait of pregnancy. The stories of clients the ACLU has represented--both as direct counsel and as lead amicus--illustrate the harm:
Lochren v. Suffolk County: Sandra Lochren and five other police officers sued the Suffolk County Police Department (SCPD) for refusing to temporarily reassign pregnant officers to deskwork and other non-patrol jobs, even though it did so for officers injured on the job. But for those officers who opted to keep working patrol, SCPD also failed to provide bulletproof vests or gun belts that would fit pregnant officers. Their only safe option was to go on unpaid leave long before their due dates.
Cole v. SavaSeniorCare: When Jaimie Cole, a certified nursing assistant, was in her third trimester, she developed a high risk of preeclampsia, a condition that can lead to preterm labor or even death. Her doctor advised her not to do any heavy lifting. Cole's job required her to regularly help patients in and out of bed and assist with bathing, so she asked for a temporary light duty assignment. Instead, her employer sent her home without pay for the rest of her pregnancy.
Myers v. Hope Healthcare Center: Asia Myers, a certified nursing assistant, experienced complications early in her pregnancy and was told by her doctor that she could continue to work, but should not do any lifting on the job. Although her employer had a history of providing light duty to workers with temporary lifting restrictions, Myers was told not to return to work until her restrictions were lifted. She was out of work for over a month with no income or health insurance coverage.
Hicks v. City of Tuscaloosa: Stephanie Hicks, a narcotics investigator with the Tuscaloosa Police Department in Alabama, wanted to breastfeed her new baby, but her bulletproof vest was restrictive, painful, and prone to causing infection in her breasts. She asked for a desk job but her employer refused, even though it routinely granted desk jobs to officers unable to fulfill all of their patrol duties. Instead, it offered her an ill-fitting vest that put her at risk.
Legg v. Ulster County: Corrections Officer Ann Marie Legg was denied light duty during her pregnancy, even though Ulster County gave such assignments to guards injured on the job. In her third trimester, Legg had to intervene in a fight, prompting her to go on leave rather than face future risks.
Allen v. AT&T Mobility: Cynthia Allen lost her job because she accumulated too many ``points'' under AT&T Mobility's punitive attendance policy due to pregnancy-related symptoms such as nausea. The policy makes accommodation for late arrivals, early departures, and absences due to thirteen enumerated reasons, some medical and some not, but none due to pregnancy and pregnancy-related symptoms.
Durham v. Rural/ Metro Corp: Michelle Durham was an EMT in Alabama whose job often required her to lift patients on stretchers into an ambulance. When she became pregnant, her health care provider imposed a restriction on heavy lifting. Durham asked Rural/Metro for a temporary modified duty assignment during her pregnancy, but was rejected, despite the company's policy of giving such assignments to others. She was told her only option was to take unpaid leave.
Why Congress Should Pass the Pregnant Workers Fairness Act
It is indisputable that Young was an important step forward to combat pregnancy discrimination. Yet, too many pregnant workers continue to face insurmountable obstacles in HR offices, where employers misunderstand their obligations under the PDA, and in courtrooms across the country, where judges use Young to hinder access to needed accommodations. Despite the clear mandates of the PDA, the current legal landscape leaves exposed and unprotected those pregnant workers who want to continue working while maintaining a healthy pregnancy.
Similarly, many pregnant workers have not found protection or recourse under the Americans with Disabilities Act of 1990 because absent complications, pregnancy is not considered a disability that substantially limits a major life activity. This legal reality means that many of the symptoms of a normal pregnancy that can disrupt a worker's ability to do her job--such as extreme fatigue, morning sickness, or limitations on her mobility--are not entitled to accommodation. Moreover, many pregnant workers seek accommodation precisely because they wish to avoid the conditions that might disable them or endanger their pregnancy. Yet because the ADA is so expansive with respect to other conditions that qualify as disabilities, the population of non-pregnant workers entitled to reasonable accommodation is exponentially larger than when the PDA was enacted more than 40 years ago. Accordingly, without such express entitlement to accommodation, pregnant workers face an untenable ``least favored nation'' status in the workplace.
The simple solution to this no-win situation is the Pregnant Workers Fairness Act. This legislation, modeled after the ADA and using a framework familiar to most employers, takes a thoughtful and measured approach to balancing the needs of working people and employers by requiring businesses with fifteen or more employees to provide workers with temporary, reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions if doing so would not place an undue hardship on business. It also prohibits employers from forcing a pregnant employee to take a leave of absence if a reasonable accommodation can be provided; prevents employers from denying job opportunities to an applicant or employee because of the individual's need for a reasonable accommodation; prevents an employer from forcing an applicant or employee to accept a specific accommodation; and prohibits retaliation against individuals who seek to use PWFA to protect their rights.
At a time when women constitute nearly 60 percent of the workforce and contribute significantly to their families' economic well-being, passage of PWFA is a dire necessity. When a pregnant worker is forced to quit, coerced into taking unpaid leave, or fired because her employer refuses to provide a temporary job modification, the economic impact can be severe; if she is the sole or primary breadwinner for her children, as nearly half of working women are, her entire family will be without an income when they most need it. She further may be denied unemployment benefits because she is considered to have left her job voluntarily. She may have few if any additional resources on which to rely. PWFA ensures that women would not face such devastating consequences. Instead, it treats pregnancy for what it is--a normal condition of employment.
PWFA promotes women's health. Accommodations make a difference in physically demanding jobs (requiring long hours, standing, lifting heavy objects, etc.) where the risk of preterm delivery and low birth weight are significant. The failure to provide accommodations can be linked to miscarriages and premature babies who suffer from a variety of ailments. This bill would be an important contribution in the fight to improve maternal health and mortality.
There is also a strong business case for PWFA. Providing pregnant employees with reasonable accommodations increases worker productivity, retention, and morale, and reduces health care costs associated with pregnancy complications. PWFA can also reduce litigation costs by providing greater clarity regarding an employer's legal obligations to pregnant workers. In fact, the U.S. Chamber of Commerce stated that PWFA would establish ``clear guidelines and a balanced process that works for employers and employees alike.'' Additionally, a group of leading private sector employers expressed their support for PWFA and noted ``women's labor force participation is critical to the strength of our companies, the growth of our economy and the financial security of most modern families.''
Finally, 30 states across the political and ideological spectrum have recognized the benefits of providing reasonable accommodations to pregnant workers. Congress should ensure that all pregnant workers, not just some, have the protections they need.
It is time for Congress to act and pass the Pregnant Workers Fairness Act. Sincerely, Ronald Newman,
National Political Director. Gillian Thomas,
Senior Staff Attorney. Vania Leveille,
Senior Legislative Counsel.
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