PREGNANT AND WORKING
By Alisha Haridasani Gupta and Alexandra Petri
“Pregnant workers literally need to jump through legal hoops to prove that they’re being treated worse than others.”
— Dina Bakst, co-director of A Better Balance
Congress is poised to pass a new bill that would provide women across the country who face pregnancy discrimination a clear channel for recourse. It took only eight years, six legislative sessions and thousands of lawsuits — including one that made it to the Supreme Court — to get to this point.
The new bill, known as the Pregnant Workers Fairness Act, or PWFA, was first introduced in 2012 and has been reintroduced in the House in almost every legislative session since. But it’s repeatedly failed because it lacked bipartisan support and a sense of urgency, advocates say.
This time, since the bill was introduced in February — in the midst of the pandemic that has pushed millions of women out of work, without protections or health insurance — it has received 225 sponsors, including 19 Republicans, injecting a high dose of optimism that the bill will be signed into law in the coming months.
The PWFA would clarify and strengthen the Pregnancy Discrimination Act which was passed more than 40 years ago as an amendment to the 1964 Civil Rights Act. That original law, for the most part, is ambiguous, experts say. Key terms are undefined and too often the burden falls on employees to prove discrimination. At its root, the law treats “accommodations” — slight and temporary changes to schedules or assignments for health reasons — for pregnant women as a fringe benefit, not a mandatory one.
The PWFA would address several of those loopholes. Among other things, it would require employers to enter into a negotiation with pregnant employees for any accommodations, creating a default expectation that businesses are on the hook to provide pregnant women with the help they need.
“If 88 percent of expectant moms are working in their last trimester, then it’s incumbent on us to recognize that making accommodations, like water breaks and bathroom breaks, is absolutely imperative,” said Representative Jackie Speier, Democrat of California and one of the original signers of the bill.
“It’s just a common-sense piece of legislation to help keep women in the workforce,” said Representative John Katko of New York, one of the Republican leaders behind the PWFA. “We have to err on the side of inclusiveness, not exclusiveness.”
‘It’s like a puzzle’
When the Pregnancy Discrimination Act passed in 1978, it made it illegal for employers to consider pregnancy in hiring, firing and promotion decisions.
But the law also noted that pregnant women or those affected by pregnancy- and childbirth-related conditions should be treated the same as, and receive the same benefits as, others who are “similar in their ability or inability to work.”
If that last part sounds vague, that’s because it is: It has been tripping up employers, employees and lawyers ever since it was passed, raising questions around what counts as “similar” and what kinds of benefits the employer should provide.
“That provision has been litigated through the roof,” said Dina Bakst, the co-director of A Better Balance, a national advocacy organization that provides free legal advice for pregnant women facing discrimination, and which helped Congress craft the PWFA. “Pregnant workers literally need to jump through legal hoops to prove that they’re being treated worse than others similar in their ability or inability to work.”
Recognizing a need, 30 states and several other local governments have enacted their own pregnancy accommodation laws, creating a patchwork of different laws. But this only intensified the confusion.
“There’s no clear standard,” said Alex Berke, an employment lawyer at the New York-based Berke-Weiss Law firm who specializes in pregnancy discrimination cases. “It’s like a puzzle.”
In practice, if a pregnant woman needs to switch to lifting lighter loads during her shift, she not only has to have that difficult conversation with her manager but — if her request is denied — she needs to find out if others who are “similar in their ability,” per the Pregnancy Discrimination Act, are being treated differently. At this point, she can get a lawyer involved and file a lawsuit that could take years to litigate, far outlasting the pregnancy itself.
Peggy Young, a former UPS driver, faced this exact scenario: She had requested lighter loads when she became pregnant in 2006 but was instead forced to take extended, unpaid leave. She sued UPS under the Pregnancy Discrimination Act in 2007. The case didn’t get resolved until the Supreme Court took it up in December 2014. The court ruled in Ms. Young’s favor, and she reached an undisclosed settlement with UPS in October 2015.
But for too many women, legal recourse is an unaffordable option so they continue working under conditions that put their pregnancies at risk. In a 2018 report, The Times reviewed thousands of legal documents and court records of pregnant women whose pregnancies resulted in miscarriages or premature labor, all because their requests for temporary modifications to their jobs were rejected.
And, despite the Supreme Court’s siding with Ms. Young, critical questions, like what constitutes “similar,” remain unanswered.
“I defy anyone to read that decision and tell me with certainty what an employer is obligated to do or what an employee’s rights are,” said Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce, a powerful business lobbying group.
As a result, pregnancy discrimination has remained commonplace. In more than 66 percent of the dozens of discrimination cases filed between 2015 and 2019, courts sided with employers, stating that they didn’t need to provide pregnant women with accommodations, whether those were in the form of additional bathroom breaks or a stool to sit on, according to an analysis by A Better Balance.
In a 2018 case in Tennessee, Cassandra Adduci, who had asked her employer, FedEx, for a lighter duty, created a spreadsheet of 261 other employees who were given temporary work assignments. The court still found that those instances were not similar enough to her situation and denied her motion, Ms. Bakst noted.
The Equal Employment Opportunity Commission received roughly 3,000 complaints from women per year from 2015 to 2019, largely equal to those it had received annually before the Supreme Court ruling. And that’s just cases that are reported.
“The statistics are part of the picture, but they don’t give a full picture,” said Charlotte Burrows, chair of the EEOC. “What we find across the board is that most workers, if they’ve experienced discrimination, don’t report it. Women in that situation are focused on ‘let me get another job.’”
In 2012, Representative Jerrold Nadler, Democrat of New York, joined forces with advocacy groups, including A Better Balance, and House colleagues, including Ms. Speier, to introduce the PWFA.
But the legislation languished in Congress, failing to gain traction among Republicans.
In 2019, after Democrats took back the House, the bill finally received its first congressional hearing. In another breakthrough, the U.S. Chamber of Commerce, an often right-leaning group, threw its weight behind the PWFA, because the bill’s “end goal was something we could support,” explained Marc Freedman, vice president of employment policy at the organization. The lobbying group collaborated with the bill’s supporters to revise the legislation in an effort to win bipartisan support.
“The folks that we worked with on this bill are not folks that we are usually in agreement with,” said Mr. Freedman, but “giving pregnant women the ability to stay in a workplace is a good thing, and we wanted to find a way to get to that endpoint.”
The two sides found middle ground: creating a formalized negotiation process and clarifying definitions for particular terms, including “known limitations” stemming from pregnancy, childbirth and related medical conditions, that would remove ambiguity for both employees and employers.
But the bill didn’t advance to the Senate — in part because of a contentious election season — and had to be reintroduced in the current legislative session, where it stands today.
It is expected to pass the House in the coming weeks, again with overwhelming bipartisan support.
“We’re really working hard to have bipartisan support in the Senate, and hopefully, we’ll see movement this year,” Ms. Bakst said.