Various federal, state, and local laws give certain workers who experience or are at risk of miscarriage the right to time off, to receive reasonable accommodations following a miscarriage, and to be free from discrimination by their employers because they have miscarried. This fact sheet will help you navigate your workplace rights if you have had or are at risk of having a miscarriage.
A high level federal court just issued an important decision for pregnant workers in a case in which A Better Balance and the Center for WorkLife Law, joined by 20 advocacy and civil rights groups, submitted an amicus (friend of the court) brief. The decision clarified that employers who accommodate workers with on-the-job injuries but deny accommodations to pregnant workers with similar restrictions must justify their actions in order to be in compliance with the law. In doing so, the court rejected the argument that these workers were not “similar in their ability or inability to work,” affirming a key aspect of the Supreme Court’s 2015 decision in Young v. United Parcel Service.
In 2015, just months after the Supreme Court’s decision in Young, Kimberlie Michelle Durham was forced out of her job as an EMT when her employer refused to accommodate a 50-pound lifting restriction that had been recommended by her doctor after she became pregnant – even though the company had a policy of offering light duty positions to non-pregnant employees with similar limitations. Durham brought suit under the Pregnancy Discrimination Act, but her case was tossed out by the district court, which had determined that Durham’s employer could lawfully deny her accommodations because workers whose lifting restrictions arose from on-the-job injuries were not sufficiently “similar” to Durham. The Eleventh Circuit rejected this distinction on appeal, holding that,
Neither a non-pregnant EMT who is limited to lifting 10 or 20 pounds nor a pregnant EMT who is restricted to lifting 50 pounds or less can lift the required 100 pounds to serve as an EMT. Since neither can meet the lifting requirement, they are the same in their “inability to work” as an EMT. And that satisfies the plaintiff’s prima facie requirement to establish that she was “similar [to other employees] in their ability or inability to work.”
This is a significant affirmation of pregnant workers’ rights under the federal Pregnancy Discrimination Act. But for Durham, this victory took years – arriving long after she needed the modest accommodations to continue safely working throughout her pregnancy. And Durham’s experience speaks to a larger problem in the federal courts, which have consistently misinterpreted and misapplied the Young decision to the detriment of pregnant workers. As is described in A Better Balance’s 2019 report Long Overdue, plaintiffs who brought claims under the Pregnancy Discrimination Act after they were denied accommodations lost their cases in court two-thirds of the time, and our analysis of these cases highlights the lack of clarity in the law.
So while Durham’s victory should be celebrated, it also underscores the need for a clear law to help other pregnant workers like her, who cannot afford a lengthy court battle to secure the accommodations they need. This is why A Better Balance is leading the campaign to pass the federal Pregnant Workers Fairness Act (PWFA), which would clarify that pregnant workers are entitled to modest workplace accommodations absent undue hardship on their employer. We call on Congress to pass the federal PWFA without delay, because pregnant workers cannot wait.