More than forty years after the passage of the Pregnancy Discrimination Act (PDA), pregnant workers are still being forced to choose between their job and a healthy pregnancy. As evidenced by story after story included in this report, pregnant workers, especially women in low-wage and physically demanding jobs, routinely jeopardize their health, and often their economic security, when denied medically necessary reasonable accommodations. States are stepping in to remedy this problem by passing state pregnant workers fairness laws, but state-by-state change is not enough. We need a federal fix. We need the Pregnant Workers Fairness Act (PWFA).
1. Federal law is not cutting it for pregnant workers in need of accommodations to stay healthy and on the job.
In 2015, in Young v. UPS, the Supreme Court set a new legal standard for evaluating pregnancy accommodation cases under the PDA, a standard that employers and employees alike hoped would provide clarity in a muddled legal landscape. Unfortunately, for too many women it did not.
In an extensive review of post-Young pregnancy accommodation cases conducted for this report, A Better Balance found that in over two-thirds of cases, despite the new Young standard, courts held employers were permitted to deny pregnant workers accommodations under the PDA.
In Vassar, Michigan, Lauri Huffman just wanted to continue working as a shift leader at a Speedway convenience store. In Memphis, Tennessee, Cassandra Adduci needed the paycheck she brought home working at a FedEx warehouse. In Langhorne, Pennsylvania, Janasia Wadley wanted to keep her job as a teaching assistant at a daycare facility. In Kingston, New York, Anne Marie Legg took pride in her job as a corrections officer at the Ulster County Jail and wanted to continue working through her pregnancy. In Pell City, Alabama, Kimberlie Durham needed and wanted to continue working as an EMT during her pregnancy.
Unfortunately, a cruel thread connects these women: while they all requested modest accommodations at their doctor’s orders and presented doctor’s notes, their employers refused to accommodate them and courts or juries found they had no valid claims under the Pregnancy Discrimination Act.
Post-Young, pregnant 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.
2. A bipartisan movement to pass pregnant workers fairness laws is sweeping the nation.
State legislators on both sides of the aisle have realized the health, economic, and business benefits of providing reasonable accommodations to pregnant workers and have stepped in to fill the gaps in federal law. As of May 2019, twenty-five states and five cities require certain employers to provide some form of accommodations to pregnant employees. Every one of the post-2013 state-level accommodation laws passed with bipartisan, and in many cases, unanimous support. The new wave of laws track the familiar Americans with Disabilities Act (ADA) accommodation framework, and include “reasonable accommodation” and “undue hardship” language.
This report—through its deep analysis of state legislative histories— centers the voices of those state lawmakers, as well as business groups, who worked to pass pregnancy accommodation laws, recognizing the many health, economic, and government benefits such laws bring to workers, employers, and the state.
A Better Balance is proud to have developed model language, worked with local advocates on most of these state and local laws, and helped pregnant workers gain immediate relief under these new laws.
But even state legislators understand that the ultimate goal is a federal law. As former Republican Delaware State Senator Colin Bonini—who sponsored the Delaware pregnant workers fairness bill—said in a Congressional briefing on the federal PWFA:
“This policy is so obvious that it’s tremendously frustrating that it hasn’t happened. This is a public policy slam dunk. Do we want women to keep their jobs? Of course we do.”
3. There is a solution: the bipartisan federal Pregnant Workers Fairness Act.
The bipartisan federal Pregnant Workers Fairness Act, championed by Rep. Jerrold Nadler (D-NY), Rep. John Katko (R-NY), and Senator Bob Casey (D-PA), would require employers to provide reasonable accommodations to employees for pregnancy, childbirth, and related medical conditions, unless such accommodation would cause an undue hardship for the employer. Much like all the post-2013 state laws, the PWFA uses an existing reasonable accommodation framework, closely modeled after the Americans with Disabilities Act, that is familiar to employers. The federal PWFA would solidify the groundwork laid by the states and create a much-needed uniform federal standard.