40 Years & Beyond
October 31, 2018 marked the 40th anniversary of the federal Pregnancy Discrimination Act, a law we hoped would end pregnancy discrimination. As this timeline shows, the law has been transformative in many respects. But although employers can no longer deny women jobs because they are pregnant, unfortunately, pregnancy discrimination is shockingly still prevalent in American workplaces.
The Pregnancy Discrimination Act does not go far enough. That’s why A Better Balance has been working tirelessly to pass the Pregnant Workers Fairness Act in Congress and similar laws throughout the country. Today, 27 states and 5 cities have passed—often with bipartisan support—strong protections for pregnant workers. These laws are crystal clear: when a pregnant worker needs an accommodation, employers must work with them, instead of pushing them out, unless it would be an undue hardship. It is time for Congress to finish the job they started four decades ago and pass the Pregnant Workers Fairness Act. Read more about our case for the federal PWFA in our May 2019 report, “Long Overdue.”
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Title VII of the Civil Rights Act of 1964
A product of years-long organizing efforts by civil rights leaders, namely the Leadership Conference on Civil Rights, this section of the landmark law banned employment discrimination in workplaces with 15 or more employees based on certain protected classes, including race, color, religion, sex, and national origin. At the time of its passage, the term sex was not defined to include pregnancy.
Geduldig v. Aiello
The Supreme Court holds that the State of California’s disability insurance program denying benefits to women with pregnancy-related disabilities but providing benefits to employees for other types of disabilities did not amount to unconstitutional sex discrimination. Even though the excluded group was entirely comprised of women, the Court reasoned that the denial was not based on sex since non-pregnant persons can include women and men. The Court did not assess whether pregnancy discrimination was unlawful sex discrimination under Title VII. To this day, Geduldig is still the reigning precedent on this constitutional question.
General Electric Co. v. Gilbert
The Supreme Court relies on Geduldig in upholding a private employer’s sickness and accident benefit plan that excluded conditions related to pregnancy, finding the exclusion was not unlawful sex discrimination under Title VII. In the majority opinion, Justice Rehnquist said one of the reasons it was not unlawful is because women choose to become pregnant, even though Justice Brennan pointed out in his dissent that the plan covered other voluntary conditions, such as elective cosmetic surgery.
Pregnancy Discrimination Act
In response to outrage over the Gilbert decision, Congress passes the Pregnancy Discrimination Act, amending Title VII to define pregnancy discrimination as a form of “sex” discrimination. Under the new law—which then-lawyer Ruth Bader Ginsburg helped draft—it became illegal for employers with 15 or more employees to discriminate on the basis of pregnancy, childbirth, or related medical conditions and also stated that pregnant employees must be treated the same as other employees “not so affected but similar in their ability or inability to work.” In future years, courts struggled to interpret that comparator standard, especially when it came to providing reasonable accommodation.
California Federal Savings & Loan Association v. Guerra
The Supreme Court upholds a California state law that required employers to grant a job-protected leave of absences for employees with pregnancy-related disabilities, finding that states could pass laws imposing requirements that go beyond the federal Pregnancy Discrimination Act.
Title I of the Americans with Disabilities Act
Congress passes a landmark civil rights law prohibiting discrimination based on disability. Title I prohibits discrimination based on disability in workplaces with 15 or more employees and requires employers to provide reasonable accommodations to employees with disabilities. The EEOC develops regulations indicating that a disability must be an impairment that “severely or significantly restricts” a major life activity, and later courts narrow the ADA to exclude temporary impairments, limiting the type of pregnancy-related disabilities that may be covered by the law now.
Americans with Disabilities Amendments Act
Congress amends the Americans with Disabilities Act to overrule Supreme Court cases that limited the definition of disability under the ADA. Under the amended law, Congress made clear that the ADA was intended to define disability broadly, including temporary impairments. This update is especially crucial for those with pregnancy-related disabilities, which are often temporary in nature.
United Automobile Workers v. Johnson Controls, Inc.
The Supreme Court strikes down a private business’s gender-based policy excluding women capable of having children from jobs that involved lead exposure. The Court, “bolstered by the Pregnancy Discrimination Act,” finds such a policy is unlawful sex discrimination under Title VII as it affords fertile men the choice whether or not to assume risk, but not women, and paternalistic concern for women is not a bona fide occupational qualification. “Women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job,” the Court said.
Spotlight on the EEOC
In 1997, the EEOC receives nearly 4,000 pregnancy discrimination complaints, awarding $5.6 million in monetary benefits. The numbers only continue to grow. By 2010, the agencies receives over 6,000 complaints and awards $18 million in monetary benefits. Such figures help paint the picture not only of the persistent pregnancy discrimination pregnant workers continue to face on the job, but also of workers’ increased awareness of their rights in the workplace.
Troupe v. May Department Stores
Judge Posner of the 7th Circuit Court of Appeals authors an opinion holding that the firing of a pregnant Lord & Taylor employee the day before she was set to begin maternity leave—and whose supervisor told her it was because he didn’t believe she would return to work after having a baby—did not violate the Pregnancy Discrimination Act because she could not prove that a male employee about to take a long-term leave would not have also been fired. “Employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees,” Judge Posner wrote.
ADAAA Regulations Take Effect
The EEOC finalizes its regulations on the Americans with Disabilities Act Amendments Act and makes clear that an impairment “does not have to last for more than six months in order to be considered substantially limiting,” further solidifying that some temporary impairments related to pregnancy may qualify as a disability under the ADAAA.
A New Era of Advocacy
A Better Balance ushers in a new era of advocacy for pregnant workers after Dina Bakst, Co-Founder and Co-President, publishes an op-ed in the New York Times highlighting the gap in legal protections for pregnant workers, especially low-wage women in physically demanding jobs, who are often denied the modest workplace accommodations they need to stay healthy and employed.
Introduction of the Pregnant Workers Fairness Act
In response to ABB Co-President Dina Bakst’s New York Times op-ed, Congress introduces the federal Pregnant Workers Fairness Act, a bill that would require employers to provide reasonable accommodations to pregnant workers absent undue hardship. The bill has been championed since 2012 by Senator Bob Casey and Representative Jerrold Nadler, and bi-partisan support for the bill grows each year.
EEOC v. Houston Funding II
In EEOC v. Houston Funding II, the 5th Circuit Court of Appeals holds that firing workers because they require lactation accommodations is a violation of the Pregnancy Discrimination Act and that “lactation” is a medical condition related to pregnancy. The court overturned the lower court’s opinion which had held that “lactation is not pregnancy, childbirth, or a related medical condition,” and therefore “firing someone because of lactation or breast pumping is not sex discrimination.” Donnica Venters was fired from her job at Houston Funding after she asked the business whether she could pump breast milk at work and the EEOC brought suit on her behalf.
The NYC Pregnant Workers Fairness Act
Thanks in large part to ABB’s advocacy, New York City passes the Pregnant Workers Fairness Act, a law requiring employers with four or more employees to provide reasonable accommodations to employees for pregnancy, childbirth, or related medical conditions.
Fighting for Fairness in Florence, KY
ABB files a charge with the Equal Employment Opportunity Commission (EEOC) against the City of Florence, Kentucky on behalf of Officer Lyndi Trischler, who was pushed out of her job patrolling the streets at 5 months pregnant because of a city-wide policy that granted light duty for on-the-job injuries but not for pregnant workers. ABB later also takes on Officer Sam Riley as a client. She was similarly denied an accommodation and was forced to work the streets while enduring great pain caused by the weight of a heavy gun belt and other equipment.
Enforcing the NYC PWFA
ABB uses the New York City Pregnant Workers Fairness Act—a law we helped to draft and pass—to help women like Angelica Valencia, who was pushed off the job when pregnant because she needed to avoid overtime. The same month, we release our report The Pregnancy Penalty: How Motherhood Drives Inequality & Poverty in New York City, calling attention to how pregnancy discrimination and failure to provide accommodations to pregnant women can lead to lasting economic disadvantages.
Fighting for Policy Change at Walmart
Earlier in 2014, Walmart updates its Accommodation in Employment policy to explicitly state that temporary disabilities caused by pregnancy are eligible for the same reasonable accommodations as other disabilities. However, ABB immediately raises concerns about this new policy, and, in December 2014, along with our partners, files another charge of discrimination under the new policy on behalf of Candis Riggins—a Walmart associate who was forced to risk her health while she was pregnant. Her doctors told her to avoid the harsh chemicals she had to use when cleaning Walmart’s bathrooms, but her managers refused to transfer her to another position, like a cashier position, even as they hired new cashiers.
Leading State PWFA Advocacy
Throughout 2014 and in the years to come, ABB continues our leadership in pregnant worker fairness advocacy, including drafting bills, providing detailed legal analysis to state advocates and legislators, delivering testimony, working closely with businesses to address any concerns, and helping organize workers to share their stories. In 2014 alone, pregnant worker fairness laws go into effect in West Virginia, Minnesota, Delaware, Maine, and New Jersey, bringing the total number of states with explicit protections for pregnant workers to ten.
Young v. UPS
Peggy Young, a former UPS driver, was pushed onto unpaid leave while pregnant because of a modest lifting restriction. UPS pointed to a company-wide policy stating that, although they accommodated requests for many other groups of workers, they would not accommodate any pregnant workers. Young sued and her case went all the way to the U.S. Supreme Court. In its decision in March 2015, the Supreme Court told employers that if they are accommodating most non-pregnant workers with injuries or disabilities, while refusing to accommodate most pregnant workers, they are likely violating the Pregnancy Discrimination Act by placing a significant burden on pregnant workers. But who has to show that there’s a significant burden? The pregnant woman. That’s why ABB continues to call for the federal Pregnant Workers Fairness Act (PWFA).
ABB Releases “Pregnant & Jobless” Report
A Better Balance releases our report “Pregnant and Jobless” highlighting stories of women still forced to choose between a paycheck and a healthy pregnancy, even thirty-seven years after the Pregnancy Discrimination Act is passed. The need for the Pregnant Workers Fairness Act could not be clearer.
Four More States & D.C. Pass PWFAs
In 2015, pregnant worker fairness laws take effect in Illinois, Nebraska, North Dakota, Rhode Island, and the District of Columbia, bringing the tally up to 14. ABB continues to lead, working with advocates across the country to help pass these laws and ensure they are effectively enforced.
Victory in Florence
More than two years after A Better Balance began our fight on behalf of Officers Trischler and Riley, the United States Department of Justice and the City of Florence announce a landmark agreement. The City of Florence will change its policies to ensure that what happened to Officers Trischler and Riley won’t happen again. The City also has to restore paid leave to the officers and compensate them for their losses, paying out $135,000 in damages and attorneys’ fees.
More PWFA Victories – New York & Utah
New York and Utah become the 15th and 16th states with pregnancy accommodation laws. Like in most other states, both laws were passed with overwhelming bi-partisan support, highlighting the vast support for these laws across the ideological spectrum.
Walmart Enacts New Pregnancy Policy
After years of legal pressure from A Better Balance and our partners, Walmart enacts a new policy for pregnant workers, allowing employees who are pregnant, breastfeeding, or recovering from childbirth to ask for job adjustments, reasonable accommodations, and now, Temporary Alternative Duty—a program that, in most states, Walmart has previously reserved only for workers with on-the-job injuries.
Celebrating 20 States with PWFAs
The total number of state pregnant worker fairness laws rises to 20, with the addition of laws in Connecticut, Colorado, Nevada, and Washington. A Better Balance continues to help lead and advise on these campaigns across the country.
South Carolina Becomes Latest State to Pass PWFA
By May of 2018, Vermont, Massachusetts, and South Carolina join the ranks of states with pregnant worker fairness laws. As of May, 23 states and 5 cities now have explicit protections for pregnant workers. ABB Community advocate Natasha Jackson was instrumental in getting the South Carolina law passed, testifying twice in the state legislature about her experiences, and authoring an op-ed in The Post and Courier.
ABB Files First Class Action Lawsuit under NY PWFA
A Better Balance files a class-action lawsuit challenging Walmart’s “no-fault” absence control policy as systemically violating the rights of women who need leave for pregnancy-related illnesses or medical care. We file on behalf of two former Walmart employees who were fired—in violation of the New York state pregnant worker fairness law— after Walmart deemed their pregnancy-related hospital visits “unauthorized.” It is the first class action brought under the New York law.
ABB Clients Featured in New York Times Front Page Stories
A New York Times front page story, Miscarrying at Work: The Physical Toll of Pregnancy Discrimination brings to light the egregious workplace conditions and treatment of pregnant workers at an XPO Logistics’ warehouse in Memphis, TN. Tasha Murrell, an A Better Balance’s client, is featured in the story, discussing her experience of being forced to continue to lift heavy boxes even while she complained of extreme stomach pain and showed her supervisor a doctor’s note stating she should avoid heavy lifting. The article comes on the heels of another front page New York Times story in June 2018 highlighting the persistence of pregnancy discrimination in America’s largest companies, and featuring ABB clients Otisha Woolbright and Candis Riggins.
2018 and Beyond
What the Future Holds
A Better Balance has been, and will continue to be, on the front lines of fighting pregnancy discrimination across the country. From legislative advocacy to direct services to strategic litigation, we will continue to help pass and enforce laws that ensure no woman ever has to choose between her job and a healthy pregnancy. Ever again.