Testimony As Prepared for Delivery Dina Bakst, J.D., Co-Founder & Co-President, A Better Balance
Thank you to the chairs, ranking members, and distinguished members of the subcommittees for the opportunity to testify today in support of the Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act.
A Better Balance is a national legal advocacy organization dedicated to advancing justice so workers can care for themselves and their loved ones without risking their economic security. We founded A Better Balance 15 years ago because we recognized that a lack of fair and supportive work-family laws and policies – the “care crisis” – was disproportionately harming women, especially Black and Latina mothers, in low-wage jobs.
This bias and inflexibility often kicks in when women become pregnant and then snowballs into lasting economic disadvantage. We call this the “pregnancy penalty”—and since day one, A Better Balance has recognized it as a key barrier to gender equality in America.
We’ve heard from thousands of women in both the public and private sector on our free legal helpline who have experienced the harsh blow of the pregnancy penalty.
Armanda Legros, a mother on Long Island, was forced out of her job at an armored truck company because her employer would not accommodate her lifting restriction. Without an income, she struggled to feed her newborn and young child. As she told the Senate HELP committee in 2014, “Once my baby arrived just putting food on the table for him and my four-year-old was a challenge. I was forced to use water in his cereal at times because I could not afford milk.”
Years later, we’re still hearing the same stories of pregnant workers, who are fired or forced out — instead of being granted temporary, reasonable accommodations. This time, it’s with a global pandemic in the backdrop that has forced millions of women to risk their health or leave the workplace with a lack of paid leave and child care exacerbating their challenges.
At the height of the pandemic, we heard from Tesia, a pregnant retail worker in Missouri. Tesia called us because the store’s water fountain was shut down due to COVID-19 safety concerns. To avoid dehydration — which can lead to significant health consequences during pregnancy — she asked her manager if she could keep a water bottle behind the counter. He refused. Worried about the health of her pregnancy, she left her job.
Sarah, a healthcare worker in Kansas, resorted to pumping milk in her car just once a day after her boss disparaged her for pumping at work. She frequently became engorged and suffered from painful clogged milk ducts. Her milk supply dropped. This took place in spite of the fact that at least six of her coworkers regularly took smoke breaks multiple times a day.
Why, nearly 10 years later, was Tesia in the same position as Armanda?
Why didn’t Sarah have any recourse when she needed to pump?
Why have we heard from hundreds more women in the same position?
The answer is gaps in the law itself.
Neither the Pregnancy Discrimination Act nor the Americans with Disabilities Act provide an explicit right for pregnant workers with known limitations and who need accommodations to maintain a healthy pregnancy. In our 2019 report “Long Overdue,” we found pregnant workers are losing two-thirds of their pregnancy accommodation cases because the 2015 Supreme Court case Young v. UPS laid out an overly complicated, burdensome standard requiring pregnant workers to jump through legal hoops and prove discrimination to get something as simple as a water bottle.
This standard is unfair and a barrier to justice, especially for Black and Latina women, in low-wage, inflexible, and physically demanding jobs who need timely accommodations to protect their health and their paycheck.
Alternatively, the Americans with Disabilities Act covers those with disabilities, but a worker with a routine pregnancy who needs an accommodation to prevent a complication is completely out of luck.
The Pregnant Workers Fairness Act would finally put an end to this second-class treatment and ensure that pregnant workers have an affirmative right to workplace accommodations.
I was honored to testify on this legislation in October 2019, which passed in the House this past September with overwhelming bipartisan support. In the midst of a global pandemic and “she-cession,” there is simply no reason for it not to pass again without delay.
The 2010 Break Time for Nursing Mothers Law is also falling well short due to broad exclusions and weak enforcement mechanisms.
Due to where the law is placed in the Fair Labor Standards Act, nearly nine million women of childbearing age are excluded from the law’s protections. Those who are covered have no effective remedy for violations of the law. One federal judge put it best, calling the Break Time Law’s remedy “toothless,” and the law’s incentive to terminate a breastfeeding worker rather than accommodate her an “absurdity.”
Extensive research shows that breastfeeding has immense benefits for mothers and children from preventing breast cancer in moms to preventing obesity and asthma in children. While most women start out breastfeeding, the numbers sharply drop as time goes on, often because women lack the workplace support to continue breastfeeding. The PUMP Act will change that by closing gaps in the law and finally guarantee fair treatment for nursing mothers.