Improving federal law for pregnant workers
Congress passed the Pregnancy Discrimination Act 41 years ago, but as we enter a new decade, pregnancy discrimination is still alive and well. Across industries — from retail workers to police officers — unfair treatment is all too common.
The reality is that pregnant workers, especially those in low-wage and physically demanding jobs, are still being treated like second class citizens, facing unique — and often insurmountable — legal hurdles to get the modest accommodations they need to remain healthy and on the job.
Consider Cassandra Adduci, who worked at a large shipping warehouse facility in Memphis, Tennessee loading and unloading boxes. During her pregnancy, her doctor gave her a 25-pound lifting restriction, but her employer refused to re-assign her to temporary light-duty work even though it was available, and they made such reassignments for other workers. Adduci was pushed onto unpaid leave and ultimately terminated.
She sued but lost her case despite producing a spreadsheet showing 261 other employees who were given temporary work reassignments or light duty.
The court refused to accept those hundreds of employees as “valid comparators,” legal terminology for pointing to coworkers treated better than herself, finding the spreadsheet did not provide “sufficient information” even though it listed dates of employees’ work reassignments.
Adduci’s case is not uncommon. In a recent report, Long Overdue, we found that more than two-thirds of pregnant workers in need of accommodation have lost their cases under the Pregnancy Discrimination Act (PDA) following Young v UPS, the 2015 Supreme Court decision which set a new standard for pregnant workers’ federal protections. The majority — 70 percent — of pregnant workers who lost their cases did so because of the courts’ rejection of their comparators or inability to identify a valid comparator.
The Americans with Disabilities Act (ADA), which passed in 1991, made clear that workers with disabilities should be entitled to an affirmative right to accommodation as a means of assuring equal treatment in the workplace. But for a pregnant worker to be entitled to an accommodation under the ADA, they must have a qualifying disability. Pregnancy itself is not a disability.
In other words, women who need a simple accommodation to prevent complication or maintain their health, such as extra bathroom breaks to prevent a urinary tract infection or light duty to prevent miscarriage, fail to qualify for ADA protection.
Even women with serious pregnancy-related conditions such as high-risk pregnancy and hyperemesis have lost their ADA cases in court. This leaves most pregnant workers in need of accommodation jumping through legal hoops to identify “valid comparators” to remain healthy and on the job — accommodations as simple as a stool, a water bottle, and temporary light-duty are often not obtainable otherwise.
This unique burden is not only unfair, but it is also tone-deaf to the realities of the American workplace.
As we know first-hand through our free legal helpline, most women in low-wage and non-traditional jobs, especially women of color, do not have easy access to their co-workers’ personnel files, employer policies (if there are any), or the luxury of time and resources to sort through these questions.
They want and need an immediate remedy to prevent complications, avoid protracted litigation, and maintain their economic security.
Women like Armanda Legros, a single mother, who was forced out of her job at an armored truck company after requesting light-duty, lost her health insurance at eight and a half months pregnant. Armanda wound up needing to rely on public benefits like food stamps just to get by.
As we ring in 2020, we can and must do better to level the playing field for pregnant workers and ensure they are not forced to choose between their paycheck and healthy pregnancy. Depriving pregnant workers like Cassandra and Armanda of the opportunity to stay attached to the workforce contributes to their economic inequality over the long run, exacerbating the gender wage gap and negatively impacting families as a whole. It also harms business and the economy.
The federal Pregnant Workers Fairness Act (PWFA) would explicitly require employers to make reasonable accommodations for women with pregnancy-related limitations absent undue hardship to the employer — the same familiar process in place for workers with disabilities under the ADA.
State legislators have recognized that offering accommodations for pregnant workers are smart policy, and now 27 states, including Kentucky in 2019, have similar laws on the books.
At A Better Balance, we are proud to help educate women about their rights under these state laws every day and ensure they can get the accommodations they need in a timely fashion.
Yet job protection and a healthy work environment should not depend on luck or location. These protections are long overdue. Now is the time for Congress to step up and pass this critical piece of legislation for pregnant workers in every state.
Dina Bakst is the co-founder and co-president of A Better Balance, a leading national legal advocacy organization that works directly with pregnant workers facing discrimination. The organization also helped inspire the introduction of the Pregnant Workers Fairness Act.
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