There has been a lot of talk recently about a lack of protections for employees, especially the most vulnerable in the United States. In January, the House Education and Labor Committee approved the Pregnant Workers Fairness Act, which would follow the Americans with Disabilities Act (ADA)’s framework and require employers to provide pregnant workers with reasonable accommodations. First introduced in 2012, it is time for Congress to finally pass this bill and support all women in the workplace.

The U.S. must support pregnant workers if we are ever to achieve equality in the workplace

Pregnancy, which should be an exciting time for a woman can become stressful, unpleasant, and potentially dangerous when an employer does not provide a pregnant woman with accommodations at work. The Pregnancy Discrimination Act (PDA), passed in 1978 amended Title VII of the Civil Rights Act of 1964 (Title VII) to include a proscription on discrimination based on pregnancy. Still, pregnant women face discrimination in the workplace daily, and often employers are unwilling to provide them with simple accommodations such as extra breaks, lighter lifting requirements, or access to snacks throughout the work day.

Not providing reasonable accommodations for pregnant workers forces women to choose between a healthy, safe pregnancy and remaining at work. Once women leave the workplace during a pregnancy, not only do financial situations and access to health insurance become tenuous, but it can become more difficult for women to re-enter the workforce. Forcing women to choose between wellness during pregnancy and remaining at work perpetuates gender stereotypes, forcing women to be home when they do not want to be, and periods of unemployment during pregnancy and postpartum can also make it difficult for women to find comparable work after giving birth.

Although over half of the states have passed pregnancy accommodation laws, many of which follow the ADA’s framework, federal law is still murky and places a high burden on women seeking reasonable accommodation at work. This is why the Pregnant Workers Fairness Act is so important. The time is right for Congress to finally pass this bill and support women in the workplace.

Current burden to prove pregnancy discrimination

In the seminal case Young v. UPS, the Supreme Court held that employers must accommodate pregnant employees who ask for accommodation in the same way they do other workers “similar in their ability or inability to work.” Peggy Young, a driver for UPS could not lift over 20 pounds during the first 20 weeks of her pregnancy and no more than 10 after that, per her doctor’s orders. UPS told her she could not work with the lifting restriction (including a manager informing her she was “too much of a liability” while she was pregnant), so Young remained on unpaid leave for most of her pregnancy. The Court held that where UPS accommodated other workers who had lifting restrictions due to disability, injury, or loss of DOT driving certification, these workers may have been treated more favorably than Young, despite their reasons for accommodation not being readily distinguishable.

Under Young, a pregnant woman seeking to prove discrimination most prove that:

• She belongs to the protected class (she is/was pregnant);

• She requested accommodation;

• The employer did not accommodate her; and

• The employer did accommodate others “similar in their ability or inability to work.”

After a pregnant woman proves this initial case, the employer may justify its denial of accommodations by citing “legitimate, nondiscriminatory reasons.” After the employer offers legitimate reasons (cost or inconvenience alone are not considered legitimate reasons), the employee may provide evidence that the supposedly legitimate reasons are pretextual. A pregnant worker can prove pretext by showing an employer’s offered reasons place a “significant burden” on pregnant workers and are not strong enough to justify the burden.

Young leaves much to be desired

Although the Young decision has widely been interpreted as a victory for pregnant women seeking accommodation in the workplace, it does not go far enough. The Court made a point of stating that the PDA does not give pregnant women “most-favored-nation” status. Under the most-favored approach, the Court wrote, an employer would have to accommodate any pregnant worker when it has made accommodations for any other worker with comparable limitations, irrespective of other factors such as the other worker being especially necessary, or of a certain age, or senior at the company.

But, if an employer is able to accommodate any non-pregnant worker who has similar limitations as a pregnant worker, why shouldn’t these employers be required to accommodate pregnancy? Would this really provide pregnant women with “most-favored-nation” status, or would it just force employers to accommodate pregnancy, as many have proven unwilling to do? In evaluating these issues, it is important to consider the compelling public policy justifications for accommodating pregnant women, including decreasing pregnancy complications and enabling women to remain in the workforce at a time when most families require two incomes to pay the bills. And stronger protections for pregnant women would arguably reduce pay disparities between men and women by enabling women to more easily move up the ladder.

Pregnant women are still overwhelmingly denied accommodations

In a report released in May 2019, A Better Balance, in a review of post-Young v. UPS pregnancy accommodation cases found that over two-thirds of cases resulted in courts ruling for employers.

The authors of the report cited three main issues with the Young standard:

1. The difficulty in finding comparators who are “similarly in their ability or inability to work”;

2. Confusion in proving that an employer’s offered reasons for not providing accommodation places a “significant burden” on pregnant women; and

3. The high costs of litigation due to an unclear standard causing drawn-out court battles.

The authors suggest that without federal legislation protecting pregnant women, pregnant women will continue to be burdened with having to prove they need accommodations. This is a burden that is not placed on other workers seeking accommodation, including those under the ADA.

The Pregnant Workers Fairness Act will better protect pregnant employees and support workplace equality

The Pregnant Workers Fairness Act, introduced by Rep. Nadler of New York would make it illegal for employers to deny accommodations for limitations due to pregnancy, childbirth, or related medical conditions. After introduction in five consecutive congressional sessions, the bill would provide a change in the law that is long overdue. The language of the bill closely mirrors that of the ADA, so it provides a framework with which employers are accustomed. And while it may not be “most-favored-nation” status, pregnant workers should, at the least, be able to remain safe without worrying about keeping their jobs.