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As Protections for Pregnant Workers Falter in Congress, States Step Up

The 1978 federal pregnancy discrimination law hasn’t kept up with changes in the workplace, and efforts to reform it have failed.
by | December 2018

Forty years ago, Congress amended civil rights law to cover pregnant women, giving them federal protection against being fired, reassigned, docked pay or denied benefits based on their condition. The Pregnancy Discrimination Act of 1978 required employers to allow women who are pregnant the same leaves of absence they’d give an employee on leave for sickness or disability. 

It was a landmark piece of legislation. But it hasn’t stood up very well in an era when many more women are in the workplace. For one thing, it doesn’t apply to businesses with fewer than 15 employees. It’s also full of loopholes. Employers don’t have to accommodate a pregnant woman’s need to work sitting down, to use the bathroom more frequently or to have a private area to pump milk after the baby’s born. “Even though pregnancy discrimination has been illegal for a generation, it’s still pretty rampant,” says Sarah Fleisch Fink, director of workplace policy at the National Partnership for Women and Families. “It exists across industries, race and ethnicity, although it disproportionately impacts women of color. Women are still fired for being pregnant.” 

The limitations of the 1978 law gained national attention in 2015, when a driver for United Parcel Service sued the company for forcing her to take unpaid leave during her pregnancy because her doctor warned her against lifting boxes heavier than 20 pounds. The case made its way to the U.S. Supreme Court, which ruled that women did have a right to ask for special accommodation for pregnancy if they could prove that the employer had made similar accommodations for other employees. 

In 2016, the National Partnership for Women and Families released a report claiming that over the previous four years, more than 30,000 complaints of pregnancy discrimination had been filed either with the U.S. Equal Employment Opportunity Commission or a state-level employment fairness agency. The report found that 28 percent of those complaints were filed by black women, who made up 14 percent of the workforce. Another report by the same organization claimed that around 250,000 women are denied requests annually for some sort of pregnancy accommodation in the workplace.  

Every year since 2012, U.S. Rep. Jerrold Nadler has introduced the Pregnant Workers Fairness Act in Congress, which would require that employers provide reasonable accommodations for pregnant women. It has not yet received a hearing. In the meantime, however, states have been stepping in to fill the void -- and striking up unusual partnerships along the way to protect pregnant workers. “Just as employers have to accommodate you if you’ve had a back injury or are in a wheelchair, they have to treat you just as well for conditions related to pregnancy,” says Emily Martin of the National Women’s Law Center. “States really have been taking the lead on this and stepping into the vacuum of leadership.” 

Twenty-three states now have pregnancy discrimination laws in place, 18 of them enacted in the last five years. The most stringent are in Colorado, Hawaii, Illinois, New Jersey, North Dakota, Vermont and the District of Columbia. They require all employers -- no matter the size of the company -- to put in place a set of commonly sought pregnancy protections. Other states have passed somewhat less demanding laws, which require “reasonable accommodations” in place for public employees. A reasonable accommodation is usually defined as allowing a pregnant woman access to things that would keep her safe at work, such as seated workstations, more frequent bathroom breaks and the freedom to carry water around the workplace. Many of the new state laws require proof of an “undue hardship” on the employer before a reasonable accommodation request can be denied.

While issues of women’s health and workplace fairness tend to be linked to ideological and partisan disputes on issues such as abortion, the pregnancy anti-discrimination campaign has not had that problem. “It includes purple and red states, and they pass with bipartisan support,” says Fleisch Fink. “And many times, they pass unanimously. It’s a no-brainer; it keeps women attached to the labor force.”

In some instances, the issue has brought together ideological opposites. “We’ve been seeing some really interesting alliances between pro-life groups and feminist and workers’ rights groups,” says Jennifer Reisch, legal director of Equal Rights Advocates, a California-based legal group.

For Beth Bernstein, a Democratic state representative who co-sponsored pregnancy legislation in the South Carolina House, working with the pro-life constituency was instrumental in getting her bill passed. In particular, Bernstein was able to win the support of Republican Rep. Greg Delleney, the chairman of the House Judiciary Committee and a vocal pro-life lawmaker. “Coming from either a pro-life or pro-choice mindset,” Bernstein says, “we all care about the health of the expectant mom. Just having a senior member of the majority party support, it meant a lot.” 

South Carolina is the latest state to require employers to provide reasonable accommodations. Its law was enacted this year and went into effect in September. South Carolina is the second Southern state -- Texas was first -- to pass a pregnancy discrimination law. Its law mandates that all employers with 15 or more workers offer reasonable accommodations for pregnancy-related needs.

Since her bill was passed, Bernstein has been approached by lawmakers from surrounding states about how to get a pregnancy discrimination law passed in the South. “I emphasize bipartisan support,” she says. “Then getting the business community involved, and explaining that it’s not going to cost you more money, and it’s going to improve your morale overall.”

 


In 2015, the U.S. Supreme Court ruled that women such as former UPS employee, Peggy Young, had the right to ask for special accommodation for pregnancy. (AP)

 

Those who are skeptical of pregnancy discrimination laws argue that they constitute overregulation of private workplaces and serve mainly to drive up the number of discrimination complaints. During the 2015 Supreme Court fight between UPS and the pregnant driver, pro-business organizations such as the U.S. Chamber of Commerce and the National Federation of Independent Business (NFIB) filed briefs supporting UPS. But 23 pro-life organizations, including Americans United for Life and the Susan B. Anthony List, supported the pregnant employee. 

The far-right Eagle Forum, founded by Equal Rights Amendment foe Phyllis Schlafly, was the only traditional family values organization to take a stand against pregnancy discrimination laws during the Supreme Court battle. “While the eradication of typical -- or even stereotypical -- families was the goal of the feminist movement, Congress generally has taken the more moderate path advocated by UPS here,” Eagle Forum’s lawyers wrote in a brief supporting the company. 

During Pennsylvania’s 2015 legislative session, a representative from NFIB testified that the organization was neutral on the bill but warned of unintended consequences. “A determination as to what constitutes a reasonable accommodation is very subjective and requires a fact intensive inquiry,” the group argued. 

It claimed that the bill would allow employees to decide on the accommodation and that the employer would need to accept it unless it could prove an “undue hardship,” a difficult standard for a business to meet and an expensive issue to litigate. According to NFIB, most small employers do not carry insurance against discrimination claims and the cost of one case could force some small firms out of business. The bill did not make it through the Pennsylvania Legislature, but the Philadelphia City Council passed a similar version soon thereafter.

So far, most of the fears of business organizations haven’t been borne out. California, which has one of the oldest pregnancy discrimination laws, has seen a steady downturn in pregnancy-related discrimination claims in the past three years. Pregnancy complaints made up 6.6 percent of all employment claims in 2015; in 2017, the number was down to 3 percent. “In California you hear a lot of grumbling about overregulation of employers,” says Resich, “but you don’t really hear complaining about this.” 

In South Carolina, the state Chamber of Commerce initially resisted pregnancy legislation, but lobbying by the bill’s supporters eventually pushed the chamber to “neutral” on the final bill. “What we’re saying,” Bernstein explains, “is if someone needs to have a stool, you can’t say that’s an undue burden. [Same with] giving someone a water bottle or a room to express milk. People would say, ‘Oh, you’re requiring a lactation room,’ but that’s not what we’re saying -- just offering an empty office can work.”

Despite the recent round of successes at the state level, pregnancy discrimination activists continue to insist that the ultimate goal is a comprehensive new federal law. “With the 40th anniversary of the Pregnancy Discrimination Act, it’s important to take stock of where we are and where we need to go,” argues Martin of the National Women’s Law Center. “It’s critical now that your ability to sit or lift heavy objects should not [determine] whether you can keep a job.”

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