Women in the United States comprise roughly half of the workforce, and it has been estimated that 72% of female workers will become pregnant during the course of their career. And yet, pregnant workers in this country still do not have the full legal protection of the law. Many expectant women continue to be discharged from their jobs or denied reasonable accommodations that would enable them to fulfill their duties safely, leaving them and their families economically and physically vulnerable. Over the last 10 years, there have been almost 40,000 pregnancy discrimination complaints filed with the Equal Employment Opportunity Commission and recurrent litigation, emphasizing the inadequacy of current statutory protections.
The passage of the Pregnancy Discrimination Act of 1978 served to amend Title VII of the landmark Civil Rights Act (1964) to specifically target and “prohibit sex discrimination on the basis of pregnancy” and function as a critical protection for women in the workforce. The law specifically bans “discrimination on the basis of pregnancy, childbirth, or related medical conditions,” terms broad enough to protect the full spectrum of pregnancy disability. In addition, the statute also requires employers to treat pregnant women on an “equal” basis with other temporarily disabled employees, including in the establishment of accommodation or benefits.
Unfortunately, the law contains significant carve-outs that leave far too many women unprotected. Businesses with fewer than 15 employees are exempt from the provisions of the Pregnancy Discrimination Act, despite the fact that almost 20 million Americans work in our nation’s smallest businesses. In addition, the law’s equality standard does not confer additional legal protections or accommodations for pregnant women, which leaves them open to termination or forced unpaid leave.
In 1990, enactment of The American Disabilities Act created a new standard wherein employers are required to provide a “reasonable accommodation” for disabled persons to allow for the equal access and participation in the job, unless it would cause the business “undue hardship.” While pregnancy itself is not considered a disability under the ADA, many related conditions and impairments, such as gestational diabetes and hypertension, are protected inclusions.
The Pregnant Worker’s Fairness Act, a bicameral bill, was introduced in the Senate yesterday by a group of bipartisan lawmakers led by Sens. Bob Casey (D-PA) and Bill Cassidy (R-LA). Its House counterpart is led by Reps. Jerrold Nadler (D-NY) and John Katko (R-NY). This legislation will help to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”
The Pregnant Workers Fairness Act, if enacted, would foster non-discrimination practices by making it unlawful for businesses to:
- Deny reasonable accommodations to employees subject to limitations resulting from pregnancy, childbirth, or related conditions. Companies with less than 15 employees or those that can demonstrate “undue hardship” resulting from such regulation would be exempt.
- Deny a covered employee the right to an interactive process with the employer regarding the specific limitations and reasonable accommodations needed, or accept unsolicited accommodations.
- Deny employees or applicants access to employment opportunity based on the need for accommodations resulting from pregnancy, childbirth, or related conditions.
- Force an employee impacted by pregnancy, childbirth, or related conditions to take paid or unpaid leave, if a reasonable accommodation can be provided.
- Take retaliatory action against a qualified employee, based on their need for reasonable accommodation related to pregnancy, childbirth, or any related medical conditions.
In addition, the bill would provide legal remedies for covered employees subject to discriminatory practices:
- Qualifying private sector employees covered by Title VII of the Civil Rights Act of 1964 would have access to the enforcement powers, procedures, and remedies established under the act and could be awarded compensatory or punitive damages and relief as such.
- Qualifying public sector employees would have similar remedies covered under the Congressional Accountability Act of 1995, U.S. Code Chapter 5 of Title 3, and the Government Employee Rights Act of 1991.
Further, the bill has provisions that explicitly prohibit retaliation against individuals who exercise their rights under this law or encourage others to do so. Retaliation would include a range of activities including but not limited to coercion, intimidation, interference, and threats.
The Pregnant Workers Fairness Act would ensure that all pregnant women would have access to the kind of reasonable accommodations that would enable pregnant workers to maintain their employment while protecting their health and the health of their pregnancies.
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