Going Nowhere Slow: Pregnant Workers Fairness Act


The original version of this article was accidentally deleted from our site and so is re-published here.

Anyone who has watched TV in the last few days is probably aware that Grammy winning crooner Adele is pregnant, and that Kourtney Kardashian is expecting her second. Famous women’s pregnancies are a hot topic — we are told all about how they’re naming their child after a fruit, how they plan to get fit after giving birth, and even how they balance work during pregnancy.

Few will ever hear of Amber Reeves, a pregnant truck driver who was fired after requesting accommodations in her work duties. Reeves was instructed by her obstetrician not to lift more than 20 pounds, and her job required her to lift up to 75 pounds. She couldn’t perform her regular duties, so her employer terminated her. Her employer only made modifications like this for people who are injured on the job.

Unglamorous and unprotected by the law, pregnant women in labor-intensive jobs often find themselves in this kind of predicament. This is why the National Women’s Law Center and about 100 other organizations are championing the Pregnant Workers Fairness Act (PWFA), a bill that could prevent employers from firing women who are unable to perform all the functions of their job due to pregnancy or who seek some workplace accommodations due to pregnancy. The PWFA was introduced in Congress in May in an attempt to give a cause of action to women like Reeves.

For now, the bill is going nowhere slow.

I emailed Hofstra law professor Joanna Grossman, a prolific writer on sex discrimination and family law. Grossman feels the bill will not gain traction because of Congress’s resistance to imposing burdens on employers. Currently, GovTrack gives the bill a sad 3 percent chance of being enacted.

It’s true, regulations like the PWFA are a burden on employers — but we have to balance that burden against the conditions many US working mothers face. Most mothers are not Kardashians living in Calabasas. The National Women’s Law Center points out that In 2010, 41 percent of working mothers were their family’s primary breadwinner. Pregnancy and a new baby means increased expenses, and a woman’s wages will often be particularly important during this time.

There are laws that protect pregnant women from discrimination, but they have not been interpreted to protect women seeking adjustments to their work responsibilities. The Pregnancy Discrimination Act (PDA) was passed over 30 years ago and prevents discrimination “on the basis of pregnancy, childbirth and related medical conditions.” But the PDA is interpreted to only protect women who are pregnant but not hindered in job performance due to pregnancy or women who cannot work at all and need leave.

It leaves pregnant women — women who need and can continue to work but need some adjustments made to their workload — in purgatory.

Similarly the Americans with Disabilities Act (ADA) also does not serve as a cause of action for pregnant women who are seeking adjustments accommodations at work, as pregnancy is not deemed a disability under the ADA.

So here we sit with the PDA of 1978 prohibiting discrimination based on pregnancy, and the ADA of 1990 prohibiting discrimination based on disability, yet women like Reeves cannot successfully raise a cause of action under either of these laws. There seems to be a clear need for the PWFA, which could help protect women in physically demanding fields whose job capacity is partially diminished due to pregnancy. The PWFA is modeled after the Americans with Disabilities Act (ADA) and would allow pregnant workers to sue for money damages.

The current Congress may not pay any attention to the PWFA, but advocates should continue pushing for it at the federal and state level. The good news: several states already have PWFA-esque protections including California, Connecticut, Louisiana, Hawaii and Texas. These laws require employers to provide reasonable accommodations for pregnant employees. California’s law has been used multiple times to help pregnant women keep their jobs.

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