No one should be forced to choose between financial security and a healthy pregnancy. The Pregnant Workers Fairness Act (PWFA) is a bipartisan proposal that establishes a pregnant worker’s right to reasonable accommodations and guarantees basic workplace protections for pregnant workers. 

The Pregnant Workers Fairness Act was introduced in the Senate in 2021 with bipartisan support and passed in the House of Representatives in an overwhelmingly bipartisan vote, 315-101! In August 2021, the Senate Health Education, Labor, and Pensions (HELP) Committee voted the PWFA out of committee in a strong bipartisan vote, and it is now ready for a vote on the Senate floor.  

Background

As women increasingly become the primary breadwinners in American households, a growing number of pregnant workers are working later into their pregnancies to maintain their family’s financial security. According to the most recent data, 88% of first-time mothers worked during their last trimester.

Unfortunately, over 40 years after the passage of the Pregnancy Discrimination Act of 1978 (PDA), workers still face pregnancy discrimination, which can include losing a job, being denied reasonable accommodation, or not being hired in the first place. A recent survey found that 62% of workers have witnessed pregnancy discrimination on the job. Democratic and Republican voters overwhelmingly support reasonable accommodations for pregnant workers.

In many instances, physicians recommend that pregnant workers avoid or limit certain risks in the workplace, including exposure to certain toxic substances, heavy lifting, overnight work, extended hours, or prolonged periods of sitting or standing. Unfortunately, many workers are forced to endure these risks because they lack access to reasonable accommodations. This is most often the case for Black and Latina workers, who are overrepresented in low-wage, physically demanding jobs.

While the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) provide some protections for pregnant workers, there is currently no federal law that explicitly and affirmatively guarantees all pregnant workers the right to a reasonable accommodation so they can continue working without jeopardizing their pregnancy.

In 2015, the Supreme Court’s landmark decision in Young v. UPS allowed pregnant workers to bring reasonable accommodation discrimination claims under the PDA. Democrats For Life was proud to write an Amicus Brief to support accommodations for pregnant women. But pregnant workers are still being denied accommodations because the Young decision set an unreasonably high standard for proving discrimination.

Under Young, workers must demonstrate that their employers accommodated non-pregnant workers with similar limitations. In most instances, it is extremely difficult to find comparable instances that would satisfy this standard. As a result, in 2/3 of cases after Young, courts ruled against pregnant workers who were seeking accommodations under the PDA.

While many states have adopted laws requiring reasonable accommodations, a patchwork of state and local laws leaves many pregnant workers with no protections at all. As of September 2020, only 30 states, the District of Columbia, and four cities required employers to provide accommodations to pregnant workers.

What’s In the Bill

The PWFA, which is closely modeled after the ADA, would require employers to make reasonable accommodations to allow pregnant workers to continue working safely. It will ensure that employers with 15 or more employees provide reasonable accommodations that are often low-cost or no cost, unless it would pose an undue hardship to the employer. The bill includes protections not already codified in the ADA or the PDA. 

According to the bill Sponsors, “It would allow pregnant workers to continue working by ensuring they can have accommodations such as additional bathroom breaks, light duty or a stool to sit on if a worker stands all day. It would prevent them from being forced out on leave or out of their jobs.” The bill also prohibits employers from denying employment opportunities to women based on their need for reasonable accommodations due to childbirth or related medical conditions.

According to Congress’ official website, “Specifically, the bill declares that it is an unlawful employment practice to…”

• fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
• require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
• deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee; 
• require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or 
• take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

The Problem and the Solution

Pro-life advocates have concerns that employers may be forced under this statute to provide accommodations for women seeking an abortion. Democrats For Life proposed language to clarify that this would not be the case and encourage adding this language and passing this historic and important legislation.