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Pregnant Workers Need Legal Protection

Legislation snarled in Congress would fill in gaps in the law to safeguard women on the job.

The National Law Journal

Monday, July 14, 2014

The stories are legion. A pregnant woman under a medical lifting restriction is denied light duty by her employer. Another employee requests to leave an hour early for a prenatal doctor's appointment; in response, her boss fires her. Still others cannot obtain temporary, often minor, adjustments to their working conditions like a stool to sit on, permission to carry a water bottle, more frequent eating and bathroom breaks, an indoor assignment during a heat wave and flexible hours. It goes without saying that more significant accommodations to problem pregnancies (for example, a threat of miscarriage requiring several weeks of bed rest) will yet more often be met with intransigence.

The results of employer inflexibility in these situations can be dire. If the expecting mother decides to “suck it up,” she risks her own and her fetus’s health. Deprived of sufficient food or hydration, pregnant women have collapsed on the job and ended up in the emergency room. If, however, the employee opts to safeguard her pregnancy, she can either be terminated or, at best, placed on (usually uncompensated) leave. The loss of wages and benefits come, moreover, just when an added mouth to feed will strain her resources and she will most need medical coverage.

This Hobson's choice between economic and physical well-being affects poorer people the hardest. The low-level jobs such workers occupy tend, too, to be those offering the least tolerance for deviations from set procedures — Wal-Mart cashiers are more replaceable than managing directors at Morgan Stanley.

The curious reader might well ask whether the type of employer conduct described here is actually legal. Does it not harken back to the pre-1960s era, when companies could freely discriminate against women without running afoul of either Title VII or equal protection? The answer is that, despite the reforms wrought by the Civil Rights Act of 1964 and other statutes and court decisions, in many places and, notably, at the federal level, pregnancy falls between the cracks.

For that reason Congress should enact the Pregnant Workers Fairness Act (PWFA), which is bottled up in committee. Given the prevailing legislative gridlock, its prospects for passage are grim. Yet spotlighting how it would remedy the defects of existing law, at least, might encourage the adoption of similar protections at the state and local levels — such as has already occurred in about 10 states and in New York City and Philadelphia.

The major advance embodied in the PWFA is the imposition of affirmative duties on employers dealing with pregnant women. The pending bills would make it unlawful to “not make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of a job applicant or employee,” unless the covered entity can demonstrate that the accommodation would constitute an undue hardship to the business. In addition, employment opportunities may not be denied based on the need to extend such reasonable accommodations. Finally, an employer may not require the worker to accept an accommodation she does not want or make her take leave “if another reasonable accommodation can be provided.”

History's Lesson

History furnishes an explanation of the need for the act. Although Title VII, enacted in 1964, forbade discrimination on the ground of sex, in the 1976 decision General Electric v. Gilbert, the U.S. Supreme Court held that exclusion of pregnancy from a company disability policy did not amount to “sex” discrimination. A less ossified Congress quickly reversed that decision by passing the Pregnancy Discrimination Act of 1978, which clarified that discrimination “on the basis of sex” includes pregnancy discrimination: “Women affected by pregnancy” had to be treated the same “for employment-related purposes … as other persons … similar in their ability or inability to work.”

One might think that the Pregnancy Discrimination Act's equality mandate (if not Title VII's) would have compelled that pregnant workers receive such reasonable accommodations as lifting restrictions, at least, when the company gave them to similarly situated workers such as those injured on the job.

Yet, perhaps because of the blinkered view that pregnancy is a voluntary status, many courts consider these types of distinctions as “pregnancy blind” and, therefore, legal. Otherwise put, those courts refused to recognize men with the same needs as appropriate comparators and, therefore, regarded the women's claims as demands for "special treatment.”

Nor did the Americans With Disabilities Act (ADA), which took effect in 1990 and, as amended in 2009, solve the problems of pregnant women who need on-the-job accommodations. That is because, for reasons not entirely clear, the U.S. Equal Employment Opportunity Commission Guidelines rule out pregnancy as a covered “impairment.”

To be sure, some courts created a humane, if analytically questionable, loophole for “abnormal” pregnancies. But many did not, resulting in a patchwork of precedents. Finally, the Family and Medical Leave Act of 1993 cannot fill the gap produced by the ADA's pregnancy exclusion. Among other things, it extends only to businesses with 50 or more employees, has stringent eligibility requirements and provides solely unpaid leave.

In a nutshell, only the proposed PWFA can give pregnant women full parity with other workers who need reasonable accommodations so as to keep bringing home a paycheck while still preserving their health and safety. Simple justice demands no less.