There’s been bipartisan activity in Congress to expand the existing scope of protection from adverse employment actions against pregnant workers. That protection is embodied in the Pregnancy Discrimination Act (PDA) — a law that has been on the books since 1978. While it’s unclear today whether the proposed “Pregnant Workers Fairness Act” (HR 2694) will become law this year, knowing where its supporters are coming from could help you today to stay ahead of the curve and avoid potential legal trouble under current law.
HR 2694 cleared the House Education and Labor Committee earlier this year after Democrats who control the committee agreed to several Republican amendments. The Senate has proposed a similar measure in the past.
In a nutshell, the law focuses on standards for “reasonable accommodations” employers must grant to enable pregnant employees to continue working. It would broaden those standards beyond those laid out by the U.S. Supreme Court in its landmark Young vs. UPS decision in 2015. More about this later.
A Refresher on the Pregnancy Discrimination Act
The PDA, as it stands today, includes relevant provisions of the Americans with Disabilities Act. The Equal Employment Opportunities Commission (EEOC), which is the federal agency charged with enforcing those laws, summarizes it as follows: The laws require “that an employer treat women affected by pregnancy, past pregnancy, childbirth, or a related medical condition in the same manner as other applicants and employees who are similar in their ability or inability to work.”
That similar treatment “covers all aspects of employment,” the summary continues, “including firing, hiring, promotions, and fringe benefits such as leave or health insurance benefits.”
Here are several key elaborations on those broad principles:
- An employer may not discriminate based on an employee’s intention or potential to become pregnant, such as by excluding a woman from a job that involves processing certain chemicals out of concern that exposure would be harmful to a fetus if the employee became pregnant.
- Conditions “related to pregnancy” can include lactation. Therefore, discrimination against a woman due to her breastfeeding schedule would violate the PDA.
- Employers must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work.
- Employers may not single out an employee’s pregnancy-related condition for medical clearance procedures that aren’t required of employees who are similar in their ability or inability to work.
As noted, backers of HR 2694 believe that the existing pregnancy discrimination law’s “reasonable accommodation” provisions are weak. The EEOC offers several examples of such accommodations:
- Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed,
- Modifying workplace policies by allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though the employer generally prohibits employees from keeping drinks at their workstations,
- Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time,
- Allowing a pregnant worker placed on bed rest to telework where feasible,
- Granting leave in addition to what an employer would normally provide under a sick leave policy,
- Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing, and
- Temporarily reassigning an employee to a light duty.
While all these requirements of existing law might seem comprehensive, not everyone agrees.
A High Bar
As noted, supporters of HR 2694 believe that the U.S. Supreme Court’s Young v. UPS decision undermines fair treatment of pregnant employees.
Specifically, they believe that the Supreme Court ruling “set an unreasonably high standard for proving discrimination,” according to a summary of the bill issued by the House Education and Labor Committee. “Under [that ruling], workers must demonstrate that their employers accommodated a non-pregnant worker with similar limitations.” That presumes that pregnant employees know what accommodations have been given to non-pregnant employees.
Also, according to one of the bill’s sponsors, “In most instances, it is extremely difficult to find comparable instances that would satisfy the standard.” As a result, in two-thirds of cases tried since the Young ruling, employees have been shot down in their efforts to receive what they considered a reasonable accommodation.
Among other things, the proposed legislation requires that employees and employers discuss each of their needs in hopes of finding an accommodation that works for both parties. Meanwhile, many states and several cities already have laws like HR 2694 on their books.
It’s clear that the topic of pregnancy discrimination is a sensitive one, and both employers and employees (or applicants) have many concerns. To avoid pitfalls, employers should consult their labor attorneys prior to taking any employment actions involving women covered by the PDA.