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Dina Bakst's picture

Thirty-four years ago this week, Congress enacted the Pregnancy Discrimination Act  (PDA) to remedy a long history of discrimination against pregnant workers and promote equal opportunity.  The PDA opened workplace doors, making clear that employers could not fire, fail to hire or otherwise penalize pregnant women just for being pregnant.  The law also requires employers to treat pregnant workers as well as other employees “similar in their ability or inability to work.”

Unfortunately, the PDA’s protections have proven limited.  All too often, pregnant workers, especially women in low-wage and physically demanding jobs, are pushed out of their jobs and denied minor modifications to workplace duties, rules, or policies that would enable them to continue working and providing for their families.  For example, a retail worker in Salina, Kansas was fired because she needed to drink water on the job to stay hydrated and prevent bladder infections.  An activity director at a nursing home in Valparaiso, Indiana was terminated because she required help with a few physically strenuous aspects of her job to prevent having another miscarriage.  In Landover, Maryland, a delivery truck driver with a lifting restriction was forced out onto unpaid leave after being denied light duty, even though such positions were available for other non-pregnant workers—her case is currently being heard in the Fourth Circuit Court of Appeals.

Is this legal?  In those instances, courts found that it was.  Courts have interpreted existing legal protections narrowly, ruling that employers are not obligated to accommodate pregnant workers unless they can point to a similarly situated non-pregnant employee who was treated more favorably.  Unfortunately, most pregnant workers have limited knowledge of their employer’s business practices, especially in other offices and locations, and cannot meet this burden.

In addition, because pregnancy is not a “per se” disability pursuant to the Americans with Disabilities Act (ADA), courts have found that pregnant workers are not entitled to accommodations that are readily available to workers with disabilities.  Although the 2008 Americans with Disabilities Act Amendments Act (ADAAA) now obligates employers to accommodate a broader range of temporary disabilities, pregnant workers still must prove they have a pregnancy-related disability to qualify for coverage; healthy pregnancies are left out.

As a result, pregnant workers are routinely treated worse than workers with disabilities, despite the language of the PDA that they must be treated the same.   This is simply unacceptable.

If we’re serious about promoting equal opportunity and giving effect to the intent of the PDA, we must put an end to second-class treatment and ensure that women have an explicit legal right to a modest workplace accommodation for pregnancy and childbirth.  Pregnant women shouldn’t have to find a non-pregnant comparator, or prove they have a pregnancy-related disability, to get this basic protection.  Rather, they deserve the same protection as workers with disabilities, just as the PDA intended.

Thankfully, Congressman Jerry Nadler (D-NY), Congresswoman Carolyn Maloney (D-NY) and others introduced the federal Pregnant Workers Fairness Act in the U.S. House of Representatives in May to address this problem.  The Pregnant Workers Fairness Act (PWFA) is modeled after the Americans with Disabilities Act, and would explicitly require employers to make reasonable accommodation for employees who have limitations stemming from “pregnancy, childbirth, or related medical conditions…unless…the accommodation would impose an undue hardship on the operation of the business.”  The PWFA is common-sense legislation that would help millions of women, especially those who are economically vulnerable, to continue working while maintaining healthy pregnancies.  The bill has more than 100 co-sponsors in the House and was recently introduced in the Senate by Senator Bob Casey (D-PA) and Senator Jeanne Shaheen (D-NH).

Congress made a commitment to end discrimination against pregnant women over thirty years ago.  Unfortunately, too many of these women are still being forced off the job at a time when they need financial security the most.  The Pregnant Workers Fairness Act would help end this discrimination and promote the equality of opportunity that pregnant women have long needed and deserved.

Cross-posted from A Better Balance’s Blog.

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