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By Cortelyou Kenney, National Women's Law Center
Cross-posted from NWLC's blog

Thirty-five years ago the Pregnancy Discrimination Act outlawed discrimination against pregnant workers. But still today, pregnant women across the country are being fired from their jobs, forced onto unpaid leave, or made to quit when they need temporary accommodations like staying off high ladders or refraining from heavy lifting. Many women can work throughout their pregnancies without any changes to their jobs. But for some pregnant workers – particularly those in low-wage and physically demanding jobs – slight job modifications can be crucial to their ability to continue safely working during pregnancy. Despite the fact that comparable accommodations are routinely offered when employees need them because of disabilities, employers often refuse to make even simple accommodations for pregnant women. As a result, many pregnant women are prevented from continuing to work even when they are willing and able to do so. Other women stay on the job despite a lack of accommodation because they can’t afford not to, potentially jeopardizing their health and the health of their pregnancies.

Today, the National Women’s Law Center (NWLC), in tandem with A Better Balance (ABB), is releasing It Shouldn't Be A Heavy Lift: Fair Treatment for Pregnant Workers, which tells the stories of eight women who were refused the same sorts of accommodations during their pregnancy that their employers provided to other workers. As the report describes, the Pregnancy Discrimination Act (PDA) requires employers to treat pregnant workers the same as those “similar in their ability or inability to work.” So if employers make reasonable accommodations for workers with disabilities, as they must under the Americans with Disabilities Act, the PDA requires employers to provide accommodations to pregnant workers with similar limitations, too. But all too often, employers and the courts misunderstand and misinterpret these requirements.

Take the case of Peggy Young, whom the Center has written about before. Young worked as an air driver for UPS. When she became pregnant, UPS told her she had to bring a doctor’s note with her restrictions. Her doctor recommended she lift no more than 20 pounds. UPS told Young that UPS has a policy of no light duty for pregnancy – even though the company provided it to employees injured on the job, those protected by the Americans with Disabilities Act (ADA), and to others with conditions ranging from high blood pressure to sleep apnea that prevented coworkers from maintaining a commercial driver’s license. As a result, UPS forced Young to go without pay and benefits, including health insurance. She sued and lost in both the district court and Court of Appeals. Both courts held she was not “similarly situated” to the other workers who were accommodated, despite the fact that her lifting restriction was similar to the limitations of some accommodated workers.

Or take the story of Svetlana Arizanovska. She worked two jobs to support her family: one as a packer at a medical supply company and another as a stocker on the overnight shift at Wal-Mart. She had had a previous miscarriage (after being forced to lift heavy merchandize at Wal-Mart) so her doctor characterized her pregnancy as “high risk” and gave her a lifting restriction. The medical supply company had no problem honoring her doctor’s note and this time Wal-Mart even put her in the toothbrush aisle for a couple of days. But soon after, her employer announced that there was no light duty available to pregnant workers. Wal-Mart then asked Arizanovska to “fill out some forms,” which turned out to be papers stating that Arianovska had a serious health condition and needed unpaid leave. Her doctor refused, saying she was healthy and could work, as long as she wasn’t required to do heavy lifting. Since she couldn’t fill out the FMLA forms, Arizanovska was terminated. Shortly thereafter, she miscarried again, which her doctor said could have been the result of work-related stress and depression. Arizanovska filed suit, and also lost because she couldn’t identify a nonpregnant co-worker who received light duty, despite Wal-Mart’s stated policy of accommodating workers with disabilities, including through job reassignment. The ordeal tore her family apart and contributed to her divorce and severe financial difficulties.

Young and Arizanovska are not alone. Too many pregnant women are being forced to make an impossible choice between their jobs and their health.  The report tells the stories of cleaners, fast food workers, postal workers, and others who were fired or forced to take unpaid leave when their employers refused to make any adjustments to their job duties.

Luckily, it doesn’t have to be this way, as the report explains by setting out a straightforward agenda for change. The Equal Employment Opportunity Commission should issue guidance to employers, employees, practitioners, and the courts that employers must make accommodations to pregnant workers just as they provide accommodations to workers with disabilities. Congress should pass the Pregnant Workers Fairness Act, which would unambiguously require employers to provide reasonable accommodations to pregnant workers who need them unless doing so would present an undue hardship. All states should take action to ensure accommodations for pregnant workers. For example, advocates in New York are pushing for passage of the Women's Equality Agenda, a 10-point plan to promote fairness and equality for women, which includes a provision that would guarantee reasonable accommodations for medical conditions related to pregnancy or childbirth. Finally, employers need to adopt policies for accommodating pregnant workers just as they have policies for accommodating workers with on-the-job injuries. It’s long past time to make room for pregnancy on the job and give pregnant women the equal opportunity they deserve.

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