Pregnant women deserve reasonable workplace accommodations, and federal law requires them. To the extent that federal law leaves open any ambiguities on this point, the Pregnant Workers Fairness Act is needed to close them.
The U.S. chapter of the Women’s Human Rights Campaign (WHRC USA) supports H.R. 2694, the Pregnant Workers Fairness Act. The bill passed in the House of Representatives in 2020, died in the Senate, and was reintroduced this year.
The express purpose of the bill is “[t]o eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition” (emphasis added).
The bill would make it unlawful for employers to:
- Not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee (unless the employer can demonstrate that the accommodation would impose an undue hardship);
- Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation;
- Deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
- Require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided; or
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.
This is a strong bill, designed to protect pregnant women in the workplace. We are happy to see that the ACLU also supports the bill as written. WHRC USA is proud to stand with the ACLU in supporting a bill that protects women against workplace discrimination on the basis of pregnancy, a condition that is unique to women.
We note that the bill’s language, as outlined in its stated purpose, is consistent with Article 2 of the Declaration on Women’s Sex-Based Rights, which provides:
(a) The CEDAW1 emphasises the ‘social significance of maternity, and Article 12(2) states that ‘States Parties shall ensure to women the appropriate services in connection with pregnancy, confinement, and the post-natal period.’
(b) Material rights and services are based on women’s unique capacity to gestate and give birth to children. The physical and biological characteristics that distinguish males and females mean that women’s reproductive capacity cannot be shared by men who claim a female ‘gender identity.’ States should understand that the inclusion of men who claim a female ‘gender identity’ into the legal category of mother in law, policies and practice … constitute discrimination against women by seeking to eliminate women’s unique status and sex-based rights as mothers.
(c) States should ensure that the word ‘mother,’ and other words traditionally used to refer to women’s reproductive capacities on the basis of sex, continue to be used in constitutional acts, legislation, in the provision of maternal services, and in policy documents when referring to mothers and motherhood. The meaning of the word ‘mother’ shall not be changed to include men.
The bill builds on the Pregnancy Discrimination Act of 1978, which amended the Civil Rights Act of 1964 to state:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, that nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion (emphasis added).
The reason that this bill is needed to protect pregnant women at work relates to a case called Young v. U.P.S.2 In that case, Peggy Young worked as a part-time driver for UPS. Her responsibilities included pickup and delivery of packages that had arrived by air carrier the previous night. In 2006, after suffering several miscarriages, she became pregnant. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. UPS required drivers like Young to be able to lift packages weighing up to 70 pounds (and up to 150 pounds with assistance). UPS told Young she could not work while under a lifting restriction. Young stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage. She then sued UPS, and the case eventually made its way to the Supreme Court.3
The Court decided that Young was entitled to relief under the Pregnancy Discrimination Act, which is great, but in doing so, it left open a few questions about just how far employers are required to go in accommodating women whose ability to satisfy their job conditions is temporarily limited by a pregnancy. The details about which questions the Court left open are described here, and you can read all about them.
The bottom line is this: pregnant women deserve reasonable workplace accommodations, and federal law requires them. To the extent that federal law leaves open any ambiguities on this point, the Pregnant Workers Fairness Act is needed to close them. A law whose purpose is “[t]o eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition” is good for women and consistent with the Declaration on Women’s Sex-Based Rights.
1CEDAW refers to the U.N. Convention Against All Forms of Discrimination Against Women, which the U.S. has not ratified.
2Young v. United Parcel Service, Inc., 575 U.S. ___ (2015), https://supreme.justia.com/cases/federal/us/575/12-1226/#tab-opinion-3259258.
3Helpfully, the Supreme Court uses the phrase “pregnant women” throughout its opinion; the Court is apparently aware that only women are capable of getting pregnant.
*Please note that the Women’s Human Rights Campaign USA (WHRC-USA) is now officially known as Women’s Declaration International USA (WDI-USA)
