Congress Re-visits Pregnancy Discrimination After Just 43 Years

Federal Pregnancy Protection: The last time Congress passed legislation to protect pregnant workers, we were listening to the Bee Gees and watching the movie “Saturday Night Fever.” (Well, maybe) Congress passed the Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act of 1964, to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. The past 43 years have shown that pregnant workers need stronger protections than that law.

Bipartisan Pregnant Workers Fairness Act proposal: Congress is back at it, touting bipartisan support to really protect pregnant workers this time. Who knew that so many women were working while pregnant and many are breadwinners at that? Everybody except Congress it seems. The Pregnant Workers Fairness Act aims to address reasonable accommodation for pregnant employees once and for all. Apparently, Congress did not notice that 30 states, DC and four cities have enacted their own pregnancy-related reasonable accommodation provisions over the years.

Current Standard: In Young v UPS, the Supreme Court allowed pregnant workers to bring reasonable accommodation discrimination claims under the PDA but the standard they set was high. Pregnant workers must demonstrate that their employers accommodated non-pregnant workers with similar limitations. Nearly two thirds of pregnancy discrimination claims have failed since Young was decided in 2015.

New Standard: The Pregnant Workers Fairness Act would mandate:

  • Private sector employers with more than 15 employees as well as public sector employers must make reasonable accommodations for pregnant workers (employees and job applicants with known limitations related to pregnancy, childbirth, or related medical conditions).
  • Similar to the Americans with Disabilities Act, employers are not required to make an accommodation if it imposes an undue hardship on an employer’s business.
  • Pregnant workers cannot be denied employment opportunities, retaliated against for requesting a reasonable accommodation, or forced take paid or unpaid leave if another reasonable accommodation is available.
  • Workers denied a reasonable accommodation under the Pregnant Workers Fairness Act will have the same rights and remedies as those established under Title VII of the Civil Rights Act of 1964. These include lost pay, compensatory damages, and reasonable attorneys’ fees.

What does this mean for your workplace? If you do not have a Pregnancy Accommodation Policy or provision in your handbook, you should. It might be a good time to take a look at what you do have and make sure it complies with heavily endorsed and likely to pass Pregnant Workers Fairness Act. We can help.