pregnancy discrimination


Getting pregnant and raising children isn’t something American employment law does much to encourage. The right to pregnancy leave is a meager 12 weeks and only covers larger employers, and, alone among industrialized nations, is unpaid. The pay disparity between men and women is largely the product of women being penalized for taking time off for having children, and discrimination against parents is rampant. Our ruling class views having children as a personal luxury, rather than as ensuring the future of humanity. However, in a bit of good news, the Supreme Court today leveled the playing field a bit in favor of pregnant workers. In Young v. United Parcel Service, the Court had to decide if the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000(e)(k), requires an employer to provide pregnant employees with the same light-duty options that it supplies to other employees who require light duty for other reasons. Peggy Young, a UPS driver, needed light duty because of her pregnancy. UPS had a practice of giving temporary light duty to employees who needed an accommodation of a disability under the Americans With Disabilities Act (ADA) and in a few other instances (remember, a normal pregnancy is not protected under the ADA). But, UPS’ policy was not to give light duty to pregnant employees, despite the PDA’s requirement that employers treat “women affected by pregnancy...the same for all employment-related other persons not so affected but similar in their ability or inability to work.”

A clear and simple decision in this case would have been that if an employer gives disability accommodations to some employees, it must give them to pregnant employees. However, the majority recoiled from the idea that pregnant employees be always treated just as well as those other, fortunate employees who may enjoy accommodations - that would be granting “most-favored-nation” status to pregnant employees, and just wouldn’t do. According to the Court, there is no way that Congress intended to put pregnant employees at the top of the heap as far as access to job accommodations goes. Perhaps the Court is right.

However, the Court took a position that, practically speaking, will still entitle pregnant employees to at least most of the accommodations offered to their fellow employees. The Court held that a pregnant employee claiming discrimination in access to light duty or other job accommodations can get to a jury if she can show that “the employer’s policies impose a significant burden on pregnant workers” and that the employer’s “legitimate, nondiscriminatory” reasons for doing so are not strong enough to justify the burden. What constitutes a “significant burden” or strong enough (allegedly) nondiscriminatory reason will surely keep the district and circuit courts busy for years to come. But the Supreme Court today made it a lot harder for employers to get summary judgment on a pregnancy discrimination claim, and that’s good news for everybody.

Pregnant Women in NYC Get Accommodations Starting Today!

We've written before about the Pregnant Workers Fairness Act, which requires employers with 4+ employees to provide pregnant workers with reasonable accommodations for their pregnancy, child-birth, or pregnancy/child-birth related medical conditions (like, say, gestational diabetes). Such accommodations might include more frequent breaks, not having to lift heavy things for a few months, or taking some time to recover from child birth. The Act goes into effect today. It may be surprising to realize that federal law doesn't require employers to provide pregnant women with any accommodations for pregnancy or child birthUnless a pregnant worker has some other disability, under federal law employers are free to require them to stand all day without bathroom breaks and to come back to work the day after the baby is born.

This is due to a gaping hole between the Pregnancy Discrimination Act and the Americans with Disabilities Act. The Pregnancy Discrimination Act defined discrimination against women to include discrimination against pregnant women. That is, discrimination against someone for being pregnant is the same as discriminating against women.

This makes a certain amount of sense -- only women become pregnant, many of the reasons that people discriminate against women has to do with the possibility of them becoming pregnant, and many of the reasons people discriminate against pregnant workers has to do with people's stereotypes about women (i.e., that they'll become mothers and then give up on work).

The problem is that pregnant women need certain accommodations that other women don't -- like frequent rest breaks, or restrictions on how much they can carry. The only federal law that might require an employer to offer these kinds of accommodations is the Americans with Disabilities Act. But in order to get accommodations under the ADA, you have to be disabled. The law doesn't define pregnancy or childbirth as disabilities, meaning accommodations someone needs related only to pregnancy or childbirth aren't covered by the ADA.

New York City, joining in with many other localities, like the state of California, is filling in the gaps and providing its pregnant residents with better protections. Under the New York City law, employers with 4+ employees must provide reasonable accommodations for pregnancy, child birth, or related medical conditions. "Reasonable accommodation" is a bit of a term of art, but it essentially means that the employer has to provide accommodations to help the employee do their job so long as the accommodation does not constitute an "undue hardship" on the employer. If you are pregnant and your employer is refusing to accommodate your pregnancy, child birth or related medical condition, contact a lawyer.

NYC Passes Law Protecting Pregnant Employees From Discrimination

New York City has recently enacted an anti-discrimination law that will go a long way in prohibiting discrimination against pregnant workers. The Pregnant Workers Fairness Act amends the NYC Human Rights Law to require NYC employers with four or more employees to provide reasonable accommodations necessary because of pregnancy, childbirth or a related medical condition. The kind of accommodations that the new law requires NYC employers to give pregnant workers include frequent bathroom breaks, breaks to facilitate increased water intake, periodic rest for those workers who stand for long periods of time, assistance with manual labor and a period of recovery from childbirth. If an employer does not provide a pregnant worker a needed accommodation, the worker may sue the employer for damages. In that situation, to escape liability, the employer will have to prove that the requested accommodation would pose an undue hardship (e.g. it would cost too much money or disrupt workplace operations), or that the pregnant worker, even with the requested accommodation, could not perform the essential function of the job. The kind of workplace modifications that pregnant workers need are usually fairly minor and inexpensive, so it is doubtful that employers will succeed in proving that the accommodation would pose an undue hardship. The NYC law is very important because currently federal and NY State anti-discrimination laws do not require employers to make reasonable accommodations for pregnant women. As a result, pregnant workers, deprived of job modifications that would allow them to continue to work through their pregnancy, have lost their jobs. Others have endangered their health by working while pregnant without some accommodation to their schedule or job duties. This is especially true for low-income employees, like cashiers, who have to stand on their feet for long periods or employees who have to lift objects as part of their job. The Pregnant Workers Fairness Act assures that pregnant workers do not have to choose between their health and jobs. In addition to New York City’s Pregnant Workers Fairness Act, seven states have laws that require employers to provide reasonable accommodations to pregnant women. The federal anti-discrimination law, Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination because of pregnancy or a related medical condition, but it does not require employers to provide reasonable accommodations to pregnant workers, like the NYC law does. The U.S. Congress has left dead in the water a federal Pregnant Workers Fairness Act which would obligate employers to accommodate pregnant employees. The last time the bill was introduced neither the House nor the Senate even held a hearing to consider its merits. When Congress fails to do its duty to protect workers from discrimination, municipal and state governments, like in NYC, have to step in.

We Support the Pregnant Workers Fairness Act

The Senate today introduced the Pregnant Workers Fairness Act, which would allow pregnant women “reasonable accommodations” while at work. Currently, unless a pregnancy involves unusual complications, pregnant women are not entitled to protections under the ADA. This means that women can be fired for needing even small pregnancy-related accommodations, like needing to drink water on the job. This law would change that, and recognize that women shouldn’t have to choose between having a healthy pregnancy and keeping her job. Write your Senator, and ask him or her to support the bill.