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Pregnant Workers Fairness Act would fortify employee protections

35 years ago, the U.S. Supreme Court ruled that discrimination against pregnant women who wanted to continue working was not sex discrimination. Instead, the court said, it was merely discrimination between women who were pregnant and women who were not, which was not illegal.

Disagreeing sharply with the court, Congress passed the Pregnancy Discrimination Act to make clear that pregnancy discrimination is gender discrimination. Furthermore, employers must base all decisions regarding women affected by pregnancy and childbirth on the same legal principles as with other employees.

With the passage of the PDA, it became illegal to take unfavorable job actions against employees simply because they become pregnant or have children. Employers can no longer fire pregnant workers, arbitrarily reassign them “for their own good” or deny reasonable requests that allow them to continue working.

The Congressional record clearly indicates that the PDA was intended to guarantee pregnant workers the full protections, rights and accommodations promised to workers with disabilities. Unfortunately, while the Congressional record can be consulted by courts, it isn’t considered an official part of the law. Over time, that has allowed some courts to make rulings directly contradicting the apparent will of Congress.

For example, the 4th Circuit recently ruled against a pregnant UPS driver whose request for a heavy-lifting accommodation was denied -- even though UPS routinely offered the exact same accommodation to other drivers with disabilities and even short-term injuries. While UPS’s refusal to grant such an accommodation to a worker with a disability might violate the Americans with Disabilities Act, the court held, denying it to pregnant workers did not violate the PDA.

In response to that trend, a new law called the Pregnant Workers Fairness Act has been proposed to offer Congress the opportunity to make its intentions crystal-clear to the courts. The proposed language directly mirrors that of the Americans with Disabilities Act to ensure courts clearly understand that reasonable accommodations must be granted.

Pregnant women and new moms have enough to deal with without illegal pregnancy discrimination threatening their livelihoods. The Equal Employment Opportunity Commission has named the enforcement of reasonable pregnancy accommodations as one of its strategic priorities for the next five years. As long as courts insist on denying childbearing women the basic protections they need to work, however, that may not be enough.

Source: National Women's Law Center blog, "The Pregnancy Discrimination Act at 35: The Need to Restore and Reinvigorate the Pregnancy Discrimination Act," Cortelyou Kenney, Fellow, and Emily Martin, Vice President and General Counsel, Nov. 1, 2013

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