The Pregnant Workers Fairness Act: Long Past Due

A pregnant woman’s job shouldn’t depend on her willingness to ignore her doctor’s advice. But many women face just this choice, particularly women working in physically demanding jobs. When an employer refuses to accommodate, say, a request to shift job duties so a pregnant worker can avoid lifting more than twenty pounds for a few months, the worker will often lose her job (and possibly her health insurance), at the worst possible moment for her family. Today, Representative Nadler (D-NY) and more than 60 cosponsors introduced the Pregnant Workers Fairness Act (PWFA), a bill that would ensure women are no longer forced into this impossible position.

The PWFA provides that employers must make reasonable accommodations when employees have limitations related to pregnancy or childbirth and when these accommodations do not pose an undue hardship to employers. In other words, it requires employers to provide pregnant workers the exact same sort of accommodations they already provide employees with disabilities under the Americans with Disabilities Act. In the absence of the PWFA, courts have often rejected the claims of women whose employers fired them when they sought modifications that would allow them to continue to do their jobs. 

The Pregnancy Discrimination Act, passed more than thirty years ago, guarantees the right not to be discriminated against because of pregnancy. It says pregnant women must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” But some courts have limited this powerful rule. They have held that a woman cannot succeed in a pregnancy discrimination case unless she identifies another employee who is not pregnant, but who has symptoms nearly identical to her, who works in the same jobs as her, for the same supervisor as her, and whom her employer treated better than her. This hurdle will often be impossible to meet, particularly in small workplaces.

And while the Americans with Disabilities Act requires employers to make reasonable accommodations for employees with disabilities, courts have consistently held that pregnancy is not considered a disability. While pregnancy complications can constitute disabilities, it is often unclear whether something like a lifting restriction is appropriately considered a complication rather than a normal pregnancy symptom—and from the pregnant woman’s perspective, it is irrelevant. Whether the limitation is normal or abnormal, she needs to find a way to do her job in the face of it.

The Pregnant Workers Fairness Act will give women the ability to do this. It will ensure that women will not be caught in the loophole courts have opened between the Pregnancy Discrimination Act and the Americans with Disabilities Act. It is long past time to make room for pregnancy in the workplace.