In May, the US House of Representatives passed the Pregnant Workers Fairness Act, which if subsequently passed in the Senate, will require employers to reasonably accommodate workers and job applicants who need accommodations due to pregnancy, childbirth, and related medical conditions. Rather shockingly, there is no right under the Civil Rights Act of 1964, or an amendment by the Pregnancy Discrimination Act (PDA) of 1978, for employers to provide workplace pregnancy accommodations. Instead, pregnant workers must classify their pregnancy or any pregnancy-related conditions as a disability and funnel any requested accommodations under the Americans with Disabilities Act (ADA).
The PWFA is designed to fill in the gaps that exist between the Civil Rights Act, the existing PDA, the ADA, and even the good ol’ Family and Medical Leave Act (FMLA) to provide protections for pregnant workers. Specifically, the bill “prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by a pregnancy, childbirth, or related medical conditions.” Unlike previous bills, this measure classified a qualified employee as any “employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.” The bill states that it would be unlawful for any employer to fail to make reasonable accommodations for such employees (unless the accommodation would impose an undue hardship on an entity’s business operation); fail to enter into the reasonable accommodation process and force a worker to accept an accommodation that they had no input in; deny employment opportunities based on the knowledge that accommodations may be required; require workers to take paid or unpaid leave if a reasonable accommodation cannot be made; or retaliate or take action against any employee requesting reasonable accommodations. The bill would also prohibit employers from rejecting an applicant who asks for accommodations on account of her pregnancy or for postpartum complications without trying to find a reasonable accommodation.
Employment lawyers suggest that if passed, employers need to amend their existing reasonable accommodation process that they exercise under the ADA to better meet the needs of their pregnant workers. Examples of reasonable accommodations could include providing a pregnant worker who experiences leg swelling from standing for long periods with a stool to perform their job, offering temporary light duties to a worker who cannot fit in protective gear as a result of her pregnancy, offering additional bathroom breaks for pregnant workers, or even reassigning heavy lifting duties to other workers for a portion of an employee’s pregnancy.
Obviously, these stronger pregnancy discrimination laws stand to benefit women of childbearing age, but could they actually be a boost to your business? According to the 2021 workplace pregnancy discrimination report, businesses also stand to benefit by being able to retain qualified staff, reduce turnover, and decrease reliance on temporary staff to take over for women who find they can’t work during their pregnancy or return to their jobs just six weeks post-partum (as is standard practice in the US). Further, lead researcher Carly McCann notes that “particularly in the case of pregnancy accommodations, they are by nature, temporary. They tend to be relatively minor, and often, there’s no direct cost to the type of accommodations that pregnant workers need in the workplace.” She adds that “those types of things don’t have a direct cost,” which in turn should incentivize employers to participate in order to avoid the hassle of hiring new staff.
McCann notes, however, that employers most stand to benefit from stronger pregnancy discrimination laws because it will clear up so much of the existing ambiguity about how pregnant workers should be treated and how their needs can be accommodated. Currently, 47 states and the District of Columbia have their own pregnancy anti-discrimination laws and 29 have pregnant worker fairness acts, which “require employers to make reasonable accommodations for pregnant employees so that they can stay healthy while working.” Kind of ambiguous, right? Not to mention confusing if your business operates across multiple states. “The main benefit is clarity,” McCann notes, adding that “the proposed Pregnant Workers Fairness Act essentially adopts the Americans with Disabilities Act, and just outright requires employers to provide accommodations.”
So, could your workplace be at risk for pregnancy-related discrimination? According to the report, pregnancy discrimination is most frequently reported in male-dominated industries. Further, organizations with a higher number of male managers are more likely to be the subject of a pregnancy discrimination lawsuit than their peers with a higher percentage of female managers. By industry, healthcare and social assistance, retail, accommodation, and food service were most prone to pregnancy-related discrimination. In terms of the most frequently reported discrimination charges, 68 percent reported being let go, 28 percent reported that terms and conditions were violated, 17 percent reported harassment, and 12 percent involved issues with accommodations. As always, we here at Abel HR will be keeping our eye on the legislation and will be available to help you update your policies accordingly to best accommodate your workers and ensure that you stay on the right side of the law!
