Pregnant woman at work

Congress Reconsiders Pregnancy Discrimination

By Douglas Lipsky

The U.S. Congress is once again considering legislation that would provide stronger legal protections to women who have been subjected to pregnancy discrimination. The stated purpose of the bill, the Pregnant Workers Fairness Act (PWFA), is to eliminate discrimination and ensure reasonable accommodations for women whose ability to perform their job-related duties is limited by pregnancy, childbirth, or a related medical condition.

While pregnant women in New York also have legal protections under city and state laws, it takes an experienced employment lawyer to protect your rights. Let’s take a look at the protections that would be provided under the PWFA.

New Workplace Protections Against Pregnancy Discrimination

The PWFA was first introduced in the House of Representatives in 2012 and has been repeatedly reintroduced since then. Though the legislation previously lacked bipartisan support, the COVID-19 pandemic has created a sense of urgency on both sides of the aisle as millions of women are unemployed, without legal protections.

In short, the PWFA clarifies the Pregnancy Discrimination Act of 1978 (PDA), which makes it illegal for employers to consider pregnancy in employment decisions (e.g. hiring, firing, promotions). However, the PDA failed to define and clarify key terms, particularly regarding accommodations for pregnant women.

Under the PDA, pregnant women or those affected by childbirth-related conditions are treated the same as workers who are similar in their ability or inability to work. The vagueness of this provision has resulted in disputes between employers and employees as to what “similar” means and the types of accommodations that should be provided. 

Moreover, the onus has been on pregnant women to prove that they are being treated less favorably than other disabled workers, and the courts have sided with employers in a majority of pregnancy discrimination cases filed in recent years. At the same time, legal recourse is not an affordable option for many pregnant women and litigation could, in fact, actually outlast a pregnancy.

The PWFA addresses the ambiguity of the PDA by requiring employers to engage in a formalized negotiation process with pregnant employees for any accommodations, including water breaks, restroom breaks, modifications to work schedules and reassignments for health reasons. The new legislation also clarifies certain terms, such as limitations stemming from pregnancy, childbirth, and related medical conditions.

While the PWFA passed the House with an overwhelming majority last September, the legislation did not advance to the Senate and had to be reintroduced; lawmakers are optimistic that the bill will soon become law.

The Takeaway

Despite the protections of the PDA and city and state law, eliminating pregnancy discrimination continues to be an uphill battle. The best way for pregnant women to protect their rights is to consult with an experienced pregnancy discrimination attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.