The Pregnancy Discrimination Act (PDA) was passed more than 40 years ago to protect the jobs and health of pregnant workers across the United States. However, the PDA’s vague language made it difficult for many women to secure necessary workplace accommodations or to win pregnancy discrimination claims against their employers.
That may soon change in the coming weeks. The Senate is scheduled to review the Pregnant Workers Fairness Act (PWFA), a bill that would strengthen federal protections afforded to pregnant employees. The House passed the bill last September with 329 votes.
Problems with the Pregnancy Discrimination Act
Under the PDA, the burden of proof resides with the pregnant employee to show they were treated differentially to a non-pregnant employee performing similar work. If the pregnant employee requests an accommodation, and that request is denied, the pregnant employee must demonstrate that they were not provided equal treatment/benefits as other workers who previously suffered a similar inability to work.
It can be very difficult for pregnant employees to find other workers who have been in their same situation or to prove that they were given “lesser benefits” or less favorable treatment than non-pregnant employees. There has been much litigation debating these issues.
What Would Change if the PWFA Passes?
If the PWFA passes the Senate, it would clarify many of the PDA’s ambiguities and offer pregnant employees greater protection. The PWFA contains the following key updates/clarifications:
- Employers would be required to negotiate accommodations with pregnant employees who request them;
- The employer/employee accommodation negotiation process would be standardized;
- Certain terms would be clarified to create a uniform interpretation across workplaces;
- Known limiting conditions that commonly arise from pregnancy, birth and related medical conditions are expressly listed as qualifying conditions for accommodation;
- Employers cannot deny pregnant workers employment opportunities or retaliation against them for requesting an accommodation;
- Employers cannot force pregnant employees to take a leave of absence if an accommodation is available.
This act would apply to all public sector employees and private sector employees that have 15 or more employees. Employers would not be required to make the requested accommodations if they put undue hardship on the business.
California-Specific Protections for Pregnant Employees
Such changes in federal law would mirror those already provided for under California state laws California’s Pregnancy Disability Leave Law (PDL), the California Fair Employment & Housing Act (FEHA), and the California Family Rights Act (CFRA).
Under California’s PDL, pregnant employees are guaranteed up to four months of job-protected leave until they are no longer disabled by their pregnancy. At the end of that leave, employers must reinstate pregnant employees to their original role within the company (or to a comparable role). The employee’s health care provider determines how much disability leave they will require given their level of disability and overall health.
Pregnant employees who need more than four months of leave because of their disability relating to pregnancy, childbirth, etc. may seek additional medical leave time under the FEHA. The FEHA applies to employers with five or more employees. Employers must provide accommodations (for pregnancy, childbirth, breastfeeding, and related medical conditions) to qualifying employees if the requests are reasonable and recommended by the worker’s health care provider and do not cause an “undue hardship” on the employer. If employers cannot provide that specific accommodation, they must engage in an interactive process with pregnant employees to explore alternatives.
Under the CFRA, employees who are new parents are eligible to take up to 12 weeks of job-protected leave within the baby’s first year to bond with their newborn baby. Both parents are eligible for up to 12 weeks of leave from their respective employers (or employer if they both work for the same employer), which means that the nonbirth parent can also have bonding time with their newborn baby. While on leave, employees continue receiving their standard employer-supplied health benefits and can apply for partial wage replacement benefits under California Paid Family Leave (PFL).
Could 2021 See a Big Step Forward for Pregnant Employees?
Approximately 3,000 women filed pregnancy discrimination claims each year between 2015-2019. It is estimated that these statistics do not even capture the full extent of pregnancy discrimination across the United States, as many incidents go unreported. From these numbers, it is clear that many pregnant women do not feel protected under existing legislation.
If the Senate passes the PWFA, it will be a big step forward for pregnant employees across the country who are looking to balance their growing family with their chosen careers. The clarifications under this bill could help make it easier for pregnant workers to secure the accommodations that they need for their and their baby’s health.
