Federal and State Efforts to Increase Protections for Pregnant Women in the Workforce

Beginning with the Pregnancy Discrimination Act of 1978 (“PDA”), pregnant employees have had some degree of protection against discrimination in the workplace. Since 1978, different states have enacted several laws protecting pregnant workers, yet women continue to face challenges in the workplace because there is no federal law specifically requiring employers to provide accommodation for pregnancy. In fact, the Equal Employment Opportunity Commission–the federal agency in charge of enforcing employees’ rights in the workplace–has seen a significant rise in complaints of pregnancy discrimination in the past twenty years.

For this reason, activists are advocating for stronger federal laws protecting pregnant workers. The Pregnant Workers Fairness Act (PWFA), introduced in the Senate in May 2013 and supported by President Obama, seeks to bridge the gap between the PDA and the Americans with Disabilities Act of 1990. Currently in Congress, the PWFA, would require employers to provide accommodations for pregnant workers that are similar to the accommodations required for employees with disabilities under the ADA. However, advocates are not optimistic about the law’s ability to gather the support necessary to pass.

The Supreme Court recently stepped in to decide on the issue of accommodation for pregnant woman by taking the case Peggy Young v. United Parcel Service, instead of waiting on the EEOC to issue guidelines regarding the accommodations that pregnant women may request in the workplace. This case was filed by a delivery driver who alleged that her employer required her to take unpaid maternity leave rather than temporarily transferring her to a position that was less strenuous, as her doctors recommended. The plaintiff appealed the lower courts’ decisions in UPS’s favor, and petitioned for a writ of certiorari before the Supreme Court on the issue of “whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.'” The Supreme Court recently approved the plaintiff’s petition for certiorari on July 1, 2013.

While the debate on federal laws protecting pregnant employees continues, the City of New York further strengthened the rights of pregnant women in the workplace through the New York City Pregnant Workers Fairness Act (the “Act”). Originally passed in October, the Act went into effect as of January 30, 2014. The Act applies to all companies with four or more employees, and requires employers to provide reasonable accommodations to pregnant employees and workers suffering from medical conditions related to childbirth. The Act specifically states that a reasonable accommodation includes, but is not limited to “bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor.” The employer must provide these accommodations so long as the employee is still able to do the essential requirements of her job while accommodated, and so long as the accommodations do not create an undue hardship on the employer.

Additionally, employers are required to provide notice to employees of their rights under the PWFA; new employees must be given notice upon hiring, and existing employees must have been given notice by May 30, 2014. Given how new this law is, many employees may not know about the new protections to which they are entitled.

These legal reforms are responsive to the reality that a growing number of women work while pregnant, and many of those work into their third trimester.

If you believe that you have been discriminated against based on your pregnancy, please contact The Harman Firm, LLP.