Will Pregnant Workers Fairness Act Lighten Women's Load?
Bill would outlaw firing women over reasonable accommodation requests
When Shelly from Indiana became pregnant, she was working two jobs. During the day, she packed items to ship for a medical supply company; overnight, she stocked shelves for a major national retail chain. When her doctor advised that she not lift more than 20 pounds, the retailer refused to modify her responsibilities. She miscarried shortly thereafter. When she became pregnant again months later and communicated the same restrictions, she was fired.
Stories like Shelly's have inspired the National Women’s Law Center to champion the Pregnant Workers Fairness Act, a bill that would make it illegal for employers to fire women who are unable to perform all their job duties due to their pregnancy, or who seek feasible workplace accommodations for the same reason.
In May, U.S. Rep. Jerrold Nadler, D-N.Y., introduced the bill in the House. Last week, it reached the Senate floor, where it has stalled with a 3 percent chance of being passed. With more than 100 co-sponsors, it's clear the bill strikes a chord, but with the presidential election less than two months away, the bill's somewhat divisive nature may discourage any urgency in getting it passed.
Carrie Hoffman is a labor and employment lawyer for Gardere Wynne Sewell, who represents companies not individual workers. Hoffman believes the sensitive nature of the bill will have it being left in limbo until after the election—if ever.
"I don't think it's going to pass before the November election because nothing important ever does." Hoffman said. "But I don't feel like my clients are out there trying not to provide a safe work environment. If the job requires lifting, the questions that always arise are, 'How often are they really lifting 40 pounds? And, are they ever really doing that solo?' because most non-pregnant women aren't dead-lifting that weight without assistance either. So, the issue is, what's really required? And if they're eliminating that duty for an employee for whatever reason, be it pregnancy or disability, is that overburdening other workers?"
However, during a time when 53 percent of women are the primary income providers in their household, Cynthia Calvert, founder and CEO of Workforce 21C, a company that trains employers in preventing discrimination, believes that the passage of the bill could calm women's worries about being fired when their finances matter most.
"The bill would mean a lot to female breadwinners if it passed," Calvert said. "Right now, a lot of pregnant women are terminated because they need accommodations on the job like a stool to sit on or to take an extra bathroom break or to carry a water bottle and when their employers refuse to give it to them, they end up being fired. [The bill] may burden employers, but only slightly—and probably far less than having to train the replacement—because the pregnant woman's need for accommodation will last nine or fewer months. This bill would require that pregnant women get the same accommodations as workers with disabilities."
In 1990, the Americans with Disabilities Act outlawed discrimination against those with "a physical or mental impairment that substantially limits a major life activity." Twelve years earlier, Congress passed the Pregnancy Discrimination Act, which prevents discrimination “on the basis of pregnancy, childbirth and related medical conditions.” Neither law, however, protects pregnant women who continue to work, but need some adjustments to their workload.
John Hancock, a shareholder of leading law firm Butzel Long, has specialized in employment law for nearly 40 years. He recalls once having to fire a pregnant client on Christmas Day just a month before she was due to give birth to triplets.
"She exceeded the limit and was out beyond our leave period so there was nothing to protect her," Hancock said. "Our policy was that you had to be terminated once you exceeded the six months of disability and family medical leave. There was no exception for being pregnant; it wasn't a handicap so you didn't have to accommodate it. We had to be consistent and fair in our application of our policy since we had terminated male employees in similar situations—but we also wanted to be humane because she was a unique situation; she was immediately bed ridden after the second month."
(Hancock immediately asked the woman to reapply for her job. She did.)
Having experienced the "cruelty of the situation" firsthand, Hancock doubts adversaries of the bill will have valid arguments, but he isn't ruling out the possibility.
"I just don't see people coming out in opposition of helping pregnant women," he said. "But it's an election year and all kinds of things can happen. The Democrats are obviously going to support it and the Republicans are claiming a 'right to life' which you can't have without accommodating the consequences of that. The opposition may be that there's a difference between a handicap and an elective decision to give birth, that 'no one told you that you had to become pregnant,' but I don't think anyone's going to say that."
Though political pundits and anti-abortion groups alike are currently remaining silent on the pregnant workers bill, Hoffman doesn't advise that women who feel they're being discriminated against do the same while its fate is being determined.
"If women are getting resistance from their local job, they need to take the complaint past their supervisor," she said. "They're just looking at operation issues, and aren't equipped for that analysis. Take it to corporate human resources."