Congress Tackles Pregnancy Discrimination: The Pregnant Workers Fairness Act

An important bipartisan bill addressing pregnancy discrimination in the workplace was introduced to the United States House of Representatives on May 14, 2019, signaling a potential shift in Congressional attitudes on this issue. While this was not the first-time legislation of this type was introduced in the House of Representatives, there is reason for optimism that changing views on workplace discrimination could lead to a different result this time. Notably, the bill has attracted bipartisan support. The bill lays the groundwork for a new law that would provide further workplace protections to women who become pregnant, give birth, or suffer from related medical conditions.

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The Pregnant Workers Fairness Act (PWFA),H.R. 2694, was first introduced in the United States House of Representatives in 2012 and has been re-introduced in Congress in each subsequent session. A parallel bill (S. 1101) was also introduced in the Senate, by Senator Bob Casey, in 2017. The Pregnancy Workers Fairness Act aims to eradicate discriminatory behavior toward pregnant women by ensuring that workplace accommodations are provided to employees whose ability to perform job functions is limited by pregnancy, childbirth, or a related medical condition. The Pregnancy Workers Fairness Act is sponsored by Representative Jerry Nadler who, after introducing the Bill this year, stated, “No woman should have to choose between a healthy pregnancy and a paycheck, especially when often a simple fix – a bottle of water during a shift, an extra bathroom break, a chair – will allow women to stay on the job and support their families throughout their pregnancy.”

If the Pregnancy Workers Fairness Act is enacted, it would conform Federal anti-discrimination law in this area to the anti-discrimination laws and policies maintained by 25 states, including New Jersey. The PWFA would:

  • Require employers to make reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions of both employees and job applicants, unless the employer can unequivocally demonstrate that such accommodations would impose an undue hardship on a business operation;
  • Prohibit employers from requiring job applicants or employees to accept an accommodation they choose not to accept if the accommodation is unnecessary to enable the individual to perform the essential functions of their job;
  • Prohibit employers from denying employment opportunities to job applicants or employees because of a need for accommodations related to pregnancy;
  • Prohibit employers from requiring employees to take leave if another accommodation can be provided instead; and
  • Prohibit employers from taking adverse employment action against an individual based upon their request for or use of a reasonable accommodation related to their pregnancy, childbirth, or related medical condition.

If enacted, the Pregnancy Workers Fairness Act would add to and amend the federal Pregnancy Discrimination Act (PDA) of 1978. While this act did prohibit discrimination based upon pregnancy, childbirth, or related medical conditions, it did not secure a requirement for employers to provide reasonable accommodations to pregnant workers. Instead, the gap in this law gives employers the ability to argue that their discriminatory behavior is justified by business needs. The PWFA would combat such illusory justifications by requiring that employers engage in an interactive process to find a reasonable accommodation that would allow employees to continue performing the essential functions of their jobs.

The Pregnancy Workers Fairness Act is closely modeled after the Americans with Disabilities Act (ADA), which prohibits discrimination against individuals with disabilities. It requires that employers provide reasonable accommodations to employees and job applicants with disabilities, if and when doing so would achieve the goal of enabling the employees and job applicants to perform essential job functions and/or participate in the application process. The Pregnancy Workers Fairness Act attempts to provide employers with the same familiar guidelines provided to aid compliance with the ADA to make the expansion of rights to pregnant women easy and clear.

As noted above, the Pregnancy Workers Fairness Act is also similar to state laws in New Jersey regarding employment protections for women experiencing pregnancy, childbirth, or a related medical condition. In 2014, the New Jersey legislature amended the Law Against Discrimination (NJLAD) to specifically include pregnancy as a class of persons protected under the New Jersey Law Against Discrimination. This amendment prohibits employers from terminating or otherwise taking adverse action against an employee because of that employee’s pregnancy, childbirth, or related medical condition. The New Jersey Law Against Discrimination further requires employers to engage in an interactive process to determine whether a reasonable accommodation may be provided that would allow the employee or job applicant who was experiencing pregnancy, childbirth, or a related medical condition to continue or begin to perform the essential functions of their jobs.

Although the Pregnancy Workers Fairness Act has not yet been enacted into law, the Bill has garnered widespread support from both sides of the aisle. In 2017, a previous version of the Pregnancy Workers Fairness Act attracted 131 co-sponsors, including two Republican representatives. In 2019, the current version of the PWFA was introduced as a bipartisan bill, sponsored by two Democrat representatives and two Republican representatives. This bipartisan support suggests that the Bill may gain more traction than it had in previous session. It is too early to predict what will happen with the Bill, but its chances of passing in the House of Representatives look promising.

The Pregnant Workers Fairness Act has the potential to provide essential protections to employees and job applicants across the country. If enacted, it will help to prevent unlawful employment discrimination on the basis of pregnancy, child birth, and related medical conditions. Policies like the Pregnancy Workers Fairness Act will help to foster a fair, equal, and inclusive employment environment in the United States.