States Go Beyond Federal Law to Protect Pregnant Workers

  • January 07, 2015
  • By Marsha Mercer
Pregnant womanAP

Many states are approving new protections for pregnant workers, requiring employers to give them more or longer bathroom breaks, rest periods, light duty, job transfers, leave time or other accommodations. (AP)

Decades after a federal law banned discrimination against pregnant women in the workplace, some states are providing additional protections to pregnant workers who want to stay on the job.

After Congress passed the Pregnancy Discrimination Act in 1978, many state legislators thought the problem had been solved. But as the number of women in the workforce has increased—and more of them have stayed on the job through their pregnancies—they have encountered obstacles not covered by the federal law.

Recent federal court rulings that have sided with employers who support a narrow interpretation of the law have added fuel to efforts in state capitals.

"Women should not have to choose between being a mother and having a job," outgoing Democratic Gov. Pat Quinn of Illinois said in August when he signed that state’s Pregnant Workers Fairness Act.

As of Jan. 1, employers in Illinois must provide pregnant workers who request them more or longer bathroom breaks, rest periods, light duty, job transfers, leave time or other accommodations, unless doing so creates an undue hardship for the employer.

"These are women who are healthy and want to continue working," said Democratic state Sen. Toi Hutchinson, a sponsor of the Illinois bill. "They’re not looking to get out of work. What they want is a temporary accommodation."

Eleven other states also have passed laws requiring employers to provide reasonable accommodations to pregnant workers. In 2014, laws took effect in Delaware, Minnesota, West Virginia and the District of Columbia. Since 2011, Alaska, Connecticut, Maryland and New Jersey also have approved laws.

California has had a pregnancy accommodation law since 1999, Louisiana since 1997 and Hawaii since 1990. Texas does not have a statewide law covering private employers, but since 2001 it has required county and municipal governments to make reasonable efforts to accommodate their pregnant employees. In addition, at least four cities have approved protections for pregnant workers in the public and private sectors: New York, Philadelphia, and Central Falls and Providence in Rhode Island.

Georgia, Massachusetts, New York, North Carolina, Pennsylvania, Rhode Island and Wisconsin are expected to debate statewide pregnancy protection bills this year.

"States have been a real model in embracing laws that require reasonable accommodation to pregnant workers," said Emily J. Martin, vice president of the National Women’s Law Center, a research and advocacy group.

Vital to Blue-Collar Workers

It’s illegal under the federal Pregnancy Discrimination Act to fire a worker, cut her pay or deny her health benefits because she is pregnant. But the law applies only to employers with 15 or more workers and is unclear on the extent to which employers must accommodate pregnant employees so they can continue to work. Pregnancy alone is not a disability under the federal Americans with Disabilities Act, although it does protect women with pregnancy-related impairments, such as difficulty bending or lifting heavy objects.

Courts have tended to rule narrowly on what employers must do to accommodate pregnant workers, and women’s rights advocates contend that many pregnant women are pushed out of their jobs.

Proponents say pregnancy accommodation laws are especially important to blue-collar and low-wage workers, who may need something simple—a stool at the cash register, additional bathroom breaks or light duty—to keep working.

When Lauri Huffman Wolfe of Saginaw, Michigan, became pregnant in November 2012, she asked for job modifications at the Speedway convenience store and gas station where she was a shift manager. Her doctor had advised her not to climb the 9-foot ladder to change the store sign, reach into the bottle bin or perform certain other tasks. Her employer attempted to put her on unpaid Family and Medical Leave, and she refused.

"I said, ‘I still have 22 weeks left in my pregnancy, and I need to work,’" she said. Speedway fired her for job abandonment. Michigan law does not expand pregnancy protections beyond federal law. She sued in federal court and has appealed a district court’s dismissal of her claim.

More than 250,000 women a year are denied their requests for pregnancy accommodation, according to a 2013 survey by Childbirth Connection, a project of the National Partnership for Women & Families. More than half the women surveyed said they did not request an accommodation because they feared retaliation.

Charges of pregnancy discrimination have risen substantially at the Equal Employment Opportunity Commission, which filed 5,342 charges in fiscal 2013, up from 3,900 in 1997. Under President Barack Obama, the EEOC has stepped up investigations and enforcement actions. In July, the commission issued guidance on pregnancy discrimination, but the guidance is not legally binding.

"Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices," EEOC Chairwoman Jacqueline Berrien said in statement last summer.

Bipartisan Support

In many states, new protections for pregnant workers have made allies of conservatives and liberals.

"As a conservative, pro-life Republican, I don’t want anyone choosing between a job and a child," said Delaware Del. Colin Bonini, who sponsored the bill that passed both houses of the legislature unanimously.

"From a fiscal-conservative standpoint, we don’t want people to lose their jobs and get on public assistance," he said. "We want women to work and to have successful pregnancies and successful families. This just made so much sense."

Bonini, who is running for governor in 2016, said he talked to some of the larger businesses in his state. "Nobody had any problem at all with this bill. Nothing from the Chamber (of Commerce). The only negative was a few far-fringe right, kooky emails."

In Illinois, however, some business groups remain concerned.

"We still think the law is going to create problems for employers," said Jay Shattuck, executive director of the Illinois Chamber of Commerce’s Employment Law Council. The council and several other business groups first opposed the Illinois measure, but later switched to a neutral stance because, according to Shattuck, opposing the state law was "like being against motherhood."

The Illinois law covers job applicants as well as employees, affects employers with one or more employees, and is vague on which conditions are covered, Shattuck said. He added that it may open the door to unpaid leave for those who don’t qualify under the federal Family and Medical Leave Act.

Additional protections for pregnant workers are less popular on Capitol Hill, where a new federal measure proposed by Democrats, the Pregnant Workers Fairness Act, has failed to garner any Republican support. GOP opponents contend the law would place an unfair burden on businesses.

Crucial Court Case

Meanwhile, the U.S. Supreme Court is currently considering Young v. United Parcel Service, Inc., a case that asks whether companies must provide pregnant workers lighter duty or other alternate assignments if they offer job modifications to other workers who are temporarily unable to do their regular jobs.

Peggy Young, an early morning UPS driver in Maryland, asked for a job modification when she became pregnant and her doctor advised her not to lift more than 20 pounds. UPS policy at the time did not provide light duty to pregnant workers, although it did allow employees who were injured on the job and drivers who lost their licenses to receive alternate assignments. UPS has since changed its policies to accommodate pregnant workers.

The court isn’t expected to issue its ruling until the summer, but the case has already spurred two states, Maryland and West Virginia, to pass their own measures. Legislators in both states said they were surprised at the limited scope of the federal law.

"The case showed there’s a hole" in coverage for pregnant workers, said West Virginia Del. Stephen Skinner, a Democrat. "So rather than wait around, we closed it in West Virginia."

The vote in the West Virginia House was unanimous; one Democratic state senator voted against it.

Misguided Efforts

State laws vary. Some are modeled on the proposed Pregnant Workers Fairness Act in Congress. In Illinois, the state American Civil Liberties Union’s Reproductive Rights Project drafted and lobbied for the legislation.

"The law says the employer can’t impose an accommodation a woman doesn’t want," said Lorie Chaiten, director of the Reproductive Rights Project. "They can’t say, `You need to go home.’"

The goal is to educate employers, she said, not take them to court. On that, employers agree.

"The last place you want to be as an employer is defending against pregnancy discrimination," said John Hyland, an employment law attorney in San Francisco. "You don’t want to be in court in California as an employer in a discrimination suit. You’re already presumed guilty."

Hyland said employers often face discrimination complaints as a result of misguided efforts to help or protect pregnant workers.

"I don’t think I’ve ever seen a pregnancy discrimination case rooted in an animus or dislike toward the pregnant woman," he said.

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