The Pregnant Workers Fairness Act, a bill that would require reasonable workplace accommodations to allow pregnant workers to safely stay on the job, is poised to become law after 10 years of advocacy. On Thursday the Senate voted overwhelmingly, 73-24, to add it as an amendment to the must-pass omnibus government spending package, and the House is set to take it up soon. If both pass the omnibus as expected, the PWFA will soon arrive on President Joe Biden’s desk.
Women make up half the workforce, and nearly 85 percent will become mothers during their working lives. And yet pregnant people, whether in high-paid roles at law firms in banks or in low-wage jobs in retail and fast food, face rampant discrimination at work. More than one-fifth of pregnant workers hold low-wage jobs, which are more likely to be physically taxing yet offer little control over the conditions. Complaints of pregnancy discrimination filed with the Equal Employment Opportunity Commission are concentrated in low-wage sectors, including retail, food services, and administrative services. Those three sectors consistently account for a full third of all complaints. “The passage of the Pregnant Workers Fairness Act is an incredible victory for the millions of pregnant workers and working moms who are the backbone of our economy yet treated like second-class citizens under the law,” said Dina Bakst, copresident of A Better Balance. “We’re proud to have been fighting alongside these workers for the past decade and working with them to secure this major milestone for gender, racial and economic justice across the country.”
The PWFA will require employers to offer all pregnant workers accommodations like light duty assignments, the ability to hold a water bottle on the clock, and unpaid leave for doctor’s appointments, unless they pose an undue hardship. Advocates have been working for over a decade to make it law, and it’s been introduced in every Congress since 2012. “Pregnancy should never be a barrier for women who want to stay in the workplace,” said Senator Bob Casey, one of the sponsors. “This legislation would provide commonsense protections for pregnant workers, like extra bathroom breaks or a stool for workers who stand, so they can continue working while not putting extra strain on their pregnancies.” Thirty states and five localities have now passed their own versions of the legislation, most in the decade since the PWFA was first introduced.
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There is existing federal legislation, the Pregnancy Discrimination Act, that is meant to enable workers to stay at their jobs when pregnant. But it entitles a pregnant worker to workplace accommodation if “similar” employees are given the same allowance, and for years courts decided that people who are hurt on the job, who often get accommodations, aren’t sufficiently similar to pregnant workers. Meanwhile, the Americans with Disabilities Act entitles an employee with a disability to an accommodation, but that only applies to pregnant workers with specific health issues, leaving those with healthy pregnancies uncovered. “Neither of them provide an explicit right to accommodation,” Sarah Brafman, national policy director at legal and advocacy organization A Better Balance, told me in 2020.
In 2015, the Supreme Court ruled in favor of Peggy Young, a UPS employee whose request to move to a light-duty assignment while pregnant was denied, by finally ruling that pregnant workers are similar to those injured on the job. But it was a narrow decision, and in its wake courts have created such a strict standard to prove that a pregnant person’s employer has given comparable accommodations to other employees that employers won in over two-thirds of the cases pregnant workers brought.
The PWFA will make employers’ obligations clear and help women like Kimberlie Michelle Durham, who lives in Alabama, one of the states that hasn’t passed its own version of a PWFA. When she got pregnant in 2015 she was working as an emergency medical technician, a job she was “really passionate about,” she told me in 2020. She planned to keep working all the way through her pregnancy, but then her doctor told her early on that she should avoid lifting anything over 50 pounds. Given that a stretcher with a body on it weighs well over 100 pounds, she asked her employer to switch her to a light duty assignment such as dispatch. She was told such work was only available to employees who got hurt on the job. Her employer pushed her to take unpaid leave and, eventually, she lost her job.
She hasn’t worked as an EMT since, instead working jobs in a factory and retail. “I never expected to lose my job over getting pregnant,” she said. “I really wish I had been able to just keep working.”
In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization this June, which overturned the national legal right to abortion enshrined in Roe v. Wade, Democrats struggled to muster a policy response. Attempts to enshrine the protections of Roe in federal law failed. Nor have they succeeded in delivering for women and families in other ways. Key agenda items such as paid family leave and robust funding for child care and elder care were initially included in the Build Back Better package of legislation, but all those provisions were stripped out from the Inflation Reduction Act that eventually passed. Last year’s expanded Child Tax Credit, which offered the payments to more low-income families, increased the amounts, and sent the payments out monthly, expired at the end of last year and hasn’t yet been revived.
There is much more to do. But in a country in which nearly 21 million women live in states that have outlawed abortion access, Democrats have taken one step toward ensuring that when people become pregnant, they won’t have to choose between their physical health and their financial well-being.
