On May 9, 1914, President Woodrow Wilson signed a proclamation carving out the second Sunday in May as Mother’s Day. The proclamation called upon Americans to display Old Glory on public buildings and their homes in “a public expression of our love and reverence for the mothers of our country.” With all due respect to Mr. Wilson, this patriotic act had better come with brunch, chocolates, and/or flowers if the sons and daughters of our country want to make it to the third Sunday in May.
But even these more modern gestures of thanks and love for the women in our lives are woefully inadequate. Expectant mothers can still be legally fired from their jobs for following routine recommendations from their doctors. New mothers can still be let go for taking off from work immediately following childbirth or later to care for a sick child. The last four years have seen significant progress in these areas, but gaping holes in these safety nets remain.
In 2015, the Supreme Court added some baby teeth to the Pregnancy Discrimination Act (“PDA”) in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015). Four decades earlier, the PDA added new language to Title VII’s definitions section. “Title VII” refers to part of the 1964 Civil Rights Act which prohibited employment discrimination based on race, color, religion, sex, or national origin.
The PDA amended Title VII’s definition of “sex” to include “pregnancy, childbirth, or related medical conditions.” Another clause of the PDA says that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k).
This law was straightforward enough in the situation where an employer fires an employee because of her pregnancy or rejects a candidate after a stellar phone screen upon seeing a baby bump in person. These violations still occur with alarming frequency and patronizing excuses that the employers are doing so to protect the women and their babies from the dangers of the job.
Things get harder when the employer fires an employee for inquiring about ways to reduce these dangers, but keep their jobs. Doctors routinely advise pregnant women to avoid or reduce physically demanding tasks, including prolonged standing, long work hours, irregular work schedules, heavy lifting, excessive bending and kneeling, and high physical activity. These requirements are handed out alongside prenatal vitamins and the dreaded list of prohibited meats and cheeses regardless of a particular woman’s individual situation. But the law did not clearly protect women who requested these accommodations.
In Young v. UPS, the Court said that these women are protected so long as they can prove: (1) the employer accommodated others “similar in their ability or inability to work”; (2) the employer’s policies impose a significant burden on pregnant workers; and (3) the employer’s explanation for the different treatment is not sufficiently strong to justify the burden.” 135 S. Ct. at 1354. Women can have their cases heard by a jury only if they show that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. Id.
But the Court simultaneously ruled that pregnant workers are not automatically entitled to the same accommodations given to all other non-pregnant employees. This has led lower courts to apply the PDA less robustly than a full reading of Young would seem to require.
A recent review by A Better Balance—an advocacy group fighting to help working people care for themselves and their families—found that women are losing two-thirds of the cases filed in the wake of Young v. UPS. These cases show lower courts taking a very restrictive view of which non-pregnant employees are “similar in their ability or inability to work” as pregnant employees. If a woman cannot identify a non-pregnant employee with similar work restrictions to the ones her doctor is insisting on for her, courts are allowing employers to deny these accommodations and drive these women out of the workforce.
The difficulty is rooted in the PDA itself. Rather than simply requiring employers to provide reasonable accommodations to pregnant women, the PDA only requires employers to refrain from singling them out for discriminatory treatment. It is only because the Americans with Disabilities Act and Workers’ Compensation Acts exist that the PDA can possibly grant job accommodations at all. And it is only where women can point to employees with restrictions similar to their own—and who are benefiting from these other laws—that they are able to secure accommodations that make it possible to keep their jobs throughout their pregnancies and early motherhood.
Just as mothers deserve more than an American flag displayed on the front porch, women need more than the PDA and Young v. UPS provide.
Half the states protect pregnant workers with additional job accommodation requirements. But even in these states, significant issues remain. In North Carolina, for instance, the new rules were put in place by Governor Cooper’s 2016 executive order, which means they only protect state employees.
Since 2012, some in Congress have been trying to provide greater federal protections through The Pregnant Workers Fairness Act. If passed, this law would set up the same system for pregnant workers that presently exists for disabled employees all across the country—without the need for pregnant women to locate actual disabled employees with their same restrictions or to then debunk their employers’ explanations for the different treatment before they are entitled to job protections and accommodations.
Specifically, The Pregnant Workers Fairness Act would:
- Clarify that employers must make reasonable accommodations for workers affected by a known limitation related to pregnancy, childbirth, or related medical conditions.
- Require an interactive process between employers and pregnant workers to determine appropriate reasonable accommodations, similar to the Americans with Disabilities Act.
- Provide an exemption for businesses if an accommodation imposes an undue hardship on an employer.
- Protect pregnant workers from retaliation, coercion, intimidation, threats or interference if they request or use an accommodation.
- Apply to employers with 15 or more employees and provide protections for both job applicants and employees.
While even these protections would fall short of protecting women in small businesses or addressing the need for paid leave, they would be a big step in the right direction and are deserving of bipartisan support.
Instead of a Star-Spangled salute, or even brunch, flowers, and chocolates this year, we owe our expectant mothers job security and the ability to continue providing for their families.
Reach out for a consultation today.