    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                          LONG OVER DUE: EXPLORING THE
                               PREGNANT WORKERS'
                            FAIRNESS ACT (H.R. 2694)

    =======================================================================

                                    HEARING

                                   BEFORE THE

                SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES

                             COMMITTEE ON EDUCATION
                                   AND LABOR
                         U.S. HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                HEARING HELD IN WASHINGTON, DC, OCTOBER 22, 2019

                                   __________

                               Serial No. 116-44

                                   __________

          Printed for the use of the Committee on Education and Labor

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

               Available via the World Wide Web: www.govinfo.gov
                                       or
                  Committee address: https://edlabor.house.gov

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    39-487 PDF                 WASHINGTON : 2021

    -----------------------------------------------------------------------------------

                        COMMITTEE ON EDUCATION AND LABOR

                 ROBERT C. ``BOBBY'' Scott, Virginia, Chairman

    Susan A. Davis, California           Virginia Foxx, North Carolina,
    Raul M. Grijalva, Arizona            Ranking Member
    Joe Courtney, Connecticut            David P. Roe, Tennessee
    Marcia L. Fudge, Ohio                Glenn Thompson, Pennsylvania
    Gregorio Kilili Camacho Sablan,      Tim Walberg, Michigan
      Northern Mariana Islands           Brett Guthrie, Kentucky
    Frederica S. Wilson, Florida         Bradley Byrne, Alabama
    Suzanne Bonamici, Oregon             Glenn Grothman, Wisconsin
    Mark Takano, California              Elise M. Stefanik, New York
    Alma S. Adams, North Carolina        Rick W. Allen, Georgia
    Mark DeSaulnier, California          Lloyd Smucker, Pennsylvania
    Donald Norcross, New Jersey          Jim Banks, Indiana
    Pramila Jayapal, Washington          Mark Walker, North Carolina
    Joseph D. Morelle, New York          James Comer, Kentucky
    Susan Wild, Pennsylvania             Ben Cline, Virginia
    Josh Harder, California              Russ Fulcher, Idaho
    Lucy McBath, Georgia                 Van Taylor, Texas
    Kim Schrier, Washington              Steve Watkins, Kansas
    Lauren Underwood, Illinois           Ron Wright, Texas
    Jahana Hayes, Connecticut            Daniel Meuser, Pennsylvania
    Donna E. Shalala, Florida            Dusty Johnson, South Dakota
    Andy Levin, Michigan*                Fred Keller, Pennsylvania
    Ilhan Omar, Minnesota                Gregory F. Murphy, North Carolina
    David J. Trone, Maryland
    Haley M. Stevens, Michigan
    Susie Lee, Nevada
    Lori Trahan, Massachusetts
    Joaquin Castro, Texas
    * Vice-Chair

                       Veronique Pluviose, Staff Director
                     Brandon Renz, Minority Staff Director

                                     ------

                SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES

                      SUZANNE Bonamici, OREGON, Chairwoman

    Raul M. Grijalva, Arizona            James Comer, Kentucky,
    Marcia L. Fudge, Ohio                  Ranking Member
    Kim Schrier, Washington              Glenn ``GT'' Thompson,
    Jahana Hayes, Connecticut                Pennsylvania
    David Trone, Maryland                Elise M. Stefanik, New York
    Susie Lee, Nevada                    Dusty Johnson, South Dakota

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on October 22, 2019.................................     1

    Statement of Members:
        Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
          Rights and Human Services..................................     1
            Prepared statement of....................................     4
        Comer, Hon. James, Ranking Member, Subcommittee on Civil
          Rights and Human Services..................................     5
            Prepared statement of....................................     6

    Statement of Witnesses:
        Bakst, Ms. Dina, J.D., Co-Founder and Co-President, A Better
          Balance: The Work and Family Legal Center..................    40
            Prepared statement of....................................    43
        Durham, Ms. Kimberlie M.,....................................    14
            Prepared statement of....................................    17
        Nadler, Hon. Jerrold, a Representative in Congress from the
          State of New York..........................................     7
            Prepared statement of....................................     9
        McLaughlin, Ms. Ellen, Partner, Seyfarth Shaw LLP............    28
            Prepared statement of....................................    31
        Wilbur, Ms. Iris, Vice President of Government Affairs and
          Public Policy, Louisville, Inc., The Metro Chamber of
          Commerce...................................................    23
            Prepared statement of....................................    26

    Additional Submissions:
        Chairwoman Bonamici:.........................................
            Prepared statement from International Brotherhood of
              Teamsters..............................................    97
            Article: Miscarrying at Work: The Physical Toll of
              Pregnancy Discrimination...............................   100
            Letter dated December 4, 2018............................   110
            NELA Letter dated October 17, 2019.......................   119
            Prepared statement from 1,000 Days.......................   138
            Letter dated May 14, 2019 from Business Groups...........   140
            Prepared statement from Health Care Groups...............   142
        Fudge, Hon. Marcia L., a Representative in Congress from the
          State of Ohio:.............................................
            Letter dated October 18, 2019 from the National
              Employment Lawyers Association (NELA)..................   143
            Prepared statement from the American Civil Liberties
              Union (ACLU)...........................................   145
            Letter dated October 18, 2019 from The Leadership
              Conference on Civil and Human Rights...................   158
        Hayes, Hon. Jahana, a Representative in Congress from the
          State of Connecticut:......................................
            Prepared statement from the National Women's Law Center..   161
            Letter dated October 21, 2019 from Warren, Hon. Elizabeth   175
        Lee, Hon. Susie, a Representative in Congress from the State
          of Nevada:.................................................
            Letter dated October 22, 2019 from National Partnership
              for Women and Families.................................   177
        Schrier, Hon. Kim, a Representative in Congress from the
          State of Washington:.......................................
            Prepared statement from the National WIC Association.....   179
            Prepared statement from Equal Rights Advocates...........   181
        Scott, Hon. Robert C. ``Bobby'', a Representative in Congress
          from the State of Virginia:................................
            Prepared statement from the March of Dimes...............   183
        Questions submitted for the record by:
            Chairwoman Banamici

            Ms. Fudge................................................   188
            Mr. Scott................................................   187
        Responses submitted for the record by:
            Ms. Bakst................................................   191
            Ms. Wilbur...............................................   206

                          LONG OVER DUE: EXPLORING THE
                               PREGNANT WORKERS'
                            FAIRNESS ACT (H.R. 2694)

                                  ----------

                           Tuesday, October 22, 2019

                           House of Representatives,

                Subcommittee on Civil Rights and Human Services,

                       Committee on Education and Labor,

                                 Washington, DC

                                  ----------

        The subcommittees met, pursuant to call, at 10:15 a.m., in
    Room 2175, Rayburn House Office Building. Hon. Suzanne Bonamici
    (Chairwoman of the subcommittee) presiding.
        Present: Representatives Bonamici, Schrier, Hayes, Lee,
    Comer, Thompson, Stefanik, and Johnson.
        Also Present: Representatives Scott, McBath, Underwood,
    Foxx and Cohen.
        Staff Present: Tylease Alli, Chief Clerk; Phoebe Ball,
    Disability Counsel; Ilana Brunner, General Counsel - Health and
    Labor; Eli Hovland, Staff Assistant; Eunice Ikene, Labor Policy
    Advisor; Stephanie Lalle, Deputy Communications Director;
    Richard Miller, Director of Labor Policy; Max Moore, Office
    Aid; Udochi Onwubiko, Labor Policy Counsel; Veronique Pluviose,
    Staff Director; Carolyn Ronis, Civil Rights Counsel; Banyon
    Vassar, Deputy Director of Information Technology; Courtney
    Butcher, Minority Director of Member Services and Coalitions;
    Cate Dillon, Minority Staff Assistant; Rob Green, Minority
    Director of Workforce Policy; Jeanne Kuehl, Minority
    Legislative Assistant; John Martin, Minority Workforce Policy
    Counsel; Hannah Matesic, Minority Director of Operations; Audra
    McGeorge, Minority Communications Director; Carlton Norwood,
    Minority Press Secretary; Brandon Renz, Minority Staff
    Director; and Ben Ridder, Minority Professional Staff Member.
        Chairwoman Bonamici. The Committee on Education and Labor
    will come to order. Welcome, everyone. I note that a quorum is
    present. The Committee is meeting today in a legislative
    hearing to hear testimony on H.R. 2694, the Pregnant Workers
    Fairness Act.
        I know for the subcommittee that Ms. McBath of Georgia, Ms.
    Underwood of Illinois and Mr. Cohen of Tennessee are permitted
    to participate in today's hearing. Members who sit on the
    Subcommittee and are present shall have first priority to ask
    questions, followed by Members who sit on the Full Committee
    and are present and only after all Committee Members who are
    present have gone, shall Members who are not on the Committee
    on Education and Labor ask questions.
        Pursuant to Committee Rule 7(c), opening statements are
    limited to the Chair and the Ranking Members. This allows us to
    hear from our witnesses sooner and provides all Members with
    adequate time to ask questions.
        I recognize myself now for the purpose of making an opening
    statement.
        As a mom and a policymaker, I know how important it is to
    protect the economic security of pregnant women in working
    families. Unfortunately, our current laws are inadequate, and
    many pregnant workers are placed on unpaid leave or forced out
    of work when they only need a simple accommodation to stay on
    the job during their pregnancy.
        Today, we are holding a legislative hearing on H.R. 2694,
    the Pregnant Workers Fairness Act.
        This bill takes an important step to guarantee that
    pregnant women will get reasonable accommodations that will
    allow them to stay in the workplace. I would like to thank our
    witnesses for being here to provide important insight on the
    discrimination and hardship pregnant women face when they are
    denied reasonable accommodations in the workplace.
        I also want to thank judiciary committee Chairman Jerrold
    Nadler, the lead sponsor of this bill for taking time to join
    us this morning.
        According to A Better Balance, 75 percent of women will be
    pregnant while employed at some time in their life. Women are
    increasingly either the primary or co-breadwinners of
    households and as a result, more pregnant women work later into
    their pregnancies.
        In fact, research suggests that more than 80 percent of
    first-time mothers work until their final month of pregnancy; I
    know I did.
        Pregnant workers may need reasonable accommodations to
    protect the health of both mother and baby. Reasonable
    accommodations can range from providing seating, water, and
    light duty to excusing pregnant workers from tasks involving
    dangerous substances.
        They do not need to be, nor are they typically complicated
    or costly, but when pregnant workers do not have access to the
    reasonable workplace accommodations they need, they are often
    forced to choose between their financial security and their
    pregnancy.
        The consequences can be devastating to their health and
    security. It's also important to note that women of color are
    overrepresented in low-wage, physically demanding jobs and are
    therefore disproportionately affected by a lack of access to
    reasonable accommodations.
        In 1978, Congress first recognized the responsibility to
    provide pregnant women with fair and equal treatment in the
    workplace when they passed the Pregnancy Discrimination Act.
    The law clarified the discrimination against pregnant workers
    is discrimination on the basis of sex under Title VII of the
    Civil Rights act of 1964.
        The law also requires businesses to treat pregnant workers
    as they would other physically impaired workers; yet, 41 years
    after the passage of the Pregnancy Discrimination Act, Federal
    law still falls short of guaranteeing that all pregnant workers
    have reasonable workplace accommodations. Under current law, a
    pregnant worker must show that her employer accommodated
    similarly-situated coworkers, a burdensome, and often
    impossible, standard to meet.
        Similarly, the Americans with Disabilities Act covers
    pregnancy related impairments but leaves women with less
    serious, pregnancy-related impairments or who simply need
    accommodations without legal recourse. Even the Supreme Court's
    decision in Young v. UPS, which affirmed pregnant workers'
    rights to reasonable accommodations under the Pregnancy
    Discrimination Act, has not provided workers or businesses the
    clarity or legal certainty they need.
        In fact, since Young v. UPS, approximately 70 percent of
    courts have denied reasonable accommodations for pregnant
    workers. Pregnant women today continue to suffer workplace
    discrimination at an alarming rate. According to a 2012 survey,
    more than 60 percent of workers have seen pregnancy
    discrimination on the job.
        For these women, being pregnant can mean losing a job,
    being denied a promotion or not being hired in the first place.
    Guaranteeing that pregnant workers have reasonable
    accommodation in the workplace is a crucial step to eradicating
    pregnancy discrimination, and without federal protections for
    pregnant workers, several states from across the geographic and
    political spectrum have taken action to fill the void.
        My home state of Oregon is one of those helping to lead the
    way. Earlier this year, the state legislature passed a
    bipartisan bill to require employers to provide reasonable
    accommodations to applicants who are employees with known
    limitations related to pregnancy, childbirth, or related
    medical condition unless it would impose undue hardship. And as
    of this month, 27 states and the District of Columbia and four
    cities have required employers with more than 15 employees to
    provide accommodations, bringing certainty to business,
    preventing costly disputes and importantly, keeping pregnant
    women safely on the job.
        But without a federal benchmark, workers and employers are
    left with a patchwork of laws that provide strong protections
    for some and no protections for others. We need to make sure
    that all pregnant workers, regardless of where they live, can
    access the protections they need to stay in the workplace and
    that's why we are discussing the Pregnant Workers Fairness Act
    today.
        This bipartisan bill would establish a pregnant worker's
    right to reasonable accommodations and guarantee that pregnant
    workers can seek those accommodations without facing
    discrimination and retaliation in the workplace. The Pregnant
    Workers Fairness Act is an opportunity for Congress to finally
    fulfill the promise of the Pregnancy Discrimination Act and
    take an important step towards workplace gender equity, healthy
    pregnancies and the economic security of all pregnant and
    parenting women and their families. I welcome this opportunity
    to work with my Republican colleagues to move this bill forward
    in a bipartisan manner. I request unanimous consent to enter
    two letters into the record: one from the International
    Brotherhood of Teamsters and more than 100 stakeholders'
    groups--another one from more than 100 stakeholder groups, both
    in support of the Pregnant Workers' Fairness Act without
    objections to order.
        Thank you, and I now yield to the Ranking Member, Mr.
    Comer, for an opening statement.
        [The statement of Chairwoman Bonamici follows:]

     Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee
                       on Civil Rights and Human Services

        As a mom and a policy maker, I know how important it is to protect
    the economic security of pregnant women and working families.
    Unfortunately, our current laws are inadequate, and many pregnant
    workers are placed on unpaid leave or forced out of work when they only
    need a simple accommodation to stay on the job during their pregnancy.
        Today, we are holding a legislative hearing on H.R. 2694, the
    Pregnant Workers Fairness Act. This bill takes an important step to
    guarantee that pregnant women will get reasonable accommodations that
    will allow them to stay in the workplace.
        I would like to thank our witnesses for being here to provide
    important insight on the discrimination and hardship pregnant women
    face when they are denied reasonable accommodations in the workplace. I
    also want to thank Judiciary Committee Chairman Nadler, the lead
    sponsor of this bill, for taking time to join us this morning.
        According to A Better Balance, seventy-five percent of women will
    be pregnant while employed at some time in their life. Women are
    increasingly either the primary or co- breadwinners of households, and
    as a result more pregnant workers work later into their pregnancies. In
    fact, research suggests that more than 80 percent of first- time
    mothers work until their final month of pregnancy.
        Pregnant workers may need reasonable accommodations to protect the
    health of both mother and baby. Reasonable accommodations can range
    from providing seating, water, and light duty, to excusing pregnant
    workers from tasks involving dangerous substances. They do not need to
    be, nor are they typically complicated or costly.
        But when pregnant workers do not have access to the reasonable
    workplace accommodations they need, they are forced to choose between
    their financial security and their pregnancy. The consequences can be
    devastating to their health and their security. It is also important to
    note that women of color are overrepresented in low-wage, physically
    demanding jobs and are therefore disproportionately affected by a lack
    of access to reasonable accommodations.
        In 1978, Congress first recognized the responsibility to provide
    pregnant women with fair and equal treatment in the workplace when they
    passed the Pregnancy Discrimination Act. The law clarified that
    discrimination against pregnant workers is discrimination on the basis
    of sex under Title VII of the Civil Rights Act of 1964. The law also
    requires businesses to treat pregnant workers as they would other
    physically impaired workers.
        Yet, 41 years after the passage of the Pregnancy Discrimination
    Act, federal law still falls short of guaranteeing that all pregnant
    workers have reasonable workplace accommodations. Under current law, a
    pregnant worker must show that her employer accommodated ``similarly
    situated'' co-workers--a burdensome and often impossible standard to
    meet. Similarly, the Americans With Disabilities Act covers pregnancy-
    related impairments but leaves women with less serious pregnancy-
    related impairments, or who need accommodations, without legal
    recourse.
        Even the Supreme Court's decision in Young vs. UPS, which affirmed
    pregnant workers' right to reasonable accommodations under the
    Pregnancy Discrimination Act, has not provided workers or businesses
    the clarity or legal certainty they need. In fact, since the Young v.
    UPS decision, approximately 70 percent of courts have denied reasonable
    accommodations for pregnant workers.
        Pregnant women today continue to suffer workplace discrimination at
    an alarming rate. According to a 2012 survey, more than 60 percent of
    Americans have seen pregnancy discrimination on the job. For these
    women, being pregnant can mean losing their job, being denied a
    promotion, or not being hired in the first place. Guaranteeing that
    pregnant workers have a reasonable accommodation in the workplace is a
    crucial step in eradicating pregnancy discrimination.
        Without strong federal protections for pregnant workers, several
    states from across the geographic and political spectrum have taken
    action to fill the void.
        My home state of Oregon is one of those helping to lead the way.
    Earlier this year, the state legislature passed a bipartisan bill to
    require employers to provide reasonable accommodations to applicants or
    employees with known limitations related to pregnancy, childbirth, or a
    related medical condition unless it would impose an undue hardship.
        And as of this month, 27 states, the District of Columbia and four
    cities require employers with more than 15 employees to provide
    accommodations, bringing certainty to businesses, preventing costly
    disputes, and, importantly, keeping pregnant women safely on the job.
        But without a federal benchmark, workers and employers are left
    with a patchwork of laws that provides strong protections for some, and
    no protections for others. We need to make sure that all pregnant
    workers, regardless of where they live, can access the protections they
    need to stay in the workplace.
        That is why we are discussing the Pregnant Workers Fairness Act
    today. This bipartisan bill would establish a pregnant worker's right
    to reasonable accommodations, and guarantee that pregnant workers can
    seek those accommodations without facing discrimination or retaliation
    in the workplace.
        The Pregnant Workers Fairness Act is an opportunity for Congress to
    finally fulfill the promise of the Pregnancy Discrimination Act and
    take an important step toward workplace gender equity, healthy
    pregnancies, and the economic security of all pregnant and parenting
    women and their families. I welcome the opportunity to work with my
    Republican colleagues to move this bill forward in a bipartisan manner.
        I request unanimous consent to enter two letters into the record
    from the International Brotherhood of Teamsters and more than 100
    stakeholder groups in support of the Pregnant Workers Fairness Act.
        Thank you and I now yield to the Ranking Member, Mr. Comer, for an
    opening statement.
                                     ______

        Mr. Comer. Thank you, Madam Chairman, and I want to welcome
    all the witnesses who are here today, including my friend and
    fellow Kentuckian, Iris Wilbur.
        Committee Republicans have long been committed to policies
    and laws that empower all Americans to achieve success.
    Discrimination of any type should not be tolerated, and no one
    should ever be denied an opportunity because of unlawful
    discrimination. That is why there are important protections
    under Federal law to prevent workplace discrimination,
    including Federal laws that protect pregnant workers. The
    Americans with Disabilities Act, or ADA, provides protections
    to pregnant workers. The Pregnancy Discrimination Act outlaws
    pregnancy discrimination. A 2015 Supreme Court ruling affirmed
    that employers must treat pregnant workers equally and fairly,
    and states, including my state of Kentucky, have passed laws
    protecting pregnant workers.
        The Equal Employment Opportunity Commission, the primary
    federal agency that enforces civil rights laws against
    workplace discrimination, has stated that ADA requires
    employers to accommodate pregnancy-related limitations.
    Republicans in Congress have long supported meaningful and
    clearly-defined protections for pregnant workers that ensure
    they are not being unlawfully discriminated against as it
    relates to pregnancy, childbirth or related medical conditions.
    We should promote policies in Washington that encourage a
    strong family, allow families to flourish and protect life at
    all stages.
        The purpose of America's nondiscrimination laws and the
    agencies enforcing them is to give all Americans equal
    opportunities to succeed. That being said, overzealous
    government intervention often causes more harm than good. While
    we are committed to preventing and combating unlawful
    discrimination, we should carefully examine legislation that
    could cause confusion and prove difficult to implement.
        We should prioritize discrimination policies that are
    responsible and effective so our nation's workers and job
    creators can flourish, and America's workplaces can be free
    from discrimination.
        The committee should review and evaluate the federal laws
    already on the books that provide protection for pregnant
    workers as well as the specific provisions of H.R. 2694 before
    advancing legislation that could have unexpected consequences.
    The hearing today is a starting point in this regard.
        Bottom line, pregnant workers should be protected and
    reasonably accommodated in the workplace. So I look forward to
    hearing from our witnesses today as we examine the Pregnant
    Workers Fairness Act. Madam Chair, I yield back.
        [The statement of Mr. Comer follows:]

    Prepared Statement of Hon. James Comer, Ranking Member, Subcommittee on
                        Civil Rights and Human Services

        I want to thank all the witnesses, including my fellow Kentuckian,
    for being here today.
        Committee Republicans have long been committed to policies and laws
    that empower all Americans to achieve success.
        Discrimination of any type should not be tolerated, and no one
    should ever be denied an opportunity because of unlawful
    discrimination. That is why there are important protections under
    federal law to prevent workplace discrimination, including federal laws
    that protect pregnant workers. The Americans with Disabilities Act
    (ADA) provides protections to pregnant workers; the Pregnancy
    Discrimination Act outlaws pregnancy discrimination; a 2015 Supreme
    Court ruling affirmed that employers must treat pregnant workers
    equally and fairly; and states, including my state of Kentucky, have
    passed laws protecting pregnant workers. The Equal Employment
    Opportunity Commission, the primary federal agency that enforces civil
    rights laws against workplace discrimination, has stated that the ADA
    requires employers to accommodate pregnancy-related limitations.
        Republicans in Congress have long supported meaningful and clearly-
    defined protections for pregnant workers that ensure they are not being
    unlawfully discriminated against as it relates to pregnancy,
    childbirth, or related medical conditions. We should promote policies
    in Washington that encourage a strong family, allow families to
    flourish, and protect life at all stages.
        The purpose of America's nondiscrimination laws, and the agencies
    enforcing them, is to give all Americans equal opportunities to
    succeed. That being said, overzealous government intervention often
    causes more harm than good. While we are committed to preventing and
    combating unlawful discrimination, we should carefully examine
    legislation that could cause confusion and prove difficult to
    implement.
        We should prioritize discrimination policies that are responsible
    and effective so our nation's workers and job creators can flourish,
    and America's workplaces can be free from discrimination.
        The Committee should review and evaluate the federal laws already
    on the books that provide protections for pregnant workers, as well as
    the specific provisions in H.R. 2694, before advancing legislation that
    could have unexpected consequences. The hearing today is a starting
    point in this regard.
        Bottom line, pregnant workers should be protected and reasonably
    accommodated in the workplace.
        So, I look forward to hearing from our witnesses today as we
    examine the Pregnant Workers Fairness Act.
                                     ______

        Chairwoman Bonamici. Thank you. Without objection, all
    other Members who wish to insert written statements into the
    record may do so by submitting them to the Committee
    electronically in Microsoft Word format by 5:00 pm on November
    4th, 2019.
        I will now introduce our witness for the first panel.
    Congressman Jerrold Nadler represents New York's 10th
    Congressional district. Congressman Nadler is the Chairman of
    the House Committee on the Judiciary. For more than 30 years,
    Chairman Nadler has been on the frontlines in the fight for
    civil rights, and he has been a relentless defender of our
    country's fundamental promise of equality for all.
        Congressman Nadler has played a significant role in the
    fight for women's rights, serving as a central figure in the
    reauthorization of the Violence Against Women Act, and he is
    the author of the Pregnant Workers Fairness Act.
        We appreciate the witness for being here today and look
    forward to your testimony. Let me remind the witness that we
    have read your written statement and it will appear in full in
    the hearing record, pursuant to Committee Rule 7(d) and
    committee asks to limit your oral presentation to a five minute
    summary of your written statement.
        Before you begin your testimony, please remember to press
    the button on the microphone in front of you. We know you know
    this. And as you begin to speak, the light in front of you will
    turn green and after four minutes it will be yellow to signal
    you have one minute remaining and when it turns red, your five
    minutes have expired and we ask that you wrap up. And I now
    recognize Chairman Jerrold Nadler for your testimony.

    TESTIMONY OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF NEW YORK

        Mr. Nadler. Thank you, Chair Bonamici and Ranking Member
    Comer for holding this hearing today and inviting me to testify
    about my bill, the Pregnant Workers Fairness Act. This hearing
    is, as its title indicates, long overdue. Pregnancy
    discrimination is not a new issue. For as long as women have
    been in the workforce, they have been fired, passed over for
    promotion or hiring, had their work cut back or forced to leave
    when they became pregnant or started the family.
        In the last six months, we have seen multiple media reports
    about workers forced off the job while pregnant because they
    needed a simple fix to keep working.
        Pregnancy is not a disability. Sometimes, due to
    complications or even in healthy pregnancies, workers need a
    reasonable accommodation from their employer, such as a stool,
    an extra bathroom break, limiting contact with certain
    chemicals or reducing the amount of lifting they do.
        These accommodations are short in duration and typically
    cost very little to provide. However, for millions of pregnant
    workers, they are critical.
        A simple accommodation could mean the difference between
    staying on the job or being forced out on leave. The difference
    between keeping the health insurance and paycheck or putting
    their pregnancy at risk. In 1978, Congress passed the Pregnancy
    Discrimination Act in an effort to stop employers from treating
    their pregnant employees this way. The law prohibited
    discrimination on the basis of pregnancy, childbirth or related
    conditions.
        Over the last 40 years, courts have interpreted the law to
    mean that if you treat your non-pregnant employees well, you
    have to treat your pregnant employees well.
        Of course, the inverse is also true. If you treat your non-
    pregnant employees terribly, you have every right under the law
    to treat your pregnant employees terribly. In 2015, the Supreme
    Court attempted to address how the Pregnancy Discrimination Act
    interacted with the need for pregnancy accommodation in the
    workplace.
        But the court's decision only exacerbated the problem in
    the end. In Young v. UPS, the Court found that in order to
    receive an accommodation, a pregnant worker has to prove that
    her employer accommodated non-pregnant employees who are
    similar in their ability or inability to work. That test places
    a huge burden on pregnant workers. It requires them to have
    detailed knowledge of the medical and employment history of
    every other employee. Women must prove that their need for an
    accommodation is just as valid as their male counterpart who,
    for example, had a hernia.
        For most workers in this country, especially low wage
    workers, there is simply no way to get that information and
    prove that case.
        That is why a recent report from A Better Balance found
    that courts sided with employers in two thirds of pregnancy
    accommodation cases post Young.
        The burden the Young decision places on pregnant workers to
    prove their case, is, for most pregnant women, insurmountable.
    Since Young, other Members of Congress have introduced
    legislation to address pregnancy accommodation, including a
    bill introduced last week by my Republican colleagues, Mr.
    Walberg and Ms. Wagner.
        This new legislation appears to be based on the Young test
    and requires that employers provide an accommodation for some
    of their non-pregnant employees. They must do so for pregnant
    employees in similar working conditions. I am happy to see this
    additional interest in ensuring that pregnant workers have the
    accommodations they need to stay on the job, but the problem
    with Young and therefore the problem with Mr. Walberg and Ms.
    Wagner's proposal, is that they require pregnant workers to
    prove that they have been discriminated against in order to
    access accommodations, but it doesn't have to be that
    complicated. That is why I introduced the bipartisan Pregnant
    Workers Fairness Act. The bill is simple and creates an
    affirmative right to an accommodation, rather than relying on a
    model of discrimination. Using the framework and language of
    the ADA, it requires employers to provide reasonable
    accommodations to pregnant workers as long as the accommodation
    does not impose an undue hardship on the employer. Those
    accommodations would be available for pregnancy, childbirth or
    related conditions including lactation.
        Courts know exactly how to interpret that language. There
    are three decades of ADA case law to guide them. Employers
    similarly have worked within ADA's requirements for decades and
    know exactly what their responsibilities will be. But most
    importantly, women who have the certainty--they can safely stay
    on the job, as long as they choose, during their pregnancy, and
    keep their paycheck and their health insurance throughout.
        We know that this framework for pregnancy accommodation
    works because we have seen it in action. To date, 27 states
    around the country have passed pregnancy accommodation laws
    similar to the Pregnant Workers Fairness Act. States like New
    York, Nebraska, Washington state, most recently South Carolina
    and Kentucky have all passed legislation to provide reasonable
    accommodation in a bipartisan manner.
        Here in the House, the bill has over 100 bipartisan
    cosponsors and is supported by a broad range of health, labor,
    business and women's rights' organizations. Thank you again,
    Chair Bonamici and Ranking Member Comer. I look forward to
    continuing to work with you and this committee to move this
    critical piece of legislation forward.
        [The statement of Mr. Nadler follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you, Chairman Nadler. I want to
    thank you for taking your time to testify before the committee
    today. Your testimony is a valuable piece of legislative
    record. We will now seat the second panel. Thank you.
        Thank you to the witnesses and the committee staff for that
    smooth transition. I will now introduce our witnesses for the
    second panel. Ms. Kimberlie Michelle Durham is from is from
    Arab, Alabama. Ms. Durham made the trip here to Washington D.
    C. to share her story. Formerly, an emergency medical
    technician in Alabama, Ms. Durham was forced off the job when
    she became pregnant.
        Next, Ms. Iris Wilbur, joined Greater Louisville Inc., the
    Metro Chamber of Commerce in 2016. She serves as their vice
    president of government affairs and public policy. In her role,
    she works on policy and legislation at the local, state and
    federal levels to help advocate for the region's business
    community.
        Ms. Ellen McLaughlin is a partner in the Chicago office of
    Seyfarth Shaw LLP and former Chair of the Labor and Employment
    Law Department.
        Ms. McLaughlin is engaged in a broad-based employment law
    practice, specializing in Federal and state court and
    administrative agency employment litigation.
        Ms. Dina Bakst is co-founder and co-President of A Better
    Balance. A leading national legal advocacy organization
    headquartered in New York City. A Better Balance is dedicated
    to advancing the rights of working families, promoting fairness
    in the workplace and helping workers across the economic
    spectrum care for themselves and their families without risking
    economic security.
        We appreciate all of the witnesses for being here today and
    we look forward to your testimony. Let me remind the witnesses
    that we have read your written statements and they will appear
    in full in the hearing record. Pursuant to Committee Rule 7(d)
    and committee practice, each of you is asked to limit your oral
    presentation to a five minute summary of your written
    testimony.
        Let me remind the witnesses that pursuant to title 18 of
    the US Code, Section 1001, it is illegal to knowingly,
    willfully falsify any statement, representation, writing,
    document or material fact presented to Congress or otherwise
    conceal or cover up material fact.
        Before you begin your testimony, please remember to press
    the button on the microphone in front of you so that it will
    turn on and Members can hear you.
        As you begin to speak, the light in front of you will turn
    green. After four minutes, the light will turn yellow to signal
    that you have one minute remaining and when the light turns
    red, your five minutes have expired and we ask that you please
    wrap up your testimony.
        We will let the entire panel make their presentations
    before we move to Member questions. When answering a question,
    please again remember to turn your microphone on. So I will
    first recognize Ms. Durham. Welcome to the committee. You are
    recognized for five minutes for your testimony.

                 TESTIMONY OF KIMBERLIE MICHELLE DURHAM

        Ms. Durham. Good morning, my name is Michelle Durham and I
    am a mom from Arab, Alabama. I want to thank Congresswoman
    Bonamici, Congressman Comer and the subcommittee Members for
    having me here today.
        I've lived my whole life in Alabama and yesterday was the
    first time I've ever been on a plane. It was a little scary,
    but I was glad to make the trip. I want you to know what
    happened when I became pregnant four years ago. They say that
    pregnancy is supposed to be a time of happiness, but my
    pregnancy was filled with anxiety and fear because my employer
    sent me home without pay right when I needed a paycheck the
    most.
        That's not the way things should be. In March 2015, when I
    was 22 years old, I began working for Rural Metro Corporation
    in Gadsden, Alabama. I was an EMT, or an emergency medical
    technician.
        It was my first job after getting my certificate and I was
    excited to work. My plan was to gain experience and save up so
    I could continue my training and eventually become a paramedic.
    About six months after I started working for Rural Metro, I
    learned I was pregnant with my first child. During one of my
    first prenatal appointments, I was told that I shouldn't lift
    anything over 50 pounds, a standard across the board.
        Because my job required me to lift patients in stretchers
    which weighed 100 pounds without a patient on them, I knew that
    I would have to ask Rural Metro to temporarily reassign me so I
    could follow my healthcare provider's orders. I didn't think it
    was a problem because I knew that Rural Metro had a policy of
    giving light duty jobs to EMTs when they had problems, like a
    back injury.
        I also knew that they had dispatcher jobs available that I
    could do and that wouldn't involve any lifting, but I was very
    wrong. My manager told me that the company only gave light duty
    jobs to EMTs who were injured while working. He told me my only
    option was to take an unpaid leave of absence.
        The H.R. department backed him up and told me I had to go
    home. I was shocked. I wanted to work. I loved my job. I really
    wanted to be an EMT and I needed my paycheck. All I could think
    about was how I was supposed to live for six months without
    income of any sort. How was I supposed to prepare for my son to
    come home? I was afraid for him and for me. I soon realized
    that I needed help and I called a lawyer in Birmingham, Heather
    Leonard. She contacted the company and told them what they were
    doing was illegal and that a recent Supreme Court decision was
    on my side. Rural Metro never even responded to her.
        After that, we went to the EEOC and then to court. My
    experience in the court system has been tough. The judge ruled
    against me and my case is on appeal and I've got the ACLU
    helping me and I am very grateful for them. But the truth is I
    didn't want to hire a lawyer, I didn't want to go to court, I
    just wanted to keep working.
        After Rural Metro forced me to take leave in September of
    2015, I was unemployed for about 7 months. I looked really hard
    for a job and I couldn't find one. I couldn't pay my rent. I
    had to move back home with family. I was excited about meeting
    my new baby, but his birth was terrifying. I was worried all
    the time about how I would provide for him and I racked up a
    lot of credit card debt trying to take care of us and pay off
    for my EMT certifications.
        I actually still have a hospital bill from when I gave
    birth to him in March of 2016 because I didn't have health
    coverage. I eventually found a job in a factory, but it didn't
    come with overtime or benefits like my Rural Metro job did and
    I later had to take a second job in a fast food restaurant to
    help pay my bills.
        Recently, I had to change jobs again and I am now a manager
    in a pet store. I still don't have health insurance though and
    my son is on Medicaid.
        My son is three and he is my greatest joy and I wouldn't
    trade being his mom for anything, but I'll never get back those
    months before he was born and after--all I could think about
    was what I was losing while I was pregnant. The worry and the
    fear.
        I hope that Congress passes the Pregnant Workers Fairness
    Act because what happened to me was wrong. Women and families
    need a law that tell their employer that they have to explore
    different options that will help pregnant workers keep their
    job. Employers should not just be able to say no when a
    pregnant worker asks for a temporary change. They should have
    that right to work it out.
        Please, use your power to help pregnant workers take care
    of themselves, their babies and their families and I want to
    thank you for listening to my story today.
        [The statement of Ms. Durham follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you so much for your testimony
    and for making your first plane trip here. We are glad you did.
    I now recognize Ms. Wilbur for five minutes for your testimony.

    TESTIMONY OF IRIS WILBUR, VICE PRESIDENT OF GOVERNMENT AFFAIRS
                & PUBLIC POLICY, GREATER LOUISVILLE INC.

        Ms. Wilbur. Good morning. I am Iris Wilbur and I represent
    Greater Louisville Inc., the Metro Chamber of Commerce. Thank
    you, Chair Bonamici, Ranking Member Comer and the subcommittee
    for the opportunity to explain why GLI strongly supports the
    Pregnant Workers Fairness Act. Today, we live in a world where
    businesses need every person who can work, participating in the
    labor force. On behalf of our 1,700 plus small, medium and
    large companies our chamber represents, this is the most
    pressing topic among our membership.
        We must do what is necessary to attract and retain
    employees and sometimes that means working around their
    personal situations like pregnancies.
        This is particularly true for the 58 percent of women in
    Kentucky's labor force who are of childbearing age. Businesses
    also want healthy workforces, especially in Kentucky where
    healthcare is a major industry.
        Healthcare is a female dominated sector, so we not only
    want to retain women workers, but we want to keep them healthy
    and advancing in their careers.
        Over the last year, GLI worked with our membership and
    helped pass Kentucky legislation called the Pregnant Workers
    Act, a law designed to help combat discrimination and promote
    women's labor force participation. What we discovered among our
    membership was that most large company HR departments had the
    resources to stay current on changes in the law but many small
    to midsize companies were forced to navigate complex
    circumstances like pregnancy and related medical conditions
    without the aid of a robust H.R. department or in house
    counsel. We saw an opportunity to search for a solution and
    prevent problems before they start and found the state proposal
    to be a strong pro-business bill that will have a positive
    impact on Kentucky's economy.
        The Kentucky law parallels the proposed Federal Pregnant
    Workers Fairness Act in that it applies to employers with 15 or
    more employees and how to provide accommodations for pregnant
    workers, unless it constitutes an undue hardship for the
    employer. The Kentucky law defines reasonable accommodations
    and provides businesses with guidance about when an employer is
    and is not obligated to provide them. Our pro-business, pro-
    workforce bill not only earned endorsements from the Kentucky
    chapters of March of Dimes, United Way, Fraternal Order of
    Police and Nurses Association but also passed with overwhelming
    bipartisan support in the general assembly with over 80 percent
    of our legislators voting yes and then signed into law. The
    bill was championed by Republican Senator Alice Forgy Kerr with
    bipartisan co-sponsors.
        Although we passed the law in Kentucky, we still need the
    Federal PWFA. GLI covers 15 counties, 5 in southern Indiana,
    home to many multistate businesses and headquarters so the
    ability to have uniformity related to these accommodations
    throughout the country is important. This is why we urge
    Congress to take action.
        Just like the Kentucky law, the much-needed clarity
    outlined in the PWFA will increase the potential to resolve
    reasonable accommodation requests quickly and informally and
    reducing the potential for costly litigation. We believe that
    the Act will lead to reduction, non-increase in litigation for
    precisely this reason.
        At least two states with these laws have reported reduction
    in litigation since these laws went into effect. For our
    members, uncertainty means dollars. A consistent and
    predictable legal landscape means a business-friendly
    environment. Before Kentucky's law was enacted this Summer, our
    employers were forced to navigate a complex web of Federal laws
    and court decisions to figure out their obligations. And now
    this guidance is especially beneficial for the smaller
    companies we represent who cannot afford expensive legal
    advisors.
        Additionally, the Act will help boost our country's
    workforce participation rate among women. In states like
    Kentucky, which ranks 44th in the nation for female labor
    participation, we know one contributor to this abysmal
    statistic is a pregnant worker who is forced out or quits a job
    due to a lack of reasonable workplace accommodations.
        By clearly laying the groundwork for an informed dialogue
    between employers and employees, women can continue working
    safely and productively throughout the course of a pregnancy
    and afterwards.
        Finally, the Act includes pro-business safeguards to ensure
    these accommodations will not cause financial harm to a
    business or significantly interfere with day to day operations.
        While most pregnancy accommodations are low cost, a stool
    to sit on, access to water to stay hydrated or a modified work
    schedule like the ADA, the law includes an undue hardship
    standard that would exempt employers if the accommodation would
    cause significant difficulty or expense. There is a clear
    bottom line here. The Act is pro-business and pro-workforce and
    GLI urges Congress to pass the Pregnant Workers Fairness Act.
    Thank you.
        [The statement of Ms. Wilbur follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you for your testimony. I now
    recognize Ms. McLaughlin for five minutes for your testimony.

       TESTIMONY OF ELLEN McLAUGHLIN, PARTNER, SEYFARTH SHAW LLP

        Ms. McLaughlin. Thank you, Chair Bonamici, Ranking Member
    Comer and Members of the subcommittee. Thank you for giving me
    the opportunity to testify here today on the Pregnant Workers
    Fairness Act. My name is Ellen McLaughlin, I am a partner in
    the law firm Seyfarth Shaw although today I testify on my own
    behalf.
        I have practiced law exclusively in the employment arena
    for over 38 years defending employers before administrative
    agencies as well as in state and Federal courts. A significant
    portion of my practice is dedicated to providing advice and
    counsel on accommodation and leave issues.
        I have coauthored comments to the EEOC's proposed
    regulations to the ADA as well as the amendments Act. I also
    coauthored comments to the DOL's FMLA proposed regulations back
    in 2008 and even this year when DOL has proposed using new
    forms.
        Finally, in June 2011, I was one of two management
    attorneys in the country invited by the EEOC to testify at a
    public hearing on the issue of leave as an accommodation. The
    purpose of my testimony is not to take a position on this bill
    but rather to briefly describe the protections currently
    afforded to workers who are pregnant and raise questions that I
    hope the subcommittee will consider regarding the proposed
    legislation.
        There are three primary laws at the level affording
    protection to pregnant workers. The Pregnancy Discrimination
    Act, which provides that an employer violates Title VII if it
    intentionally discriminates against an employee due to their
    pregnancy. If a worker is temporarily unable to perform her job
    duties due to a medical condition related to that pregnancy or
    childbirth, the PDA mandates that an employer must treat her in
    the same way as it treats other temporarily disabled employees.
        The ADA Amendments Act broadened the definition of
    disability such that pregnancy related restrictions may
    constitute a disability, thus triggering the employer's duty to
    reasonably accommodate and Federal court decisions have
    specifically held that pregnancy related medical conditions are
    disabilities. And finally, the FMLA provides that a pregnant
    employee can take 12 weeks of job protected leave in a 12 month
    period due to pregnancy, including on an intermittent basis.
        State laws, there are approximately 25 of them. I guess 27
    now that do provide protection, but they have varying
    definitions of what a known limitation is, ranging from New
    York's law that references inhibiting the exercise of a normal
    bodily function to the Illinois law, my home state that
    references any medical or common condition that relates to
    pregnancy. It is against this existing legal landscape that
    have this present bill that talks about mandating reasonable
    accommodations to the known limitations related to pregnancy,
    absent undue hardship.
        But the phrase ``know limitations'' is not defined in the
    bill. It is clearly different than the definition of a covered
    disability under the ADA and while the definition of the
    disability under the ADA may not be perfect, it has been
    interpreted by courts over a period of years and employers are
    familiar with its standards. Given the bill's language, it
    appears that any limitation of any type for any duration may be
    covered as long as the employer is aware of it.
        The bill also does not address another key provision from
    the ADA, which is a reasonably accommodation statute and that
    is essential job functions. Under the ADA, an employer need not
    provide the accommodation when an employee remains unable to
    perform the essential functions of the job, even with the
    accommodation by eliminating the essential function criteria,
    the bill appears to require that employers keep the employee on
    the job, regardless of their ability to continue to perform the
    core functions.
        Finally, the bill does not address other key issues that
    are explicitly addressed by the ADA such as not including a
    defense that an employee may not pose a direct threat to the
    health and safety of themselves or others and it is also
    unclear as to what happens if the accommodations sought by the
    employee creates an undue hardship and weather the employer
    would then be able to put the employee on leave. In conclusion,
    I believe the legislation does not address some key issues and
    questions that are important, especially the lack of a
    definition for its most fundamental term, known limitations,
    and the lack of any reference to essential job functions.
        I believe the issues I have raised are appropriate as this
    committee works through this legislation and considers the
    purpose and practical effect of this bill on the already
    complex matrix of federal and state laws on this subject, thank
    you.
        [The statement of Ms. McLaughlin follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you for your testimony. I now
    recognize Ms. Bakst for five minutes for your testimony.

      TESTIMONY OF DINA BAKST, J.D., CO-FOUNDER & CO-PRESIDENT, A
             BETTER BALANCE: THE WORK & FAMILY LEGAL CENTER

        Ms. Bakst. Thank you, Chair Bonamici, Ranking Member Comer
    and Members of the subcommittee for the opportunity to testify
    today.
        Almost 41 years ago, Congress passed the Pregnancy
    Discrimination Act to guarantee equal opportunity for millions
    of working women, but I am here to tell you that pregnant women
    in this country are still often treated as second class
    citizens.
        Despite the promise of the PDA, pregnancy discrimination
    remains rampant in America and a key barrier to gender
    equality. One very common form, especially impacting women in
    low wage and physically demanding jobs, predominantly women of
    color, is when pregnant women are fired or forced out rather
    than provide temporary job modifications that would allow them
    to keep working.
        Women often face an impossible choice: stay on the job and
    risk their health or lose their paycheck when they need it
    most. And unfortunately, at A Better Balance, we have heard
    hundreds of these stories from workers we have spoken with over
    the years. Women like our former client, Betsada Cruz-Cardona,
    a cashier from upstate New York, who was told she should just
    ``Stay home. Take care of pregnancy and rest'' after handing in
    a doctor's note with a lifting restriction, even though she
    could have easily been accommodated and desperately wanted to
    continue working. With no paycheck, Betsada wound up homeless
    and had to rely on family and friends for shelter, living from
    couch to couch as she prepared to become a mom.
        The economic wellbeing of most Americans' families today is
    dependent on working mothers.
        When women like Betsada lose out on critical income, they
    not only suffer in the short term, they forfeit other long term
    benefits earned on the job, contributing to their economic
    inequality and exacerbating the wage gap. When pregnant women
    are denied workplace accommodations, we know their health often
    suffers too.
        I'll never forget one pregnant cashier who was told she
    could not carry a water bottle on the job. She wound up in the
    ER due to severe dehydration after fainting and collapsing on
    the retail floor.
        Other health risks associated with failure to accommodate
    include urinary tract infections, fainting, preterm birth, low
    birth weight and even miscarriage as evidenced by the
    experience of our client Tasha Morelle, who was featured in a
    front page New York Times story last year. These options risk
    your health or lose your paycheck reinforce the stereotype that
    pregnancy, motherhood and employment are irreconcilable and
    defy the purpose of the Pregnancy Discrimination Act. Almost 5
    years ago, the Supreme Court addressed the application of the
    PDA to workplace accommodations in Young. Unfortunately, the
    multistep evidentiary framework established by the Court's
    majority and the unique burden it places on pregnant workers to
    provide a wide range of evidence of non-pregnant comparators to
    prove their employer's intention was discriminatory has made it
    difficult and often impossible for pregnant workers to succeed
    in court post Young and get the accommodations they need. This
    standard is also tone deaf to the realities of the American
    workplace where pregnant workers typically lack access to their
    coworkers' workplace accommodation requests, personnel files
    and simply lack the luxury of time and certainly the resources
    to sort out these questions. The ADA by contrast offers workers
    with disabilities the explicit right to accommodations absent
    undue hardship.
        They can completely bypass this burden of proving that a
    coworker was accommodated first however most pregnant workers
    with medical needs are not deemed disabled under the ADA and
    failed to trigger its protections.
        There is a solution. The bipartisan PWFA would address this
    gap in the law and fulfill the intent of the PDA. Specifically,
    the PWFA would require employers to make reasonable
    accommodations for employees who have a limitation stemming
    from pregnancy, childbirth or related medical condition unless
    the requested accommodation would impose an undue hardship.
        The same familiar process in place for workers with
    disabilities. The PWFA would also ensure that a worker cannot
    be forced to take leave if another accommodation can keep her
    worker and healthy. Like the ADA, the law would encourage a
    productive and formal dialogue between employee and employer
    rather than stressful and time-consuming litigation, as we know
    firsthand this is precisely what most pregnant women need and
    want. They need clear rights and an immediate solution to stay
    that allows them to follow their doctor's orders and stay
    attached to the workforce.
        Requiring a pregnant worker to jump through legal hoops to
    get a medically necessary accommodation is a fundamental
    deterrent to justice and equality. State legislators on both
    sides of the aisle have recognized that accommodating pregnant
    workers is smart public policy as well and are taking action.
        As you heard, there are now 27 states from New Jersey to
    Kentucky that provide it. At ABB we see these laws are working.
    For example, thanks to New Jersey's law, a public employee,
    Takira Woods was quickly able to follow her doctor's orders and
    return to work in a light duty position. Yet while states have
    improved workplace conditions for thousands of women, job
    protection and a healthy work environment should not depend on
    luck or location.
        The PWDFA would finally ensure that pregnant workers in
    every corner of the country stand on equal footing in the
    workplace. No one should have to choose between her job and a
    healthy pregnancy. It's time for Congress to step up and pass
    this critical legislation. It's long overdue, thank you.
        [The statement of Ms. Bakst follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you for your testimony. Under
    Committee Rule 8(a), we will now question witnesses under the
    five minute rule, alternating between the parties and I
    recognize myself for five minutes.
        Ms. Durham, I understand that you demonstrated to the court
    that your employer was accommodating your similarly situated
    coworkers who had similar light duty lifting restrictions but
    they didn't offer the same accommodations to you while you were
    pregnant so what did you think? How did you feel when you
    learned that even though you proved that others got
    accommodations, it wasn't enough for you to win your case?
        Ms. Durham. Honestly, it felt very discouraging. It felt
    like it was a misunderstanding which is why I contacted the
    lawyer in Birmingham about it. The original intent in what we
    had done was to send them a letter to hopefully clear this up
    because it really did just seem like it was a big
    misunderstanding. They were already accommodating others who
    had restrictions.
        Chairwoman Bonamici. Ms. Bakst, is Ms. Durham's experience
    common and if so, how would the Pregnant Workers Fairness Act
    address the issues she faced in court?
        Ms. Bakst. Yeah, unfortunately it's all too common and our
    recent report, Long Overdue, as you mentioned earlier, we found
    that in over two thirds of cases, pregnant workers are losing
    their accommodation cases post Young and in over 70 percent of
    those cases, they are losing their cases because they are
    unable to identify a sufficiently valid comparator or a
    comparator at all. And that is a real barrier to equality and
    justice for pregnant women. There is another worker, her name
    is Cassandra Aducci. One of her cases that really stands out,
    Cassandra worked part time loading and unloading boxes in
    Tennessee. She requested light duty also per her doctor's
    orders and the company refused to also accommodate her and
    pushed her out on unpaid leave.
        She presented the court a spreadsheet of 261 other
    employees that were provided light duty and also pointed to a
    coworker that was provided light duty. The court rejected this
    evidence since the spreadsheet did not have detailed
    information about other employees' ability or inability to
    work. And so therefore, they were insufficient comparators.
    This is truly an insurmountable and extraordinarily difficult
    burden for a pregnant worker to meet.
        Chairwoman Bonamici. Thank you and Ms. Bakst, I want to
    follow up on some testimony from Ms. McLaughlin. Ms.
    McLaughlin, in her testimony was expressing concern about the
    Pregnant Workers Fairness Act, the use of the term known
    limitation and Ms. McLaughlin stated that ``the phrase no
    limitation is clearly different than the definition of a
    covered disability under the ADA'' so I wonder if you could
    take a minute and respond to that concern and what pregnancy
    related impairments or disabilities have the courts deemed not
    covered under the ADA or the ADA Amendment Act and how would
    the Pregnant Workers Fairness Act address this?
        Ms. Bakst. Sure, so to take the first question, I would say
    yes. I mean the intent of the Pregnant Workers Fairness Act is
    precisely to ensure coverage for pregnant workers with
    limitations or medical needs stemming from pregnancy that don't
    qualify as covered disabilities under the ADA.
        Those limitations that could jeopardize a pregnant worker's
    health but that aren't deemed disabilities yet. That's why it's
    not a covered disability under the ADA but please note that the
    PWFA borrows very familiar standards from the ADA like
    reasonable accommodations on undue hardship and the interactive
    process so the fundamental nature of the law, the fundamental
    framework is similar but covered disabilities, no, it's not in
    the PWFA context precisely because those are the women that
    pregnant workers are often not found to have qualified
    disabilities. And to answer the question, the question about
    the ADA and who was not covered: we have seen that courts
    interpret the ADA--even though it was amended in 2008 and I
    will say that there are a pool of workers--let's say a worker
    with gestational albuminuria and there have been courts that
    have ruled that there are workers with pregnancy related
    complications that should be covered under the ADA and that are
    but there are a lot that we have reviewed that are not and it's
    actually quite alarming.
        For example, Tanya Oliver from Pennsylvania had high risk
    medical complications associated with high risk pregnancy with
    triplets and needing surgery at the time of birth and the
    courts said no the ADAAA doesn't protect her because high risk
    pregnancy is not enough. Or Silvier Won-Anusi who went to the
    ER while pregnant, was diagnosed with hyperemesis of pregnancy,
    a form of morning sickness and hypokalemia, a low level of
    potassium. The court also said not a disability. Jennifer
    Alger, she experienced severe complications and bleeding at
    work but in 2016 the court said she failed to show that her
    pregnancy related complications constituted a disability under
    the Americans with Disabilities Act. That is unacceptable.
    Those women need clear rights to accommodations so they can
    follow their doctors' orders and stay healthy and on the job.
        Chairwoman Bonamici. Thank you, I see my time is just about
    to expire. I just wanted to thank Ms. Wilbur for bringing the
    business perspective. I spoke with our state labor commissioner
    and that was part of a conversation when Oregon passed its bill
    too that the business community really wanted that certainty so
    I don't have time for a question but I wanted to thank you for
    bringing that perspective and I now yield five minutes to Mr.
    Thompson from Pennsylvania for your question.
        Mr. Thompson. Thank you, Madam Chair. Thank you, ladies,
    for being here. It's a really important hearing and topic. Ms.
    McLaughlin, thank you for being here. Discrimination of any
    type should not be tolerated, and I certainly should strongly
    support the federal laws that protect pregnant workers such as
    Pregnancy Discrimination Act, PDA of 1978 and the American
    Disabilities Act. The PDA forbids discrimination based on
    pregnancy when it comes to any aspect of employment and
    furthermore, the ADA requires that employers make reasonable
    accommodations for individuals who have a physical or mental
    impairment that substantially limits one or more major life
    activities.
        Major life activities include performing manual tasks,
    seeing, hearing, eating, sleeping, walking, standing, lifting
    or bending. Now while pregnancy is not apparently in itself--
    the ADA covers impairments related to pregnancy which can
    affect major life activities such as walking, standing and
    certainly lifting.
        Ms. McLaughlin, under the ADA, employers may have
    qualification standards such as physical, medical, safety and
    other requirements that may negatively impact certain
    individuals. Is there a similar provision in H.R. 2694?
        Ms. McLaughlin. No, there is not.
        Mr. Thompson. What is the purpose of the ADA provision?
        Ms. McLaughlin. So under the ADA, a qualification standard
    would basically mean that you have a job standard that applies
    equally to everyone but may have some sort of an impact on a
    protected group of under the ADA, disabled individuals and then
    the employer needs to make certain that standard is job related
    and consistent with business necessity. By way of example, if
    you had a police department that required all of its officers
    to be able to respond to a forcible arrest call and perform
    those job functions, that's a very physical attribute and it
    may have an impact on somebody who has a disability. And
    likewise, frankly, it may have an impact on a pregnant worker
    who was unable to respond to their essential function of
    responding to a forcible arrest so the qualification standard
    is very much like the essential job functions. It's just kind
    of a different way of putting it in terms of impact but not
    included in this current bill.
        Mr. Thompson. H.R. 2694 includes the term ``known
    limitations'' as we've heard relating to pregnancy. How does
    the bill define ``known limitations?''
        Ms. McLaughlin. And this is one of my big concerns with the
    bill. It's that known limitations is not defined so if it is
    going to be defined as not a disability, not a physical or
    mental impairment that substantially limits a major life
    activity that is the ADA definition, what is it? I really think
    employers need to know that so both the employer and the
    employee community going forward understand what their
    obligations are.
        Mr. Thompson. Are there any restrictions to these
    limitations?
        Ms. McLaughlin. There are none.
        Mr. Thompson. Outside this bill, is this a well-defined
    legal term?
        Ms. McLaughlin. I think you can tell by the various
    definitions that all of these states have used that it isn't.
    All of the states use very different words to express what they
    mean by known limitation and at least as far as I know, it's
    not a term of art that is known by either the employer or the
    employee community.
        Mr. Thompson. In the effort to prevent discrimination of
    pregnant workers, which I am fully supportive of, does H.R.
    2694 improve clarity for protections of these employees or does
    H.R. 2694--in its current form with--
        Ms. McLaughlin. I mean I think in its current form, it is
    missing some key terms. Definition of known limitations,
    essentially job functions, qualification standards, what if the
    pregnant worker is a direct threat in certain safety sensitive
    jobs, do the health and safety of themselves or maybe to
    others--so I think because it could be improved, it is not as
    clear as it could be.
        Mr. Thompson. Once again, I really want to make sure that
    we do everything we can to prevent discrimination for pregnant
    workers. I think that's incredibly important and it's important
    enough that we get it right. I am not sure that H.R. 2694 in
    its current form provides that type of clarity. Thank you,
    Madam Chair and I yield back.
        Chairwoman Bonamici. Thank you. I now yield five minutes to
    Dr. Schrier from Washington for your questions.
        Dr. Schrier. Thank you, Madam Chair. First, I would like to
    submit for the record a letter from the National Women Infant
    and Children Association or WIC endorsing Pregnant Workers
    Fairness Act into the record.
        Chairwoman Bonamici. Without objection.
        Dr. Schrier. I had a high-risk pregnancy, complicated by
    both advanced maternal age which I call elderly mom syndrome at
    age 40 and 24 years of Type I diabetes and I worked until two
    days before my C-section. This is because I was fortunate that
    my employer allowed for minor accommodations, very minor
    accommodations that allowed me to continue to work. And we need
    to remember that women are half of our workforce and I would
    add to that they tend to do better in college and are excellent
    in their jobs. 75 percent of those women will become pregnant
    at some point and it should be plainly obvious that we should
    support pregnant people in their pregnancies just like we
    should support prenatal care, immunizations, affordable child
    care and public education. This is just how we make our society
    better.
        In healthcare it is wildly understood that preventative
    measures and addressing smaller issues before they escalate are
    ways to lessen the cost of care.
        Hospital bills can cost between 5,000 and 11,000 dollars
    just for a regular pregnancy labor delivery plus all the costs
    that come from preparing for and taking care of the baby.
        Now it costs all of us, when we don't do that and when a
    baby is born at 24 weeks and requires months in the NICU. I
    have taken care of those babies. It costs us all when a fetus
    is exposed to toxins in utero and that results in an unhealthy
    child who might need public support for the rest of his or her
    life because we couldn't protect the mother from an unhealthy
    environment and it cost us all when we lose our workforce
    because pregnant women and mothers are not welcomed and
    supported in the workplace.
        So Ms. Durham, my first question is to you and first, thank
    you so much for sharing your story and I am so sorry for the
    pain and the anxiety and the financial hardship that you had to
    go through really unnecessarily. I also, as you heard, had a
    high-risk pregnancy and in your remarks, you discussed how
    losing your job did not just affect planning for the birth but
    also for your plans to support your child long term. There are
    a lot of costs in pregnancies that aren't even related to the
    birth. Car seats, diapers, doctor appointments, et cetera.
    Would you speak to your experience? What did you have to do to
    support your son since losing your job at rural metro?
        Ms. Durham. Actually, I have changed a lot of jobs recently
    trying to keep up with that pay and everything else that I need
    to support him. I have been very fortunate. I have a very good
    support system back home between my family and my friends and I
    have gotten several gifts and hand me downs and help in that
    department, but it has been very hard.
        Childcare, in and of itself is expensive, even in my state
    where a lot of costs are lower. It's just been a rough trip and
    we take it day by day and we do what we have to do to get
    there.
        Dr. Schrier. Thank you. And Ms. Bakst, thank you so much
    for your work to strengthen protections for pregnant workers.
    In your remarks, you stated that two thirds of women have lost
    their PDA pregnancy accommodation claim post the 2015 court
    case Young v. UPS. Accommodations are important. Heavy lifting
    can result in those pre term births. Exposure to environmental
    toxins can result in harm to the mother and the fetus,
    pregnancy reduced hypertension can have devastating outcomes,
    including maternal death.
        They used to say that pregnancy was like having one foot in
    the grave. In your opinion, how will adequate accommodations
    improve the life outcomes of the pregnant worker and do you
    foresee a direct relationship between maternal death rates and
    pregnant worker protections?
        Ms. Bakst. Yeah, I think that time and time again we see
    how affording pregnant workers temporary and modest
    accommodation serves to keep them healthy and maintain a
    healthy pregnancy and prevent complications down the road,
    keeping them out of the hospital, exacerbating healthcare
    savings costs. As you said, a minor, temporary accommodation,
    whether that's a stool, extra bathroom break, temporary relief
    from heavy lifting, which let me clarify is not a disability
    but is often something--a need that arises from pregnancy where
    women don't have a disability yet but why should a woman have
    to risk her health and potentially develop a complication or a
    qualified disability in order to trigger the law's protection.
    That does not--it defies common sense in a time where we are so
    concerned about maternal mortality and maternal health,
    especially for low income women, women of color where they know
    that these problems are really severe. We should be doing
    everything in our power to make sure that these women can
    maintain healthy pregnancies and prevent complications before
    they start.
        Dr. Schrier. Thank you. I think I am out of time.
        Chairwoman Bonamici. I now recognize the Ranking Member of
    the full committee, Dr. Foxx from North Carolina for five
    minutes for your questions.
        Mrs. Foxx. Thank you, Madam Chairman and I want to thank
    our panel for being with us today. I want to say that I worked
    when I was pregnant up to the very day that I delivered my
    daughter and went to the hospital at midnight. I actually went
    to class that night from 7-10 and then went to the hospital at
    midnight so I was very active up until the moment she was born.
    Ms. McLaughlin, you discussed in your testimony the Pregnancy
    Discrimination Act and the Americans with Disabilities Act as
    amended. Were these laws broadly written to cover a wide range
    of experiences and circumstances? In your opinion, has the ADA
    provided protections to pregnant workers?
        Ms. McLaughlin. Both of these laws--
        Mrs. Foxx. Would you turn your microphone on?
        Ms. McLaughlin. I do think both of these laws were very
    broadly written. The PDA has very broad language about anti-
    discrimination and how, again, post Young, an individual would
    prove that there has been discrimination but more so the ADAAA
    back in 2008 when it was amended--and I think it's best said in
    a law review article that I did cite in my written testimony by
    Joan C. Williams, A Sip of Cool Water: Pregnancy Accommodation
    after the ADA Amendments Act. That's a Yale law review article
    that basically focuses on the fact that the amendments Act
    pretty much did away with the duration requirement and there is
    a specific reference to that in both EEOC guidance on pregnancy
    discrimination as well as regulation under the ADA that says
    impairments of short term duration under six months can be
    impairments and you combine that with the expansion of the
    definition of major life activities to add more major life
    activities, including bodily functions and then finally a more
    favorable and employee friendly substantially limits standard.
        You put all those together and pregnant workers with
    limitations even if they are of more short-term duration, are
    covered disabilities and that is borne out by cases but
    certainly by the law as it exists.
        Mrs. Foxx. Thank you and I want to say from the very
    beginning I believe that all members of Congress, Democrats and
    Republicans want to see all workers protected from any harm
    that could occur to them and especially pregnant women and I
    think our record proves that.
        Ms. McLaughlin, H.R. 2694 applies to ``known limitations
    related to pregnancy, childbirth or related medical conditions,
    workers.'' Your testimony notes that the term known limitations
    is not defined in H.R. 2694 in contrast to the detailed
    definition of disability in the ADA. If H.R. 2694 is enacted,
    will the EEOC, or the courts or both have to define known
    limitations? Would there be more certainty for workers and
    employers if Congress defined this key term in the bill?
        Ms. McLaughlin. It would certainly be more beneficial for
    Congress to define known limitations so that moving forward, as
    both employers and employees know their rights and obligations
    under this law. They know what that term means.
        While there is a provision in the bill that talks about
    within the two years after enactment, the EEOC should implement
    regulations. Two years is a long time to wait and my fear is
    that lack of definition would result in litigation just as we
    had when the ADA was originally passed about what the
    definition of disability was.
        Mrs. Foxx. Thank you. Ms. McLaughlin, to qualify for ADA
    protections, a worker must be able to perform the essential
    functions of the job with a reasonable accommodation. My
    understanding is that H.R. 2694 does not include this provision
    from the ADA. What is your view about this discrepancy?
        Ms. McLaughlin. I think it's one that needs to be seriously
    reviewed and from my perspective should be included in any bill
    that passes so that if a pregnant worker is accommodated, they
    still need to be able to perform the essential functions of
    their job and if they can't, some indication as to what the
    employer is then permitted to do, would it be, for example, to
    put them on leave, which seems to be prohibited by the bill in
    its current state in many circumstances so I think the
    essentially function concept is critical to have in this bill.
        Mrs. Foxx. Thank you very much, I yield back, Madam
    Chairman.
        Chairwoman Bonamici. Thank you, I now recognize Ms. Hayes
    from Connecticut for five minutes for your questions.
        Ms. Hayes. Thank you, Madam Chair for holding this hearing
    and thank you to all the witnesses who are here today. As I am
    listening to all of you talk, especially you, Ms. Durham, I am
    reminded of my own experiences. I was a working mom, an
    educator who had an uneventful pregnancy. I was not older, or I
    did not have any complications and what I thought was a
    reasonable accommodation because a tremendous inconvenience. I
    was a classroom teacher and all I needed was to go to the
    bathroom which I thought was a reasonable request to ask but
    you can imagine in a high school with more than 1,000 kids, to
    get coverage, I was often told ``well you just had your break''
    or ``we only have two more periods before it's time for
    lunch.'' And thinking that I have to go right now was just
    something that I just dealt with which led to further
    complications with bladder issues so what started out as an
    uneventful pregnancy ended up having complications as a result
    of this minor accommodation not being met. I delivered my son
    on the last day of school so all I wanted to do was work but
    part of that was not that I was so brave or strong or
    altruistic, I was thinking about I need to save my time for the
    other side of this pregnancy because I can't afford to be out
    of work without pay.
        So I absolutely get it. What I don't get is the idea that
    pregnancy is some kind of unforeseen limitation for a company.
    We have heard that the majority of women work, and that 75
    percent of those women will likely become pregnant while in the
    workplace.
        So I want to get to the point about just the ability to
    perform essential job functions and what that means because we
    are hearing a lot about workers that need to be treated
    equally. I don't think this is an equality issue, this is an
    equity issue because last I checked, men can't get pregnant so
    the only people who will be affected by this are women who get
    pregnant on the job and are asking for something that other
    employees will never have a need for.
        Ms. Bakst, would you mind responding--I'm sorry, one
    second. I always forget to do this. Madame Chair, I have two
    documents I need to submit for the record. A document from the
    National Women's Law Center and a letter from Senator Elizabeth
    Warren in support of Pregnant Workers Fairness Act.
        Chairwoman Bonamici. Without objection.
        Ms. Hayes. Thank you. Back to you, Ms. Bakst. Would you
    mind responding to the concerns around known limitations in
    this bill? Because I--in my experience--you've heard just from
    the people in this panel, every pregnancy is different so how
    do you define the experience of a pregnancy as a known
    limitation?
        Ms. Bakst. So in most of the states that we have worked in,
    it's been rather easy to define and to be able to explain that
    this--the pregnancy itself is not a disability but limitations
    or medical needs arising from pregnancy could trigger the need
    for an accommodation so the law uses the term--so the PWFA uses
    no limitations to reflect those scenarios where there is a
    physical or medical need for an accommodation and it must be
    known to the employer and do you want--the essential functions
    question, was that a related--so--
        Ms. Hayes. Because I didn't hear going to the bathroom in
    that list of essential life functions.
        Ms. Bakst. Right, so you make an important point that
    pregnancy is only temporary. That is for sure. We know that. So
    needing to have some essential functions temporarily excused
    for a limited duration is reasonable and in fact there are some
    cases in the ADA context that say just that because we would
    have a reasonable timeframe which in some instances, and
    certainly not all, where a woman would not be able to perform
    the essential functions of her job. I mean do you really think
    a pregnant worker who can't lift over 40 pounds for a few
    months should be sent home and lose her health insurance? Even
    though it would be reasonable and not an undue hardship for her
    to have help lifting or transfer to another department when
    there are open position or when their coworkers often want to
    help them? I mean that's what we see all the time.
        The coworkers want to work it out and then H.R. gets
    involved and points to a piece of paper and says oops, you
    can't do the essential functions of your job, you're out. That
    doesn't make sense. We need a way to keep pregnant workers
    working and on occasion, if they need a transfer or because in
    the near future they will be able to perform their essential
    functions of their job, that should be workable and again, if
    this is all an undue hardship, the employer need not provide
    the accommodation but the law would require the employer to
    consider the accommodation request, rather than just pushing
    the pregnant worker out and then all the devastating economic
    consequences that often flow from that.
        Ms. Hayes. Thank you. I see my time is about to expire so
    I'll yield back. Thank you.
        Chairwoman Bonamici. Thank you. I now recognize
    Representative Stefanick from New York for five minutes for
    your questions.
        Ms. Stefanik. Thank you, Chairwoman and thank you to all of
    our witnesses who are here today to discuss a really important
    issue. Discrimination against pregnant women in the workplace
    is an indefensible practice and I am very pleased to see
    Congress take such an active role in ensuring that our laws
    provide robust protections for pregnant workers.
        I was proud to recently introduce the pregnancy
    discrimination Amendment Act with my colleagues, Tim Walberg,
    Anne Wagner and Jackie Wolorski that would enhance protections
    for pregnant women in the workplace.
        We all agree that pregnant workers should be protected and
    reasonably accommodated in the workplace and as we consider
    further changes to the law, it's important to take a step back
    to ensure we have a better sense of what has and has not been
    working. So Ms. McLaughlin, the ADA includes a comprehensive
    definition of disability, does H.R. 2694 need to include more
    guidance on what limitations are covered or not covered by the
    bill?
        Ms. McLaughlin. Again, I think that would be extremely
    helpful to understand is no limitation as I am hearing today.
    Does it mean any and all limitations always, no matter how
    short. If that is the intent of the bill, it would be very
    helpful certainly to employers to understand that. But that
    phrase, no limitations, at this point is not well defined and I
    believe should be.
        Ms. Stefanik. And Ms. McLaughlin, the bill also
    incorporates the definitions of reasonable accommodation and
    undue hardship from the ADA, does H.R. 2694 incorporate any
    other terms or concept from the ADA and if this bill is
    considered by the committee, should other features of the ADA
    be considered for inclusion in the bill?
        Ms. McLaughlin. So the bill does reference reasonable
    accommodation and undue hardship and says it should be similar
    to the ADA. It references using the interactive process and
    that's really where it stops, I would say, other than the
    damages and schemes are the same.
        What it should include, because they are both accommodation
    statutes is a better built out definition of no limitations as
    well as a reference to a central functions and well as a
    reference to the direct threat defense and qualification
    standards. That would be a good start to really pattern the
    ADA.
        It may be different, but those concepts are the same
    because they are both accommodation statutes and I would just
    end with saying any employers and employees are used to working
    with the concepts and definitions under the ADA.
        Ms. Stefanik. Thank you, that's very helpful to provide
    that feedback and I yield back.
        Chairwoman Bonamici. Thank you, representative. I now
    recognize Ms. Lee from Nevada for five minutes for your
    question.
        Ms. Lee. Thank you, Madam Chair. Before I get started, I'd
    like to enter into the record a letter from the National
    Partnership for Women and Families in support of this bill.
        Chairwoman Bonamici. Without objection.
        Ms. Lee. This bill is incredibly personal to me. I am the
    mother of two children, however I had several unsuccessful
    pregnancies and in fact, when I had my son, I spent three
    months on bedrest before he was born, and dehydration was the
    factor that was cited in pushing me into premature labor. There
    were other factors but I sit here today as a witness of staying
    off your feet, staying hydrated or avoiding heavy lifting can
    be the difference between having a healthy baby or going into
    premature labor and possibly having a severely premature baby
    which is what I was at risk of and you know, just thinking
    about all the costs and complications associated with that or
    even having a miscarriage. The bottom line is that women should
    never have to make the choice between ignoring a doctor's
    orders or keeping a job and sadly it's low income families that
    are most vulnerable when these simple protections don't exist.
    That's why the Pregnant Workers Fairness Act is so important.
        In Nevada, where I come from, over 64 percent of women are
    the primary or co-breadwinners and these women are more likely
    to work low wage jobs. A woman in Nevada is over 60 percent
    more likely to work a low wage job than a man. When a pregnant
    woman is forced to leave her job because she didn't receive
    reasonable accommodations at work, it's their families that are
    forced to live without health insurance or income during a time
    when they need it the most as Ms. Durham had explained.
        The current legal loopholes have already been highlighted
    here today and it's clear that working mothers and businesses
    need the clarity to ensure that pregnant women can be
    accommodated. These accommodations are simple, like a stool to
    sit on, an extra bathroom break, perhaps a larger uniform to
    accommodate a growing baby or even carrying a water bottle onto
    the floor.
        Working women who are pregnant don't have the time or the
    resources to take these matters to court and work through this
    litigation to receive these accommodations.
        Ms. Durham, I am sorry that you had to go through that
    process and I personally get frustrated thinking about the life
    that you could have had in the job that you trained for, had
    these accommodations been made to you so thank you for that
    testimony, I appreciate it.
        Ms. Wilbur, I just wanted. You described how Kentucky had
    passed a version of this bill and it was supported by
    businesses who recognized the economic benefits of providing
    clarity and uniformity on the issue of reasonable
    accommodation. Can you tell us what were the employers' initial
    worries about the costs of providing these accommodations?
        Ms. Wilbur. Thank you for your question and so this was
    sort of a long journey for our metro chamber of commerce and I
    always like to kind of set the stage. We have heard about these
    issues bubbling up across the country and some folks had
    approached our metro chamber to explore this issue and so after
    some conversations among our membership of all sizes, of all
    different sectors and industries, we learned pretty quickly
    that because we had a whole list of questions, that we needed
    this type of clarity.
        For our membership, when you have a bunch of questions, a
    bunch of concerns, a lot of uncertainty, that means dollars in
    a bad way and so being able to work on the Kentucky legislation
    to provide the framework of when an employer is and is not
    obligated to provide accommodations was extremely significant.
    Like I said, in my testimony earlier, particularly for small to
    midsized businesses that can't afford a robust H.R. department
    or a large legal counsel, our people just want to run their
    businesses and so being able to work on the Kentucky
    legislation with our general assembly to define the undue
    hardship was extremely significant because we are talking about
    providing a stool. Are we talking about a $4,000? No we are
    not. We are talking about providing access to water so having a
    water bottle at a station. These are low cost reasonable
    accommodations. And guess what? They are temporary. And so when
    we were able to message that, not only to law makers but also
    the business community. You know, we've got the feedback, we're
    sort of already doing this because we want to do the right
    thing as a business community but if we can get it so framework
    and state statute to clearly define when we are or are not
    obligated to do these things, that's a welcomed addition to
    Kentucky law.
        Ms. Lee. Thank you. You also highlighted the economic
    benefits of helping women remain in the workforce and the
    benefits of employers when women are able to continue to work
    safely. How is ensuring pregnant workers having reasonable
    accommodations a tool to increase women's labor participation
    and what does that mean for the economic outcomes not just to
    both businesses but also their employees?
        Ms. Wilbur. So in Kentucky, unfortunately we have one of
    the lowest workforce participation rates among women and when
    we looked at the population that are currently in the labor
    force, we know that over 58 percent of them are of childbearing
    age so these are conversations that are happening already and
    so we ask ourselves, particularly as a chamber of commerce, if
    one of our top priorities and initiatives that we are hearing
    from the business community is that talent pipeline, workforce
    development and talent attraction. We need to have certainty in
    statutes to allow employers to know when they are or are not
    obligated to provide these accommodations but also to ensure
    that women that are pregnant or new mothers that want to work
    are able to work and so we think that this was a reasonable
    law, particularly at the federal level to provide the
    uniformity and clarity across the board is significant,
    particularly for our chamber of commerce or a bi-state chamber
    of commerce. We represent 5 counties in southern Indiana so
    being able to have that clarity across the board is
    significant.
        Ms. Lee. Thank you. My time is up. I yield back, thank you.
        Chairwoman Bonamici. Thank you. I now recognize
    representative Johnson from South Dakota for five minutes for
    your questions.
        Mr. Johnson. I want to start by thanking everybody,
    including some of my colleagues for sharing some of their
    stories. I think it's a good learning opportunity for a lot of
    us to better understand what issues can be addressed in the
    modern workplace. Ms. McLaughlin, there will be times when some
    employees will be unable to perform the essential duties of
    their job even after reasonable accommodation. Under H.R. 2694,
    what are the employers' obligations in that situation?
        Ms. McLaughlin. Well you just don't really know because
    essential functions is not a term in the bill so it is very
    unclear if somebody cannot perform their job even with the
    accommodation, what should happen. Is it as situation where
    there's a mandate similar to the ADA where the accommodation of
    last resort under the ADA is job reassignment and if you're
    reassigned to a job that pays less or pay is less or is it that
    you do put somebody out on leave or do you have to make work
    for that individual? And many employers I work with don't have
    make work. That's what we call light duty sometimes, removing
    essential functions. We try to assist somebody to perform their
    essential functions but sometimes they are just unable to even
    with the accommodation. It's just not anywhere in this bill and
    needs to be further clarified, including some of those things
    that I just talked about, job reassignment, putting somebody on
    leave.
        Mr. Johnson. So I wanted to feed back to you what I think I
    have heard. The ADA has a clear and easier to understand set of
    accommodation processes. This bill lacks that, is that right?
        Ms. McLaughlin. That's correct.
        Mr. Johnson. So, you ran through some options under the
    ADA. I just want to make sure that you understand them. So
    there could be, of course, reasonable accommodations is sort of
    the first tier among things that can be done there would be
    reassignment if reasonable accommodation at the current set of
    job duties doesn't work is sort of the next option,
    reassignment?
        Ms. McLaughlin. That's always the accommodation of last
    resort under the ADA. The goal is to keep somebody in their
    position.
        Mr. Johnson. But does leave come after that, then?
        Ms. McLaughlin. The way I would tier it is can we
    accommodate, if not we try to reassign if there is an open job
    and the individual is otherwise qualified for the job and then
    if neither of those two work, it would be leave.
        Mr. Johnson. There has been some testimony today regarding
    the loss of benefits, if somebody was on FMLA. What is the
    legal framework there look like?
        Ms. McLaughlin. So under the FMLA, you have 12 weeks of job
    protection when you go out on leave and there is a requirement
    that the individual's health insurance needs to remain in
    effect for the 12 weeks that the individual is on leave which
    could be a continuous leave or could be an intermittent leave.
        Mr. Johnson. Is there any--after that 12 week period, there
    is no job protection. Sounds as though there is no particular
    benefit protection either?
        Ms. McLaughlin. That's correct, not under the FMLA.
        Mr. Johnson. There would be a COBRA opportunity, I assume?
        Ms. McLaughlin. Yes. So there could be a COBRA triggering
    event. Many employers I work with would just continue to have
    the individual's health insurance remain in effect as if they
    were actively employed but that's not a legal requirement.
        Mr. Johnson. I don't want to put words in your mouth, Ms.
    McLaughlin but I get the sense that you are concerned about--
    you said some of this, but you are concerned about the lack of
    definition with some of the terms and the likely higher rates
    of litigation that would trigger. Am I saying that right?
        Ms. McLaughlin. You are. I think any time in a law that
    things are unclear, then people fight about it, right? People
    bring claims and we want to avoid that.
        Mr. Johnson. Thank you very much. Madam Chair, I yield
    back.
        Chairwoman Bonamici. Thank you, I now recognize the
    Chairman of the full Education Labor committee, Congressman
    Scott from Virginia for five minutes for your questions.
        Mr. Scott. Thank you, Madam Chair. Ms. Bakst, under present
    law, different workers are treated differently. For example, if
    one employer makes an accommodation to a similarly situated
    worker but the next employer does not provide that same
    accommodation, under present law, do the pregnant women have
    different rights to the accommodation?
        Ms. Bakst. Right now we are in a world where many employers
    have clear policies, provide accommodations for workers with
    disabilities, workers with on the job injuries and other
    scenarios but yet pregnant workers aren't offered, afforded,
    those accommodation protections so we are in a world where
    pregnant workers are not achieving most favored nation status;
    they are achieving least favorite nation status. They are being
    left out, unprotected and denied the equal opportunity that the
    Pregnancy Discrimination Act intended when the law was enacted
    to open doors for pregnant workers and ensure fairness and a
    level playing field.
        Mr. Scott. Under the Young decision, if you have a
    similarly situated employee, then you would get the same
    accommodation that employee got, is that right?
        Ms. Bakst. Well if you are similarly situated then you
    have--it's a multi-step evidentiary burden that a pregnant
    worker has to prove, and an employer has his showing and then
    the plaintiff has another showing. I mean the point with Young
    is that a pregnant worker needs to produce evidence of
    intentional discrimination in order to get a basic
    accommodation like a stool, a water bottle, an extra bathroom
    break to prevent a urinary tract infection. That's outrageous.
        Mr. Scott. And how does this work if there are no similar
    employees?
        Ms. Bakst. Well they lose because not only does it say you
    need to provide a comparator but if you, yourself just need,
    which is often the case of workers that we hear from at A
    Better Balance, they don't have a comparator, they may be new
    to the job. For low wage women, they don't have full access to
    their company policies often if there are any that they are
    willing to share with their workers and so what that means is
    that they can't point to a comparator and you know, they just
    need their own medically necessary accommodation and they are
    running against the clock to get one and they are out of luck.
        They often find themselves out of luck.
        Mr. Scott. And does the Americans with Disabilities Act
    require you to find a similarly situated employee?
        Ms. Bakst. No. So the Americans with Disabilities Act
    bypasses this arduous journey of proof and simply says you are
    entitled to a reasonable accommodation absent undue hardship to
    the employer. The law requires a good faith interactive process
    to figure out if you can make it work and if you can't, it's an
    undue hardship. That is the standard.
        Mr. Scott. How long has the Americans with Disabilities Act
    been around?
        Ms. Bakst. Since 1990 and amended in 2008 with bipartisan
    support.
        Mr. Scott. And has this been a very complicated process for
    people to work with? When you say reasonable accommodation?
        Ms. Bakst. Well in all the states that we have worked with
    and legislators, everybody says that this is a familiar--this
    is familiar, this is going to provide clarity for H.R. because
    they know what reasonable accommodations and undue hardships
    mean. They are already doing this in the ADA context.
        Mr. Scott. If someone is unable to perform the essential
    elements of the job, even with an accommodation, what happens?
        Ms. Bakst. Well if someone is unable to perform these under
    the Pregnancy Discrimination Act--under PWFA or--
        Mr. Scott. Under present law.
        Ms. Bakst. Under the Americans with Disabilities Act?
        Mr. Scott. Right.
        Ms. Bakst. If someone is unable to perform the essential
    functions of their job, they are not deemed qualified and they
    are typically put out on leave.
        Mr. Scott. Ms. Wilbur, can you remind us what the value is
    of having one Federal Standard? You have a law in Kentucky, a
    different law in Ohio. What would be the value of one federal
    standard?
        Ms. Wilbur. I mean we work in a global economy. Louisville,
    where we are based, is very fortunate to have multi state
    businesses and corporate headquarters based in our region and
    so being able to have that uniformity at the federal level is
    significant. Yes, we've made gains in the commonwealth of
    Kentucky and GLI is committed to working on similar legislation
    in the Hoosier state, right across the river, which we cover 5
    counties in southern Indiana. You know, there are 27 versions
    that are out there. 27 states that have a version of this and
    so employers, the businesses that I represent that have that
    multi state presence--federal uniformity and clarity is
    significant so we don't have to guess in piece by piece in all
    the states.
        Mr. Scott. Thank you. Madam Chair, I ask you--a statement
    for the record submitted by the March of Dimes in support of
    the legislation be introduced.
        Chairwoman Bonamici. Without objection.
        Mr. Scott. Thank you.
        Chairwoman Bonamici. I now recognize the Ranking Member of
    the subcommittee, Mr. Comer from Kentucky for five minutes for
    your questions.
        Mr. Comer. Well thank you and Ms. McLaughlin, I certainly
    concur with what Chairwoman Foxx said. We all want pregnant
    workers to be treated fairly by their employers and we support
    vigorous enforcement of the pregnancy discrimination act and
    the Americans with Disabilities Act.
        In your experience, do employers have policies to provide
    reasonable accommodations to pregnant workers?
        Ms. McLaughlin. So many employers that I work with have
    extended their reasonable accommodation policy utilized for the
    ADA to pregnant workers using the same framework under the ADA
    for the pregnancy accommodations.
        Mr. Comer. What approach do employers take when a pregnant
    worker seeks an accommodation?
        Ms. McLaughlin. So really it does mirror the ADA so there
    is a request for an accommodation and the interactive process
    begins. There is the ability under ADA and I would assume it
    should be also under this bill to have medical information with
    respect to the condition which wouldn't really be necessary
    with pregnancy but more so what accommodation is needed and to
    work through whether the accommodation can be put in place
    absent undue hardship so it's a dialogue between H.R. and the
    individual as well as the healthcare provider.
        Mr. Comer. Ms. McLaughlin, in your testimony, you noted
    that a careful balance was struck in the ADA between the right
    to workers with disabilities and the recognition that employers
    cannot remedy every situation that arises. Does the federal
    framework proposed by H.R. 2694 strike a similar careful
    balance?
        Ms. McLaughlin. I mean I think it's very difficult to tell
    frankly because in my opinion there are so many terms that are
    critical that are missing or not well defined, so I get back to
    the known limitations. We can't tell if a balance is struck
    like the ADA was struck--a balance was struck between whether
    the law covers anything and everything or it doesn't. it's
    simply not clear from the law as it's written.
        Mr. Comer. What provisions of this proposal should we look
    at to ensure there is that balance?
        Ms. McLaughlin. I mean I could tick them off here. It would
    be known limitations definition, it would be essential
    functions, it would be helpful to know if somebody can't
    perform their essential functions, even with the accommodation,
    does it mirror the ADA with respect to job reassignment and
    then leave, the direct threat standard, the qualification
    standard, some of those very key terms under the ADA would be
    very helpful to be in this bill so that there is clarity for
    everyone.
        Mr. Comer. Ms. McLaughlin, the EEOC states an enforcement
    guidance on pregnancy discrimination that the ADA can apply to
    pregnancy related impairments that are temporary, do you agree?
        Ms. McLaughlin. Yes.
        Mr. Comer. Does the ADA as amended in 2008 apply to
    temporary impairments?
        Ms. McLaughlin. It absolutely does and in fact there is a
    regulation that states that impairments lasting fewer than six
    months can be disabilities. The reason that was put in there
    very specifically was because there was some other language in
    the Act about regarded as disabilities that made it sound like
    that was six months and above so this particular regulation to
    me makes it very clear that temporary impairments can be
    disabilities.
        Mr. Comer. Okay. My last question. Ms. McLaughlin, as my
    friend Iris Wilbur stated, Kentucky recently enacted the
    Pregnant Workers Act to provide explicit protections for
    pregnant workers, are you familiar with the Kentucky bill?
        Ms. McLaughlin. I am. I have read it.
        Mr. Comer. You are? Are there differences between the
    Kentucky law and this proposal?
        Ms. McLaughlin. There are. The Kentucky law references the
    employee's own limitations relating to her pregnancy so it's a
    little different but it does provide specific examples as to
    what reasonable accommodations should be and I think most
    importantly, it fleshes out undue hardship and states that a
    duration of the requested accommodation may be a factor to
    consider as well as whether similar accommodations have been
    made to non-pregnant workers. So it has many more definitions
    built out in it.
        Mr. Comer. Well I really appreciate the testimony. Madam
    Chair, I appreciate the hearing today and I think that a lot of
    useful information has been retrieved from this. I look forward
    to working to ensure that all pregnant women are protected in
    the workforce. With that, I yield back.
        Chairwoman Bonamici. Thank you very much, Mr. Ranking
    Member. I now recognize--we are moving to the Members who are
    here who are not on the committee and I am pleased to recognize
    Congresswoman McBath from Georgia for five minutes for your
    questions.
        Ms. McBath. Thank you so much, Madam Chairwoman and thank
    you to all the witnesses that are here today. I myself, having
    been a flight attendant for 30 years, before I came to
    Congress, I do understand specifics about workplace safety and
    I can tell you having worked in that industry, there are no
    particular safety measures put in place for flight attendants
    that are pregnant.
        I myself continued to fly. While I was pregnant--after,
    however, three miscarriages and a fetal demise, my doctor took
    it upon herself to say ``stay home. You can no longer work.''
    And I was then placed on short term disability but there are no
    specific guidelines giving to pregnant women, pregnant workers
    in the airline industry that I am completely aware of, but
    women shouldn't have to choose between a healthy pregnancy and
    a paycheck.
        And almost 64 percent of American women are the primary,
    sole or co-breadwinners in their families but right now women
    can essentially be fired for being pregnant. The Pregnant
    Workers Fairness Act will ensure that the health of our women
    and their babies does not come at the expense of economic
    activity or economic security. This issue is especially
    pressing for low income women as it was mentioned, many of whom
    work on their feet in physically demanding jobs and cannot
    afford any lost wages.
        27 states have already passed laws that require certain
    employers to provide accommodations to pregnant women and it's
    time for federal action that guarantees all pregnant women are
    protected from discrimination. We all want to support working
    mothers. I think that's been established here today. This is a
    bipartisan proposal that protects pregnant women by allowing
    them simple accommodations. Accommodations that will make our
    women safer and their children healthier.
        I do have here a letter from leading private sector
    employers in support of this legislation and I ask unanimous
    consent that this letter be submitted for the record.
        Chairwoman Bonamici. Without objection.
        Ms. McBath. Thank you. Ms. Wilbur, my question is for you
    and thank you so much for your testimony today. I believe that
    clarity in the law is good for both employers and for workers.
    Providing these protections is not only morally right but it
    makes good business sense, so I'd like to talk a little bit
    about the business of this Act.
        How would federal legislation provide legal certainty and
    decreased legal fees for smaller and midsized employers that
    may not have legal departments?
        Ms. Wilbur. Thank you for your question. Yes, so
    employers--companies of all sizes across the board demand
    clarity because as you mentioned in your question, when we have
    uncertainty in the market and the workplace, that means dollars
    for businesses and that's not in a good way. And so being able
    to have that clarity and how to handle situations involving
    pregnancy, child birth and related medical conditions is
    essential.
        Many employers, people that run small midsized businesses
    want to focus on making investments in their companies. Most
    are not experts on dealing with conditions related to pregnancy
    so having this guidance where it is treated separately from the
    ADA--this legislation is separate from the ADA for that
    particular reason is important. That's why states like Kentucky
    have stepped up to put within state statute clarity and will
    continue and remain committed to working other states to do
    that as well but hoping for federal legislation to step in to
    provide that clarity across the board for all states but for
    us, for GLI, we worked on this issue. We learned that there is
    data showing. That at least two states that have implemented
    state law have not seen increases in litigation cost or
    litigation filings. They've actually seen decreases. Kentucky
    just passed the law this Spring and it became official law over
    the Summer and has now implemented. Still fairly new but the
    sky has not fallen. We haven't seen sort of an overrun of cases
    being filed or unreasonable pregnancy accommodations being
    requested in Kentucky workplaces so that's why we are confident
    and fully support the Pregnant Workers Fairness Act.
        Ms. McBath. Thank you and I have one more question for you.
    How will the Pregnant Workers Fairness Act help to reduce
    litigation?
        Ms. Wilbur. So for the very--just as I mentioned, being
    able to have that clarity so employers know when they are and
    are not obligated to provide reasonable accommodations. The
    Federal law helps provide that framework. Employers are very
    familiar with ADA as we mentioned and have discussed today and
    so being able to lean on the undue hardship clause in
    particular is significant for employers because at the end of
    the day, these accommodations are temporary so we are talking
    about a bottle of water at their work station, at stool to sit
    on and so when employers know what that means, those standards,
    those reasonable flexible standards, we are confident that this
    will reduce litigation.
        Ms. McBath. Thank you very much and I am out of time.
        Chairwoman Bonamici. Thank you. I now recognize another
    Member of the full committee, Ms. Underwood from Illinois for
    five minutes for your questions.
        Ms. Underwood. Thank you, Madam Chair for calling this
    important hearing and thank you to all of our witnesses for
    joining us today. It's been 41 years since the Pregnancy
    Discrimination Act of 1978 became law. Despite its passage,
    women today continue to face discrimination and unfair
    treatment at work due to pregnancy.
        Women are denied access to reasonable accommodations,
    forced to continue working under conditions that threaten their
    health or their pregnancy and they can even lose their jobs.
    Now I am a nurse, so I feel like it's really critical that we
    center today's discussion around the effects that pregnancy
    discrimination has on the health of the woman, her family and
    her pregnancy.
        So Ms. Bakst, what are some of the physical requirements at
    work that pregnant women have been subject to?
        Ms. Bakst. Some of the physical requirements?
        Ms. Underwood. Mm-hmm.
        Ms. Bakst. Can you clarify?
        Ms. Underwood. Well we certainly have seen some allegations
    that people are not being given like stools and--
        Ms. Bakst. Like what type of accommodations to pregnant
    workers need?
        Ms. Underwood. That's right.
        Ms. Bakst. So typical accommodations as we've heard,
    include, you know, more frequent restroom breaks, some
    modification of a work schedule temporarily, light duty, a
    water bottle. These are some of the most common workplace
    accommodations that pregnant workers need to prevent further
    complications down the roads. So those are the most common
    types and again, I just want to say that this is an interactive
    process. Undue hardship exists if those accommodations are not
    available but what we are really talking about are temporary de
    minimis accommodations.
        Ms. Underwood. And what about the mental health stressors
    that pregnancy discrimination can cause a woman and her family.
    Can you tell us anything about those?
        Ms. Bakst. Absolutely. I mean we have heard from so many
    women and I really bring those women here to this forum today
    who have suffered profound emotional stress from being forced
    off the job and worrying about how they are going to put food
    on the table, feed their families, stay afloat and sink into a
    poverty hole that they cannot climb out of and then they become
    mothers and find an extraordinarily difficult time trying to
    get rehired in an already pretty brutal job market and we
    wonder--and this is really a key trigger--a really important
    factor in the gender wage gap and so ensuring that women, for
    their own health, for the health of their pregnancy, can stay
    attached to the workforce and earn critical income is
    absolutely essential.
        Ms. Underwood. So today women make up about half of the
    workforce, 71 percent of mothers actually work outside the
    home. Women are often crucial in families' economic security,
    according to the National Women's Law Center, 42 percent of
    working mothers were their families' primary breadwinner. And
    so you said that there is certainly an impact on the gender
    wage gap. Were there other economic impacts, Ms. Bakst, that
    you would like to share with the committee today?
        Ms. Bakst. Well, I mean it exacerbates economic inequality
    as a whole. I mean these are disproportionately low-income
    women. I want to make the point on the FMLA. You talked--Ms.
    McLaughlin mentioned that the FMLA protects--provides some
    protection. We need to be clear that most of the women that we
    are talking about are not covered by the FMLA because the FMLA
    mostly covers you know, workers in higher wage positions. 40
    percent of workers are not covered by that law and these are
    disproportionately low-income women and those are unpaid jobs.
    Unpaid regardless and so we--but if you are lucky enough, we
    hadn't heard from women who are lucky enough to be covered by
    the FMLA but when they are forced out on FMLA leave, they are
    often forced out, forced to use up their FMLA leave, whatever
    they have, before they give birth and then what?
        Then either they're fired because they have no additional
    time or they have no time to recover from childbirth and no
    time to establish breastfeeding. It's just--it becomes really
    impossible to be able to support themselves and their families
    without risking their economic security.
        Ms. Underwood. Wow. So that sounds like an additional level
    of stress that many of these mothers are facing.
        Ms. Bakst. Absolutely.
        Ms. Underwood. So we know that there are health
    complications as a result of these many physical stressors and
    mental health stressors, are you familiar with any health
    complications if pregnant workers are not provided these
    accommodations and have any women that you've worked with
    specifically faced those health risks?
        Ms. Bakst. Yeah, I mean we have cited a couple of--oral
    testimony and I have my written testimony as well really talked
    about what kind of research is out there that connects a lack
    of accommodation and health complications and a lot of those
    situations could simply be avoided and prevented if we
    guaranteed an explicit right to accommodations that's currently
    available to workers with disabilities and so it is just
    essential that we do everything to ensure that for women so
    they don't have to suffer those long term health consequences
    for themselves.
        Ms. Underwood. Well we know that this is a potential public
    health crisis if we don't pass this Pregnant Workers Fairness
    Act. Madame Chair, I ask unanimous consent to enter a letter
    from healthcare providers and public health experts in support
    of the Pregnant Workers Fairness Act into the record.
        Chairwoman Bonamici. Without objection.
        Ms. Underwood. Thank you so much for consideration of this
    important bill today. I yield back.
        Chairwoman Bonamici. Thank you and I now recognize Mr.
    Cohen from Tennessee for five minutes for your questions.
        Ms. Cohen. Thank you, Madame Chair. Ms. McLaughlin, you
    have expressed concern that the Pregnant Workers Fairness Act
    application of the undue hardship provision might limit the
    employer's options and in your written testimony you state
    ``but section 2(4) of the bill suggests that the employer
    cannot place the worker on leave if an accommodation exists
    that would address the known limitation, even if that
    accommodation results in undue hardship.''
        Would you agree that if pregnant employees placed on leave
    as an accommodation at the employer chooses, that it should be
    paid leave?
        Ms. McLaughlin. Well, that would depend on the financial
    resources of the employer. Some employers can afford paid leave
    and others cannot.
        Ms. Cohen. Do you believe that a woman who has a job who is
    pregnant who is doing the most essential thing on this earth
    which is reproduce and keep the human species going. Without
    that, none of us would be here. Do you believe that woman
    shouldn't get paid leave if the employer under a law or rule
    that you support suggested instead of doing an accommodation on
    her work, that the accommodation that best suits that employer
    is to put them on leave that they should not be paid?
        Ms. McLaughlin. Well I guess the way I was interpreting
    your original question was should the employer have to pay for
    the leave. I would suggest that if Congress feels that those
    types of leaves should be paid, and I know there have been
    introductions of bills in the past that to me is something that
    Congress should mandate, rather than imposing the duty to pay
    on the employer.
        Ms. Cohen. What if Congress imposes the duty on the
    employer? Bottom line is this question. Don't you think the
    woman should be paid?
        Ms. McLaughlin. I don't really think that my personal
    opinion is relevant here--
        Ms. Cohen. But your opinion is that the accommodation
    provision is wrong because it doesn't allow the employer to put
    the person on leave. If they put them on leave and they don't
    pay them, that's not an accommodation. That's a penalty.
        Ms. McLaughlin. And at the end of the day, the employer
    needs to run its business too and also accommodate pregnant
    workers or disabled workers and there are circumstances that
    leave is going to be unpaid. If the government were to
    intervene and mandate paid leave for employers, whether it
    would be some sort of subsidy through unemployment, through the
    employer having to pay but I really think that's something that
    needs to be legislated.
        Ms. Cohen. Thank you, Ms. McLaughlin. In 2014, Memphis has
    a plant that XPO ran. It was the subject of a major story in
    the New York Times concerning work conditions there and
    particularly pregnant women which I would like to have entered
    into the record.
        Chairwoman Bonamici. Without objection.
        Ms. Cohen. Thank you. One of the former employees, Ms.
    Tasha Morelle brought her doctor's note instructing that she do
    no heavy lifting. The supervisor did not accommodate the
    doctor's note nor reassign her to a different area. Ms. Morelle
    continued doing her assigned work of lifting boxes weighing
    almost 50 pounds. As a result, she suffered a miscarriage.
        Currently, employers can arbitrarily determine what is an
    unnecessary burden to accommodate. Ms. Bakst, what--how would
    the undue hardship standard under the Pregnant Workers Fairness
    Act come into play in this situation?
        Ms. Bakst. Absolutely. So, Tash Morelle is actually A
    Better Balance client and she suffered profound health
    consequences as a result of being denied an accommodation and
    the way it would work would simply be that the employer would
    try to see if there was an alternative way to honor her
    doctor's notes or her restriction and if it was not reasonable
    or it would constitute an undue hardship, then the employer
    wouldn't need to accommodate her but what is happening is that
    women like Tasha are being forced off the job or forced to risk
    their health because employers are not simply engaging in that
    good faith interactive process that they are doing for workers
    with disabilities and so--and I just want to make the point, if
    I may back to that Walberg bill because any idea that bill
    would make the situation better is just completely untrue
    because once again, the bill requires pregnant workers to point
    to other workers to find a comparator but that basically pushes
    the comparative framework even in the wrong direction because
    it imports new definitions of who an appropriate comparator is
    from other statutes and so we have to--we need a clear standard
    for pregnant women so they can follow their doctors orders,
    remain healthy and on the job. If there is an accommodation,
    they can provide it. If it's an undue hardship, they don't have
    to, but they should have to jump through hoops and prove
    discrimination and wait until their kid is in preschool, maybe
    middle school until they find out if they can be accommodated.
    It's too late. The economic consequences are too profound, the
    health consequences are too profound.
        Ms. Cohen. And if I may, and I am a waiver, if the
    accommodation was leave, would you agree it should be paid
    leave?
        Ms. Bakst. Well, we at A Better Balance and my colleagues
    and advocates in the community strongly believe in paid family
    leave and so I think that every woman in America, every parent,
    every caregiver, everyone should have access to paid family and
    medical leave, yes.
        Ms. Cohen. Thank you and I yield back and appreciate the
    committee's indulgence.
        Chairwoman Bonamici. Thank you so much. I remind my
    colleagues that pursuant to committee practice, materials for
    submission for the hearing record must be submitted to the
    Committee Clerk within 14 days following the last day of the
    hearing, preferable in Microsoft Word format. The materials
    submitted must address the subject matter of the hearing. Only
    a Member of the committee or invited witness may submit
    materials for inclusion in the hearing record. Documents are
    limited to 50 pages each. Documents longer than 50 pages will
    be incorporated into the record via an internet link that you
    must provide to the Committee Clerk within the required
    timeframe but please recognize that years from now the link may
    not work.
        Again, I want to thank the witnesses for their
    participation today. What we have heard is very valuable.
    Members of the committee may have some additional questions for
    you. We ask the witnesses to please respond to those questions
    in writing. The hearing record will be held open for 14 days to
    receive those responses.
        I remind my colleagues that pursuant to committee practice,
    witness questions for the hearing record must be submitted to
    the Majority Committee Staff or Committee Clerk within seven
    days and the questions submitted must address the subject
    matter of the hearing.
        And we have some closing statements. I recognize the
    distinguished Ranking Member for his closing statement.
        Mr. Comer. Thank you, Madam Chair and I again want to thank
    all the witnesses for being here today. I think it's the goal
    of both parties in Congress to ensure that pregnant workers are
    protected in the workplace and I know on behalf of the Minority
    conference, we are going to do everything in our ability to see
    that every pregnant worker is protected in the workplace and
    hopefully we can work together as this bill moves forward and
    see that objective is achieved. With that, Madam Chair, I yield
    back.
        Chairwoman Bonamici. Thank you so much. I now recognize
    myself for the purpose of making a closing statement. Thank you
    again to the witnesses for being here. I want to add that I am
    very glad that everyone--every Member of the committee who has
    expressed an opinion agrees that pregnant workers should be
    protected in the workplace. I think that's a very positive step
    and your compelling testimony here today confirms that far too
    many pregnant workers are still denied access to reasonable
    workplace accommodations despite more than four decades of
    Federal law providing for equal treatment on the job and as the
    witnesses explained, workplace accommodations can be simple,
    inexpensive, not unlike the accommodations already required for
    individuals covered under the Americans with Disabilities Act.
    Some of the accommodations discussed today included simply
    providing seating and water at work sites, allowing additional
    break times to use the restroom.
        Pregnant workers should not have to choose between a
    healthy pregnancy and financial stability. This bipartisan
    Pregnant Workers Fairness Act is our opportunity to fulfill the
    promise of the Pregnancy Discrimination Act and protect the
    health, wellbeing, and economic security of all pregnant and
    parenting workers and their families.
        By clarifying the right of pregnant workers to fair
    treatment in the workplace, this legislation will finally
    guarantee pregnant workers the accommodation they need without
    fear of facing discrimination or retaliation and without
    waiting months or years to find out if an accommodation is
    going to be provided.
        This bill focuses on prevention and accommodation and that
    is a positive step and again, this is not a partisan issue.
    Several state legislators across the country, including in the
    Ranking Member state of Kentucky and my home state of Oregon
    have already passed bipartisan legislation combating
    discrimination against pregnant workers and they have found
    that the certainty is good not just for the pregnant workers
    but also for businesses.
        I hope that every committee member here today can agree
    that Congress must act now in a bipartisan manner to provide
    all pregnant workers access to workplace gender equity, healthy
    pregnancies, financial security regardless of where they live.
    I look forward to working with my colleagues to pass the
    Pregnant Workers Fairness Act and take a long overdue step on
    behalf of pregnant workers and their families. And with no
    further business, without objection, the committee stands
    adjourned.
        [Additional submissions by Chairwoman Bonamici follow:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
        [Ms. Wilbur response to questions submitted for the record
    follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        [Whereupon, at 12:06 p.m., the subcommittee was adjourned.]

                                [all]