[Congressional Record Volume 168, Number 202 (Tuesday, December 27, 2022)]
[Extensions of Remarks]
[Pages E1361-E1362]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




PROVIDING FOR CONSIDERATION OF THE SENATE AMENDMENT TO HOUSE AMENDMENT 
TO SENATE AMENDMENT TO H.R. 2617, AGRICULTURE, RURAL DEVELOPMENT, FOOD 
AND DRUG ADMINISTRATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 2023; 
  RELATING TO CONSIDERATION OF SENATE AMENDMENT TO H.R. 4373, FURTHER 
ADDITIONAL CONTINUING APPROPRIATIONS AND EXTENSIONS ACT, 2023; RELATING 
TO CONSIDERATION OF SENATE AMENDMENTS TO H.R. 1082, SAMI'S LAW; AND FOR 
                             OTHER PURPOSES

                                 ______
                                 

                               speech of

                     HON. ROBERT C. ``BOBBY'' SCOTT

                              of virginia

                    in the house of representatives

                       Tuesday, December 23, 2022

  Mr. SCOTT of Virginia. Mr. Speaker, I intend to vote yes on the end-
of-year funding bill. However, I object to a provision added by the 
Senate to the Pregnant Workers Fairness Act (PWFA). The PWFA ensures 
that pregnant workers who work for employers with 15 or more employees 
have access to reasonable accommodations in the workplace for 
pregnancy, childbirth, and related medical conditions.
  Pregnant workers are just as capable as their colleagues, but if they 
are denied reasonable accommodations, such as water or rest breaks, 
some workers face increased health risks including premature births, 
pregnancy complications, and even miscarriage. The purpose of the 
Pregnant Workers Fairness Act (PWFA) is to ensure that pregnant workers 
do not have to make the difficult choice between financial security and 
a safe and healthy pregnancy. Despite the purpose of the bill--which is 
to expand the accommodations for pregnancy, childbirth, or related 
medical conditions--language was added by the Senate that may undermine 
the bill's purpose.
  When the Senate finally considered the PWFA on December 8, 2022, it 
was after languishing in that chamber for over one and one-half years. 
It should be noted that PWFA passed the House of Representatives by a 
vote of 315 to 101, on May 14, 2021, with over 230 organizations 
ranging from the business community to religious organizations and 
other groups. Not a single one of these organizations demanded language 
to exempt employers from providing accommodations to pregnant and other 
workers with related conditions on the basis of the religious views of 
the employers.

[[Page E1362]]

  Moreover, when the Senate debated to take up the PWFA by unanimous 
consent consideration on December 8, 2022, the text of the bill did not 
contain the religious exemption language. Confidently, Senator Casey of 
Pennsylvania declared that the bill ``when it comes to a final vote, 
will have at least 60 votes in the Senate, if not more. I think it will 
be more than that.'' During the debate, Senator Tillis of North 
Carolina objected to the unanimous consent consideration of PWFA 
because it ``would give Federal bureaucrats at the EEOC authority to 
mandate that employers nationwide provide accommodations such as leave 
to obtain abortions on demand under the guise of a pregnancy-related 
condition.''
  Senator Cassidy of Louisiana rejected to that characterization of the 
bill and noted the support of the U.S. Conference of Catholic Bishops. 
Senator Cassidy read into the record the position of the Catholic 
Bishops:
       ``We believe that [this] version of the bill, read in light 
     of existing liberty protections, helps advance the [U.S. 
     Conference of Catholic Bishops'] goal of ensuring that no 
     woman ever feels forced to choose between her future and the 
     life of her child while protecting the conscience rights and 
     religious freedoms of employers.''
  Senator Cassidy went on to say that ``the pro-life position is to 
make an accommodation for that woman who has those needs so she can 
safely carry the baby to term.'' He further added that the PWFA passed 
the House with a bipartisan vote 315 and was adopted by the Senate HELP 
Committee with a bipartisan vote of 19-2, with the endorsement of the 
Chambers of Commerce and March of Dimes, among others.
  When Senator Tillis pressed for language regarding the religious 
entity exemption from section 702 of the Title VII of the Civil Rights 
Act of 1964 (Title VII), Senator Cassidy stressed that the Conference 
of Catholic Bishops endorsed this bill because the Title VII exemption 
was untouched by the PWFA. Senator Cassidy made clear that the bill 
does not touch Title VII's exemptions which allows, ``employers 
[pastors and ministers and Rabbis] to make employment decisions based 
on firmly held religious beliefs. This bill does not change this.''
  And yet, just days before the funding of the government runs out, the 
Senate inserted a ``Rule of Construction'' which incorporates the 
religious entity exemption from Title VII, countering the very points 
made just days earlier. The lack of legal analysis and evaluation of 
this Rule of Construction has given me pause and there is concern that 
this ``Rule of Construction'', may be interpreted to allow certain 
employers to deny pregnant workers reasonable accommodations based on 
the employers' religious beliefs. I object to adding this religious 
exemption to this bill for a number of reasons.
  First, this exemption is in direct contradiction with, and undermines 
the purpose of, the bill--by opening the door to discrimination against 
the very people we are trying to protect. When the House Education and 
Labor Committee marked up this bill on March 24, 2021, a similar 
amendment was offered by Mr. Fulcher of Idaho to exempt religious 
organizations from coverage under the bill. The amendment, which would 
have allowed religious organizations to deny workers reasonable 
accommodations under the law, was defeated by a vote of 20 Yeas and 27 
Nays. Specifically, it was the position of the Committee that this very 
language would open the door to employers seeking religious exemption.
  A witness testifying before the House Committee on Education and 
Labor, Dina Bakst, Co-Founder & Co-President from A Better Balance: The 
Work & Family Legal Center, testified that her organization had 
conducted a legal analysis of nearly 1,000 court cases invoking the 
Title VII religious exemption involving an employer objecting to 
providing pregnancy accommodations. Ms. Bakst said, ``from a legal 
standpoint, inserting an exemption for religious employers is simply 
extraneous and unnecessary.'' Further, Ms. Bakst testified that not 
only is the exemption ``already unnecessary'' but also that ``ample 
escape hatches already exist for religious employers.'' She added that 
``I would hope that most employers, especially those that are 
religious, would be amenable to providing such simple measures to their 
employees to safeguard their well-being.''
  Second, I object to adding this exemption because it is unnecessary. 
Religious employers are already afforded significant protections to 
exercise their religious beliefs under Supreme Court precedent and 
various federal laws including, for example, the ministerial exception, 
which provides certain religious employers a constitutionally 
recognized exemption to federal antidiscrimination laws and applies to 
employees who preach and teach the employer's religious tenets. 
Religious employers can also invoke the Religious Freedom Restoration 
Act of 1993, which requires that government action that substantially 
infringes on a person's exercise of religion serve a compelling 
government interest and be the least restrictive means to achieve that 
interest.
  Third, because the religious exemption language was hastily included 
in this bill by the Senate, there has not been any analysis for the 
record that examines the meaning and the long-term impact of its 
inclusion. For example, the ``Rule of Construction'' uses the term 
``religious employment,'' but this term is not defined in the bill nor 
is it included in the text of Section 702 of Title VII, which means 
that it may be interpreted in multiple ways by religious employers and 
the courts regardless of intent. Additionally, while the existing Title 
VII religious exemption is reserved for religious discrimination and 
the hiring of ``co-religionists,'' the Rule of Construction provision 
now applies the Title VII exemption to PWFA's requirements. It is 
unclear what the inclusion of such language pertaining to hiring means 
in a bill that is meant to require pregnancy-related accommodations. I 
am deeply concerned that it could mean that employers who qualify for 
the exemption are not required to accommodate pregnancy, childbirth, or 
related medical conditions, thereby authorizing a blanket exemption for 
religious employers. For example, would an employer now be able to use 
their religious viewpoint against a pregnant worker's single parent 
status, ``mixed-race'' relationship, ``mixed-religion'' union, IVF 
treatment, or same-sex relationship, etc.?
  My concern about the expansion of religious exemption to protective 
workplace discrimination and accommodation laws was underscored by the 
Supreme Court decision in the Burwell v. Hobby Lobby, Inc. case. In 
that decision, the Court concluded that a for-profit corporation could 
be considered a ``person'' under the Religious Freedom Restoration Act 
(RFRA) and therefore assert a religious objection to providing 
contraception coverage for their employees. In contrast, the religious 
exemption for qualifying employer under Title VII is narrow, afforded 
only to a ``religious corporation, association, educational 
institution, or society,'' and no court has ever upheld a for-profit 
organization to qualify for the exemption. Yet, in 2020, the Trump 
Administration finalized a rule for the Office of Federal Contract 
Compliance Programs opening the door to the religious exemption to some 
for-profits. Further, the EEOC under the Trump Administration approved, 
an updated Compliance Manual on Religious Discrimination attempts to 
stretch the exemption to some for-profits, noting that ``Title VII case 
law has not definitely addressed whether a for-profit corporation that 
satisfies the other factors can constitute a religious corporation 
under Title VII.'' By including the Rule of Construction in PWFA, we 
have injected uncertainty instead of affirming unequivocal protections 
for pregnant workers.
  It is also unclear how the religious exemption will be interpreted 
when read in conjunction with Section 7 of the bill, which provides 
that PWFA does not invalidate or limit state or local laws that provide 
equal or greater protection for pregnancy, childbirth, or related 
medical conditions. Adding the religious exemption could undermine this 
principle and result in these workers having less protections under 
relevant state or local laws.
  The fourth and final reason I object to this language is because just 
a year and a half ago, the House passed the PWFA, with a strong 
bipartisan vote of 315 Yeas to 101 Nays, without a religious exemption. 
The inclusion of this language by the Senate is unfortunate and, the 
repercussions may befelt by vulnerable workers we are supposed to 
protecting. Put plainly, the continued expansion of religious exemption 
turns the purpose of the law on its head. Instead of the law protecting 
employees from discrimination and the lack of accommodations, these 
religious exemptions are being used as to protect the employer's right 
to discriminate and deny basic accommodation. For these reasons, I 
strongly object to including a religious exemption under Section 7B, 
the Rule of Construction, in Pregnant Workers Fairness Act.
  Moreover, I am disappointed that numerous proposals that I have long-
championed--including the Child Abuse and Prevention and Treatment Act 
reauthorization, the Family Violence Prevention and Services Act 
reauthorization, the National Apprenticeship Act reauthorization, and a 
comprehensive Child Nutrition Reauthorization--have been left on the 
chopping block yet again. These proposals are among the many advanced 
under my leadership on the Education and Labor Committee that respond 
to the needs of America's students, workers, and families. To omit 
these proposals and others from the omnibus appropriations bill is a 
disservice to the American people.