[House Report 116-494]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-494
HOUSE OF REPRESENTATIVES
2d Session ) { Part 1
======================================================================
PREGNANT WORKERS FAIRNESS ACT
_______
September 8, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2694]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 2694) to eliminate discrimination and promote
women's health and economic security by ensuring reasonable
workplace accommodations for workers whose ability to perform
the functions of a job are limited by pregnancy, childbirth, or
a related medical condition, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 5
Committee Action................................................. 7
Committee Views.................................................. 11
Section-by-Section Analysis...................................... 32
Explanation of Amendments........................................ 35
Application of Law to the Legislative Branch..................... 35
Unfunded Mandate Statement....................................... 35
Earmark Statement................................................ 35
Roll Call Votes.................................................. 35
Statement of Performance Goals and Objectives.................... 38
Duplication of Federal Programs.................................. 38
Hearings......................................................... 38
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 38
New Budget Authority and CBO Cost Estimate....................... 38
Committee Cost Estimate.......................................... 39
Changes in Existing Law Made by the Bill, as Reported............ 39
Committee Correspondence......................................... 40
Minority Views................................................... 49
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Pregnant Workers Fairness Act''.
SEC. 2. NONDISCRIMINATION WITH REGARD TO REASONABLE ACCOMMODATIONS
RELATED TO PREGNANCY.
It shall be an unlawful employment practice for a covered entity to--
(1) not make reasonable accommodations to the known
limitations related to the pregnancy, childbirth, or related
medical conditions of a qualified employee, unless such covered
entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered
entity;
(2) require a qualified employee affected by pregnancy,
childbirth, or related medical conditions to accept an
accommodation other than any reasonable accommodation arrived
at through the interactive process referred to in section 5(7);
(3) deny employment opportunities to a qualified employee if
such denial is based on the need of the covered entity to make
reasonable accommodations to the known limitations related to
the pregnancy, childbirth, or related medical conditions of a
qualified employee;
(4) require a qualified employee to take leave, whether paid
or unpaid, if another reasonable accommodation can be provided
to the known limitations related to the pregnancy, childbirth,
or related medical conditions of a qualified employee; or
(5) take adverse action in terms, conditions, or privileges
of employment against a qualified employee on account of the
employee requesting or using a reasonable accommodation to the
known limitations related to the pregnancy, childbirth, or
related medical conditions of the employee.
SEC. 3. REMEDIES AND ENFORCEMENT.
(a) Employees Covered by Title VII of the Civil Rights Act of 1964.--
(1) In general.--The powers, remedies, and procedures
provided in sections 705, 706, 707, 709, 710, and 711 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the
Commission, the Attorney General, or any person alleging a
violation of title VII of such Act (42 U.S.C. 2000e et seq.)
shall be the powers, remedies, and procedures this Act provides
to the Commission, the Attorney General, or any person,
respectively, alleging an unlawful employment practice in
violation of this Act against an employee described in section
5(3)(A) except as provided in paragraphs (2) and (3) of this
subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this Act provides to the Commission,
the Attorney General, or any person alleging such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this Act provides to the Commission, the Attorney
General, or any person alleging such practice (not an
employment practice specifically excluded from coverage under
section 1977A(a)(1) of the Revised Statutes).
(b) Employees Covered by Congressional Accountability Act of 1995.--
(1) In general.--The powers, remedies, and procedures
provided in the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) to the Board (as defined in section 101 of
such Act (2 U.S.C. 1301)) or any person alleging a violation of
section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)) shall be
the powers, remedies, and procedures this Act provides to the
Board or any person, respectively, alleging an unlawful
employment practice in violation of this Act against an
employee described in section 5(3)(B), except as provided in
paragraphs (2) and (3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this Act provides to the Board or any
person alleging such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this Act provides to the Board or any person
alleging such practice (not an employment practice specifically
excluded from coverage under section 1977A(a)(1) of the Revised
Statutes).
(4) Other applicable provisions.--With respect to a claim
alleging a practice described in paragraph (1), title III of
the Congressional Accountability Act of 1995 (2 U.S.C. 1381 et
seq.) shall apply in the same manner as such title applies with
respect to a claim alleging a violation of section 201(a)(1) of
such Act (2 U.S.C. 1311(a)(1)).
(c) Employees Covered by Chapter 5 of Title 3, United States Code.--
(1) In general.--The powers, remedies, and procedures
provided in chapter 5 of title 3, United States Code, to the
President, the Commission, the Merit Systems Protection Board,
or any person alleging a violation of section 411(a)(1) of such
title shall be the powers, remedies, and procedures this Act
provides to the President, the Commission, the Board, or any
person, respectively, alleging an unlawful employment practice
in violation of this Act against an employee described in
section 5(3)(C), except as provided in paragraphs (2) and (3)
of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this Act provides to the President,
the Commission, the Board, or any person alleging such
practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this Act provides to the President, the Commission,
the Board, or any person alleging such practice (not an
employment practice specifically excluded from coverage under
section 1977A(a)(1) of the Revised Statutes).
(d) Employees Covered by Government Employee Rights Act of 1991.--
(1) In general.--The powers, remedies, and procedures
provided in sections 302 and 304 of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16b; 2000e-16c) to the
Commission or any person alleging a violation of section
302(a)(1) of such Act (42 U.S.C. 2000e-16b(a)(1)) shall be the
powers, remedies, and procedures this Act provides to the
Commission or any person, respectively, alleging an unlawful
employment practice in violation of this Act against an
employee described in section 5(3)(D), except as provided in
paragraphs (2) and (3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this Act provides to the Commission or
any person alleging such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this Act provides to the Commission or any person
alleging such practice (not an employment practice specifically
excluded from coverage under section 1977A(a)(1) of the Revised
Statutes).
(e) Employees Covered by Section 717 of the Civil Rights Act of
1964.--
(1) In general.--The powers, remedies, and procedures
provided in section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16) to the Commission, the Attorney General, the
Librarian of Congress, or any person alleging a violation of
that section shall be the powers, remedies, and procedures this
Act provides to the Commission, the Attorney General, the
Librarian of Congress, or any person, respectively, alleging an
unlawful employment practice in violation of this Act against
an employee described in section 5(3)(E), except as provided in
paragraphs (2) and (3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this Act provides to the Commission,
the Attorney General, the Librarian of Congress, or any person
alleging such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this Act provides to the Commission, the Attorney
General, the Librarian of Congress, or any person alleging such
practice (not an employment practice specifically excluded from
coverage under section 1977A(a)(1) of the Revised Statutes).
(f) Prohibition Against Retaliation.--
(1) In general.--No person shall discriminate against any
employee because such employee has opposed any act or practice
made unlawful by this Act or because such employee made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this Act.
(2) Prohibition against coercion.--It shall be unlawful to
coerce, intimidate, threaten, or interfere with any individual
in the exercise or enjoyment of, or on account of such
individual having exercised or enjoyed, or on account of such
individual having aided or encouraged any other individual in
the exercise or enjoyment of, any right granted or protected by
this Act.
(3) Remedy.--The remedies and procedures otherwise provided
for under this section shall be available to aggrieved
individuals with respect to violations of this subsection.
(g) Limitation.--Notwithstanding subsections (a)(3), (b)(3), (c)(3),
(d)(3), and (e)(3), if an unlawful employment practice involves the
provision of a reasonable accommodation pursuant to this Act or
regulations implementing this Act, damages may not be awarded under
section 1977A of the Revised Statutes (42 U.S.C. 1981a) if the covered
entity demonstrates good faith efforts, in consultation with the
employee with known limitations related to pregnancy, childbirth, or
related medical conditions who has informed the covered entity that
accommodation is needed, to identify and make a reasonable
accommodation that would provide such employee with an equally
effective opportunity and would not cause an undue hardship on the
operation of the covered entity.
SEC. 4. RULEMAKING.
Not later than 2 years after the date of enactment of this Act, the
Commission shall issue regulations in an accessible format in
accordance with subchapter II of chapter 5 of title 5, United States
Code, to carry out this Act. Such regulations shall provide examples of
reasonable accommodations addressing known limitations related to
pregnancy, childbirth, or related medical conditions.
SEC. 5. DEFINITIONS.
As used in this Act--
(1) the term ``Commission'' means the Equal Employment
Opportunity Commission;
(2) the term ``covered entity''--
(A) has the meaning given the term ``respondent'' in
section 701(n) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(n)); and
(B) includes--
(i) an employer, which means a person engaged
in industry affecting commerce who has 15 or
more employees as defined in section 701(b) of
title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e(b));
(ii) an employing office, as defined in
section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301) and section 411(c)
of title 3, United States Code;
(iii) an entity employing a State employee
described in section 304(a) of the Government
Employee Rights Act of 1991 (42 U.S.C. 2000e-
16c(a)); and
(iv) an entity to which section 717(a) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-
16(a)) applies;
(3) the term ``employee'' means--
(A) an employee (including an applicant), as defined
in section 701(f) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(f));
(B) a covered employee (including an applicant), as
defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301);
(C) a covered employee (including an applicant), as
defined in section 411(c) of title 3, United States
Code;
(D) a State employee (including an applicant)
described in section 304(a) of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16c(a)); or
(E) an employee (including an applicant) to which
section 717(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16(a)) applies;
(4) the term ``person'' has the meaning given such term in
section 701(a) of the Civil Rights Act of 1964 (42 U.S.C.
2000e(a));
(5) the term ``known limitation'' means physical or mental
condition related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions that the employee or
employee's representative has communicated to the employer
whether or not such condition meets the definition of
disability specified in section 3 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102);
(6) the term ``qualified employee'' means an employee or
applicant who, with or without reasonable accommodation, can
perform the essential functions of the employment position,
except that an employee or applicant shall be considered
qualified if--
(A) any inability to perform an essential function is
for a temporary period;
(B) the essential function could be performed in the
near future; and
(C) the inability to perform the essential function
can be reasonably accommodated; and
(7) the terms ``reasonable accommodation'' and ``undue
hardship'' have the meanings given such terms in section 101 of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12111)
and shall be construed as such terms are construed under such
Act and as set forth in the regulations required by this Act,
including with regard to the interactive process that will
typically be used to determine an appropriate reasonable
accommodation.
SEC. 6. WAIVER OF STATE IMMUNITY.
A State shall not be immune under the 11th Amendment to the
Constitution from an action in a Federal or State court of competent
jurisdiction for a violation of this Act. In any action against a State
for a violation of this Act, remedies (including remedies both at law
and in equity) are available for such a violation to the same extent as
such remedies are available for such a violation in an action against
any public or private entity other than a State.
SEC. 7. RELATIONSHIP TO OTHER LAWS.
Nothing in this Act shall be construed to invalidate or limit the
powers, remedies, and procedures under any Federal law or law of any
State or political subdivision of any State or jurisdiction that
provides greater or equal protection for individuals affected by
pregnancy, childbirth, or related medical conditions.
SEC. 8. SEVERABILITY.
If any provision of this Act or the application of that provision to
particular persons or circumstances is held invalid or found to be
unconstitutional, the remainder of this Act and the application of that
provision to other persons or circumstances shall not be affected.
Purpose and Summary
When Congress passed the Pregnancy Discrimination Act of
1978,\1\ which amended Title VII of the Civil Rights Act of
1964,\2\ its objective was to eradicate pregnancy
discrimination in the workplace and ensure that pregnant
workers were treated the same as their coworkers. Yet nearly 42
years after its passage, federal law still falls short of
guaranteeing that all pregnant workers have reasonable
workplace accommodations. H.R. 2694, the Pregnant Workers
Fairness Act, 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. When pregnant workers do not have
access to reasonable workplace accommodations, they are often
forced to choose between their financial security and a healthy
pregnancy. Ensuring that pregnant workers have access to
reasonable accommodations will promote the economic well-being
of working mothers and their families and promote healthy
pregnancies.
---------------------------------------------------------------------------
\1\42 U.S.C. Sec. 2000e(k).
\2\42 U.S.C. Sec. 2000e.
---------------------------------------------------------------------------
H.R. 2694, as amended in markup, has been endorsed by 1,000
Days, 9to5, 9to5 California, 9to5 Colorado, 9to5 Georgia, 9to5
Wisconsin, A Better Balance, Adobe, Advocates for Youth,
African American Ministers In Action, Alianza Nacional de
Campesinas, All-Options, Amalgamated Bank, American Association
of University Women (AAUW), American Civil Liberties Union
(ACLU), American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO), American Federation of State, County,
and Municipal Employees (AFSCME), American Federation of
Teachers (AFT), Asian Pacific American Labor Alliance,
Association of Maternal & Child Health Programs, Association of
Women's Health, Obstetric and Neonatal Nurses, Breastfeeding
Mother, Building Pathways, California Breastfeeding Coalition,
California Women's Law Center, California Work & Family
Coalition, Casa de Esperanza: National Latin@ Network for
Healthy Families and Communities, Center for Parental Leave
Leadership, Center for Public Policy Priorities, Center for
Reproductive Rights, Centro de Trabajadores Unidos (United
Workers Center), U.S. Chamber of Commerce, Child Care Law
Center, Chinese Progressive Association (San Francisco), Church
World Service, Citizen Action of NY, Center for Law and Social
Policy (CLASP), Clearinghouse on Women's Issues, Closing the
Women's Health Gap, Coalition on Human Needs, Coalition of
Labor Union Women, Coalition of Labor Union Women Philadelphia
Chapter, Communication Workers of America (CWA), Congregation
of Our Lady of the Good Shepherd, U.S. Provinces, DC Jobs with
Justice, Disciples Center for Public Witness, Economic Policy
Institute, EMC Strategies, Equal Pay Today, Equal Rights
Advocates, Family Equality, Family Values @ Work, Farmworker
Justice, Feminist Majority Foundation, Friends Committee on
National Legislation, Futures Without Violence, Gender Justice,
Hadassah, Healthy Work Campaign, Center for Social
Epidemiology, ICM Partners, In Our Own Voice: National Black
Women's Reproductive Justice Agenda, Indiana AFL-CIO, Indiana
Chapter of Unite Here Local 23, Indiana Institute for Working
Families, Interfaith Worker Justice, Jewish Women
International, Jobs With Justice, Justice for Migrant Women,
Kansas Breastfeeding Coalition, Inc., Kentucky Equal Justice
Center, KWH Law Center for Social Justice and Change, Labor
Council for Latin American Advancement (LCLAA), Labor Project,
Leadership Conference for Civil and Human Rights (LCCHR), Legal
Aid at Work, Legal Momentum, L'Oreal USA, Legal Voice, Levi
Strauss & Co, Main Street Alliance, Maine Women's Lobby, Make
the Road New York, MANA, A National Latina Organization, March
of Dimes, Massachusetts Coalition for Occupational Safety &
Health, Metro-Detroit Chapter of the Coalition of Labor Union
Women (CLUW), Michigan Immigrant Rights Center, Microsoft
Corporation, MomsRising, MS Black Women's Roundtable, Mujeres
Unidas y Activas, NARAL Pro-Choice America, NARAL Pro-Choice
Colorado, National Advocacy Center of the Sisters of the Good
Shepherd, National Advocates for Pregnant Women, National Asian
Pacific American Women's Forum (NAPAWF), National Association
for the Advancement of Colored People (NAACP), National Center
for Lesbian Rights, National Center for Transgender Equality,
National Consumers League, National Council for Occupational
Safety and Health (COSH), National Council of Jewish Women,
National Council of Jewish Women California, National Domestic
Workers Alliance, National Education Association (NEA),
National Employment Law Project (NELP), National Employment
Lawyers Association, National Immigration Law Center, National
Network to End Domestic Violence, National Organization for
Women, National Resource Center on Domestic Violence, National
Partnership for Women & Families, National WIC Association, NC
National Organization for Women (NC NOW), Nebraska Appleseed,
NETWORK Lobby for Catholic Social Justice, New Working
Majority, NJ Citizen Action; NJ Time to Care Coalition, North
Carolina Justice Center, Oxfam America, PA NOW, Parent Voices
CA, PathWays PA, PhilaPOSH, Prevent Child Abuse NC, Physicians
for Reproductive Health, Poligon Education Fund, PowHer New
York, Pride at Work, Public Citizen, Quetzal, Restaurant
Opportunities Centers United, RESULTS, RI CLUW, San Francisco
CLUW Chapter, Service Employees International Union, SEIU 32BJ,
Sexuality Information and Education Council of the United
States (SIECUS), Shriver Center on Poverty Law, Silver in the
City, Society for Human Resource Management (SHRM), Southern CA
Coalition for Occupational Safety & Health, Southwest
Pennsylvania National Organization for Women, Southwest Women's
Law Center, Spotify, TASH, Technology Concepts Group
International, LLC, The Greenlining Institute, The Leadership
Conference on Civil and Human Rights, The Ohio Women's Public
Policy Network, The Women's Zionist Organization of America,
Inc., The Zonta Club of Greater Queens, TIME'S UP Now, United
Food and Commercial Workers International Union (UFCW), Ujima
Inc: The National Center on Violence Against Women in the Black
Community, UltraViolet, UnidosUS, Union for Reform Judaism,
United Electrical, Radio and Machine Workers of America, United
Food and Commercial Workers International Union (UFCW), United
for Respect, United State of Women, United States Breastfeeding
Committee, U.S. Women's Chamber of Commerce, United
Steelworkers, United Way of Kentucky, University of Illinois at
Chicago, School of Public Health, Division of Environmental &,
Occupational Health Sciences, Vision y Compromiso, Voices for
Children in Nebraska, Voices for Progress, Warehouse Worker
Resource Center, Western Center on Law and Poverty, William E.
Morris Institute for Justice Arizona, Women4Change, Women's
Achievement Network and Development Alliance, Women & Girls
Foundation, Women Employed, Women of Reform Judaism, Women's
Center for Education and Career Advancement, Women's Employment
Rights Clinic Golden Gate University, Women's Foundation of
California, Women's Fund of Rhode Island, Women's Law Project,
Women's March, Women's Rights and Empowerment Network, The
Women's Legal Defense and Education Fund, Work Equity, Workers'
Center of Central New York, Worker Justice Center of New York,
Worksafe, Workplace Fairness, YWCA Mahoning Valley, YWCA McLean
County, YWCA New Hampshire, YWCA Northwestern Illinois, YWCA
USA, and ZERO TO THREE.
Committee Action
112TH CONGRESS
On May 8, 2012, Representative Jerrold Nadler (D-NY-10)
introduced H.R. 5647, the Pregnant Workers Fairness Act. The
bill had 112 Democratic cosponsors. The bill required employers
to make reasonable accommodations for the known limitations
related to pregnancy, childbirth, or related medical
conditions, unless the accommodation imposed an undue hardship
on the business. The bill also made it unlawful for employers
to deny employment opportunities based on the need for
reasonable accommodations; require employees to accept an
accommodation they did not choose; and require employees to
take leave if another accommodation could be provided. The bill
was referred to the House Committees on Education and the
Workforce, Administration, Oversight and Government Reform, and
Judiciary. Subsequently, the Committee on Education and the
Workforce referred the bill to the Subcommittee on Health,
Employment, Labor, and Pensions. The Judiciary Committee
referred the bill to the Subcommittee on the Constitution. No
further action was taken on the bill.
On September 19, 2012, Senator Robert P. Casey, Jr. (D-PA)
introduced S. 3565, the Pregnant Workers Fairness Act, as a
companion bill to H.R. 5647. The bill had nine cosponsors:
eight Democrats and one Independent. The bill was referred to
the Senate Committee on Health, Education, Labor, and Pensions.
No further action was taken on the bill.
113TH CONGRESS
On May 14, 2013, Representative Nadler introduced H.R.
1975, the Pregnant Workers Fairness Act. This bill was
identical to the version introduced in the 112th Congress and
had 142 Democratic cosponsors. The bill was referred to the
House Committees on Education and the Workforce,
Administration, Oversight and Government Reform, and Judiciary.
Subsequently, the Committee on Education and the Workforce
referred the bill to the Subcommittee on Workforce Protections,
and the Judiciary Committee referred the bill to the
Subcommittee on the Constitution and Civil Justice. No further
action was taken on the bill.
On the same day, Senator Casey introduced an identical
companion bill in the Senate: S. 942, the Pregnant Workers
Fairness Act. It had 33 cosponsors: 32 Democrats and one
Independent. The bill was referred to the Committee on Health,
Education, Labor, and Pensions. No further action was taken on
the bill.
114TH CONGRESS
On June 4, 2015, Representative Nadler introduced H.R.
2654, the Pregnant Workers Fairness Act. The bill had 149
sponsors: 146 Democrats and three Republicans. This version of
the bill had the same four protections as the previously
introduced bills, but also added a provision protecting workers
from retaliation for requesting or using reasonable
accommodations. The bill was referred to the House Committees
on Education and the Workforce, Administration, Oversight and
Government Reform, and Judiciary. The Committee on Education
and the Workforce referred the bill to the Subcommittee on
Workforce Protections, and the Judiciary Committee referred the
bill to the Subcommittee on the Constitution and Civil Justice.
No further action was taken on the bill.
On the same day, Senator Casey introduced S. 1512, the
Pregnant Workers Fairness Act, as a companion bill. This bill
also maintained the same four protections from prior versions
and added a provision protecting workers from retaliation for
requesting or using reasonable accommodations. The bill had 31
cosponsors, including one Independent and three Republicans. It
was referred to the Committee on Health, Education, Labor, and
Pensions. No further action was taken on the bill.
115TH CONGRESS
On May 11, 2017, Representative Nadler introduced H.R.
2417, the Pregnant Workers Fairness Act. This version of the
bill was identical to the one introduced in the 114th Congress.
The bill had 131 cosponsors: 129 Democrats and two Republicans.
The bill was referred to the House Committees on Education and
the Workforce, Administration, Oversight and Government Reform,
and Judiciary. The Judiciary Committee referred the bill to the
Subcommittee on the Constitution and Civil Justice. No further
action was taken on the bill.
On the same day, Senator Casey introduced S. 1101, the
Pregnant Workers Fairness Act, in the Senate. This version of
the bill was identical to the one introduced in the 114th
Congress. The bill had 27 cosponsors: 24 Democrats, two
Independents, and one Republican. The bill was referred to the
Committee on Health, Education, Labor, and Pensions. No further
action was taken on the bill.
116TH CONGRESS
On May 14, 2019, Representative Nadler introduced H.R.
2694, the Pregnant Workers Fairness Act. This version of the
bill is identical to the one introduced in the 115th Congress.
The bill was referred to the House Committees on Education and
Labor, Administration, Oversight and Reform, and Judiciary.
Subsequently, the Committee on Education and Labor referred the
bill to the Subcommittee on Civil Rights and Human Services,
and the Judiciary Committee referred the bill to the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. There are 233 cosponsors as of the date of the
filing of this report, including 16 Republicans. The bill makes
it an unlawful employment practice to: (1) refuse to make
reasonable accommodations for the known limitations related to
the pregnancy, childbirth, or related medical conditions of a
job applicant or qualified employee, unless the accommodation
would impose an undue hardship on an entity's business
operation; (2) require job applicants or employees to accept an
accommodation that they do not want, if such accommodation is
unnecessary to perform the job; (3) deny employment
opportunities based on the need of the entity to make such
reasonable accommodations to an applicant or employee; (4)
require employees to take paid or unpaid leave if another
reasonable accommodation can be provided; or (5) take adverse
action in terms, conditions, or privileges of employment
against an employee requesting or using reasonable
accommodations. The bill sets forth enforcement procedures and
remedies under various statutes that cover different types of
employees, including private sector, state, local, federal, and
congressional employees. The bill requires the Equal Employment
Opportunity Commission to issue regulations within two years
after the date of enactment. The bill makes clear that States
are not immune from legal action under the Eleventh Amendment
to the U.S. Constitution.
To date, there is no Senate companion bill.
On October 22, 2019, the House Committee on Education and
Labor's Subcommittee on Civil Rights and Human Services held a
legislative hearing entitled ``Long Over Due: Exploring the
Pregnant Workers Fairness Act (H.R. 2694)'' (October 22nd
Hearing). The hearing examined the health and economic effects
of pregnant workers' lack of access to reasonable
accommodations. The hearing also examined how H.R. 2694 would
fill a gap in the existing legal framework by guaranteeing
pregnant workers the right to reasonable workplace
accommodations. The witnesses were: The Honorable Jerrold
Nadler (D-NY-10); Michelle Durham, former Emergency Medical
Technician (EMT), Arab, AL; Iris Wilbur, Vice President of
Government Affairs and Public Policy at Greater Louisville Inc.
The Metro Chamber of Commerce, Louisville, KY; Dina Bakst, Co-
Founder and Co-President of A Better Balance, New York, NY; and
Ellen McLaughlin, Partner at Seyfarth Shaw LLP, Chicago, IL.
On January 14, 2020, the House Committee on Education and
Labor marked up H.R. 2694 and ordered it to be reported
favorably, as amended, to the House of Representatives by a
vote of 29 Yeas and 17 Nays.
At the markup, the Committee considered the following
amendments to H.R. 2694:
Representative Robert C. ``Bobby'' Scott (D-
VA-3), Chairman of the House Committee on Education and
Labor, offered an amendment in the nature of a
substitute (ANS). The ANS: (1) amended Section 2 to
ensure that an employer cannot require a qualified
employee to accept an accommodation other than one
established during the employer-employee interactive
negotiation process; (2) amended Section 3 to add a
good faith defense for covered entities and provided
that damages may not be awarded if the covered entity
demonstrates good faith in engaging in the interactive
process to identify and make reasonable accommodations;
(3) amended Section 4 to remove unnecessary rulemaking
language but preserves the Equal Employment Opportunity
Commission's obligation to promulgate regulations that
provide examples of reasonable accommodations within
two years of enactment; (4) amended Section 5 to
clarify that the term ``employer'' means a person
engaged in an industry affecting commerce who has 15 or
more employees as defined in Title VII of the Civil
Rights Act of 1964\3\; (5) amended Section 5 to add a
new definition of who is considered a ``qualified
employee'' by incorporating key elements from the
Americans with Disabilities Act of 1990\4\; (6) amended
Section 5 to add a new definition of the term ``known
limitations''; and (7) added a new Section 8 to include
a severability clause in the legislation. The ANS was
adopted by voice vote.
---------------------------------------------------------------------------
\3\42 U.S.C. Sec. 2000e(b).
\4\42 U.S.C. Sec. 12101.
---------------------------------------------------------------------------
Representative Virginia Foxx (R-NC-5),
Ranking Member of the House Committee on Education and
Labor, offered an amendment in the nature of a
substitute. It was similar to the ANS offered by
Chairman Scott but included a provision to exempt
religious organizations from coverage under the bill
and would have allowed religious employers to deny
workers reasonable accommodations under the law. The
amendment was defeated by a vote of 17 Yeas and 27
Nays.
Committee Views
The Committee on Education and Labor (Committee) is
committed to protecting pregnant workers' health and economic
security. No worker should have to choose between their health,
the health of their pregnancy, and the ability to earn a
living. H.R. 2694, the Pregnant Workers Fairness Act (PWFA),
makes clear that pregnant workers have the right to reasonable
accommodations absent undue hardship on the employer. The PWFA
eliminates a lack of clarity in the current legal framework
that has frustrated pregnant workers' legal rights to
reasonable accommodations while providing clear guidance to
both workers and employers.
THE PREGNANCY DISCRIMINATION ACT OF 1978 AND THE AMERICANS WITH
DISABILITIES ACT OF 1990 ARE INSUFFICIENT TO GUARANTEE PREGNANT WORKERS
REASONABLE ACCOMMODATIONS
Seventy-five percent of working women will become pregnant
while employed at some time in their lives.\5\ Women are
increasingly either the primary or co-breadwinners of
households.\6\ As a result, more pregnant women work later into
their pregnancies. Research suggests that more than 80 percent
of first-time mothers work until their final month of
pregnancy.\7\ Pregnant workers may need reasonable
accommodations to protect the health of both mother and baby.
Reasonable accommodations can include providing seating, water,
and light duty. 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
a healthy pregnancy.
---------------------------------------------------------------------------
\5\Melissa Alpert, Center for American Progress, Labor Pains:
Improving Employment and Income Security for Pregnant Women and New
Mothers, 2 (2009), https://cdn.americanprogress.org/wp-content/uploads/
issues/2009/08/pdf/
labor_pains.pdf?_ga=2.262643852.1428433223.1599244597-
106194704.1597112689.
\6\Sarah Jane Glynn, Center for American Progress, Breadwinning
Mothers Continue To Be the U.S. Norm, 1 (2019) https://
cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf?_ga=2.257334027.1474637733.1598641131-
106194704.1597112689.
\7\Lynda Laughlin, U.S. Census Bureau, Maternity Leave and
Employment Patterns: 2006-2008 8 (2011), https://www.census.gov/prod/
2011pubs/p70-128.pdf.
---------------------------------------------------------------------------
Although workers in need of pregnancy-related
accommodations may be able to seek recourse under the Pregnancy
Discrimination Act of 1978 (PDA)\8\ and Title I of the
Americans with Disabilities Act of 1990 (ADA),\9\ varying
interpretations have created an unworkable legal framework.
This has frustrated pregnant workers' ability to secure
reasonable accommodations. Under the PDA, a pregnant worker
must show that her employer accommodated a co-worker who is
``similar in their ability or inability to work'' (known as a
comparator), which is a burdensome and often impossible
standard to meet. Under the ADA, a pregnancy-related impairment
that substantially limits a major life activity is a disability
for which an employer may be required to provide reasonable
accommodations.\10\ However, this standard leaves women with
less serious pregnancy-related impairments, and who need
accommodations, without legal recourse. As explained further
below, the protections under these two statutes are
insufficient to ensure that pregnant workers receive the
accommodations they need.
---------------------------------------------------------------------------
\8\42 U.S.C. Sec. 2000e(k).
\9\42 U.S.C. Sec. Sec. 12111-12117.
\10\29 C.F.R. Sec. 1630.
---------------------------------------------------------------------------
HISTORY OF PREGNANT WORKERS' STATUTORY PROTECTIONS: THE PREGNANCY
DISCRIMINATION ACT OF 1978
COURTS MISINTERPRETED CONGRESSIONAL INTENT IN TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964
Congress passed Title VII of the Civil Rights Act of
1964\11\ (Title VII) to eliminate discrimination in employment
on the basis of race, sex, color, national origin, and
religion. In 1972, the Equal Employment Opportunity Commission
(EEOC) issued guidelines on pregnancy discrimination,
concluding that Title VII's prohibition against sex
discrimination in the workplace included discrimination based
on pregnancy.\12\ However, in two U.S. Supreme Court decisions
in the 1970s, the Court ruled that pregnancy discrimination was
not considered sex discrimination.
---------------------------------------------------------------------------
\11\42 U.S.C. Sec. 2000e
\12\29 CFR Sec. 1604.10(b) (1973).
---------------------------------------------------------------------------
In Geduldig v. Aiello,\13\ the Court analyzed whether
California's exclusion of pregnancy-related disabilities from
its disability insurance program was a violation of the Equal
Protection Clause of the Fourteenth Amendment to the
Constitution and concluded it was not. The Court held that
because benefits were not denied on the basis of gender,
---------------------------------------------------------------------------
\13\Geduldig v. Aiello, 417 U.S. 484 (1974).
[t]he California insurance program does not exclude
anyone from benefit eligibility because of gender but
merely removes one physical condition--pregnancy--from
the list of compensable disabilities. While it is true
that only women can become pregnant, it does not follow
that every legislative classification concerning
pregnancy is a sex-based classification.\14\
---------------------------------------------------------------------------
\14\417 U.S. 484, 496-97 n. 20 (1974).
Two years later, the Supreme Court decided General Electric
Company v. Gilbert.\15\ At issue in Gilbert was a private
employee disability benefits plan that excluded pregnancy-
related disability from coverage. Relying heavily on the prior
decision in Aiello, the Court ruled that the exclusion did not
constitute sex discrimination as prohibited by Title VII.\16\
---------------------------------------------------------------------------
\15\General Electric Company v. Gilbert, 429 U.S. 125, 135-36
(1976).
\16\Id.
---------------------------------------------------------------------------
WITH THE PREGNANCY DISCRIMINATION ACT OF 1978, CONGRESS SOUGHT TO
OVERTURN SUPREME COURT PRECEDENT
Congress passed the PDA to overturn the Supreme Court's
erroneous interpretation of Title VII. The Senate Committee on
Human Resources report for the PDA stated:
[T]he assumption that women will become pregnant and
leave the labor market is at the core of the sex
stereotyping resulting in unfavorable disparate
treatment of women in the workplace. A failure to
address discrimination based on pregnancy, in fringe
benefits or in any other employment practice, would
prevent the elimination of sex discrimination in
employment.\17\
---------------------------------------------------------------------------
\17\S. Rep. No. 95-331, at 3 (1977).
Congress sought, through the PDA, to codify the EEOC's
original interpretation of Title VII and ``make clear that the
prohibitions against sex discrimination in the act include
discrimination in employment on the basis of pregnancy.''\18\
In order to overturn Gilbert, the PDA amended Title VII in two
parts. First, it amended the Title VII's definition of ``sex''
to include discrimination on the basis of pregnancy,
childbirth, or related medical conditions as sex
discrimination.\19\ In doing so, the PDA made clear that
discrimination on the basis of pregnancy was discrimination on
the basis of sex.\20\ Second, it added a provision that stated
that pregnant workers ``shall be treated the same for all
employment-related purposes . . . as other persons not so
affected but similar in their ability or inability to
work.''\21\ This language created the need for a pregnant
worker to identify a comparable coworker or group of coworkers
to determine whether she's been discriminated against.
According to the House Committee on Education and Labor report
for the PDA:
---------------------------------------------------------------------------
\18\Id. at 1.
\19\42 U.S.C. Sec. 2000e(k).
\20\Brief for Members of Congress as Amici Curiae Supporting
Petitioner at 9, Young v. United States Parcel Service, Inc., 135 S.
Ct. 1338 (2015) (No. 12-1226).
\21\42 U.S.C. Sec. 2000e(k).
This legislation would clearly establish that the
prohibition against sex discrimination in Title VII of
the Civil Rights Act of 1964 includes a prohibition
against employment-related discrimination on the basis
of pregnancy, childbirth, or related medical
conditions. As an amendment to Title VII, the bill will
apply to all aspects of employment--hiring,
reinstatement, termination, disability benefits, sick
leave, medical benefits, seniority, and other
conditions of employment currently covered by Title
VII. Pregnancy-based distinctions will be subject to
the same scrutiny on the same terms as other acts of
sex discrimination proscribed in the existing
statute.\22\
---------------------------------------------------------------------------
\22\H. Rep. No. 95-948, at 4 (1978).
At the October 22nd Hearing, Ms. Bakst summarized Congress'
---------------------------------------------------------------------------
intent with respect to the PDA:
Thus, when Congress mandated that employers treat
pregnant women the same as `other persons similar in
their ability or inability to work' the intended result
was, and continues to be, that such treatment would
lead to women's equality in the workplace. While the
comparative standard has led to positive results for
some pregnant workers, for far too many, equality in
the workplace remains elusive.\23\
---------------------------------------------------------------------------
\23\Long Over Due: Exploring the Pregnant Workers Fairness Act
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Testimony of Dina Bakst,
Co-Founder & Co President, A Better Balance: The Work & Family Legal
Center, at 10) [hereinafter Bakst Testimony].
---------------------------------------------------------------------------
COURT INTERPRETATIONS OF THE PDA LEFT NUMEROUS GAPS IN PROTECTIONS
Prior to 2015, the circuit courts were split on how to
determine which type of workers were ``similar in their ability
or inability to work'' or would serve as a valid and relevant
comparator to a pregnant worker for the purpose of securing
reasonable accommodations under the PDA. In identifying a
``relevant comparator,'' the majority of circuits focused on
the source of the injury by comparing the pregnant worker's
treatment to those employees who had sustained non-ADA-
qualifying, off-the-job injuries.\24\ ``In other words, a
pregnant worker was only entitled to be treated as well (or as
poorly) as those injured off the job.''\25\ Only the Sixth
Circuit interpreted the PDA to mean that if a nonpregnant
worker with a lifting restriction, for example, was
accommodated, then a pregnant worker with a similar lifting
restriction should likewise be accommodated.\26\
---------------------------------------------------------------------------
\24\Lara Grow, Pregnancy Discrimination in the Wake of Young v.
UPS, 19 U.PA. J.L. & Soc. Change 133, 144, (2016).
\25\Id. at 145.
\26\Id. at 144.
---------------------------------------------------------------------------
The PDA does not affirmatively require that an employer
reasonably accommodate a pregnant worker. Ms. Bakst testified
at the October 22nd Hearing to the legal obstacles encountered
by pregnant workers leading up to the landmark 2015 decision
regarding the PDA in Young v. United Parcel Service, Inc.
(UPS):\27\
---------------------------------------------------------------------------
\27\Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015).
[W]e reviewed 200 Pregnancy Discrimination Act cases
in the two years leading up to the Young decision and
found that of those cases that dealt with an issue of
pregnancy accommodation, in nearly two-thirds of cases,
courts rejected the plaintiff's PDA claim largely
because the pregnant worker could not provide adequate
comparators.\28\
---------------------------------------------------------------------------
\28\Bakst Testimony at 12.
---------------------------------------------------------------------------
THE SUPREME COURT DECISION IN YOUNG V. UNITED PARCEL SERVICE, INC.
ESTABLISHED A NEW STANDARD THAT IS UNWORKABLE IN PRACTICE
In 2015, the Supreme Court decided Young v. UPS,\29\ which
set forth a new, controlling standard for a plaintiff to
establish a disparate treatment claim of discrimination in
securing a reasonable accommodation under the PDA.
---------------------------------------------------------------------------
\29\135 S. Ct. 1338 (2015).
---------------------------------------------------------------------------
In that case, Peggy Young worked as a part-time delivery
driver for UPS, and her job consisted of picking up and
delivering packages. When Young became pregnant, her doctor
advised her to lift no more than twenty pounds. Young, who was
required by company policy to be able to lift up to 70 pounds,
requested a light-duty work assignment for the duration of her
pregnancy. Because UPS's policy was to only grant an
accommodation to employees who had been injured on the job,
were eligible for an ADA accommodation, or had lost their
Department of Transportation (DOT) certification, UPS denied
her request for a light-duty accommodation.\30\
---------------------------------------------------------------------------
\30\Lara Grow, Pregnancy Discrimination in the Wake of Young v.
UPS, 19 U. Pa. J.L. & Soc. Change 133, 147 (2016).
---------------------------------------------------------------------------
UPS did not consider Young's pregnancy to constitute an on-
the-job injury. Because of the unwillingness of her employer to
place her on light duty due to her pregnancy-related lifting
restriction, Young was forced to take an extended leave of
absence without pay or medical coverage.
Young sued UPS alleging disparate treatment under the PDA
and pursued her case to the U.S. Supreme Court.\31\ In a 6-3
decision, the Supreme Court set out a new test for pregnant
workers to prove that their employers acted unlawfully under
the PDA when the employer denied the pregnant worker an
accommodation.\32\
---------------------------------------------------------------------------
\31\See Brief of Petitioner at 13, Young v. United Parcel Serv.,
Inc., 135 S. Ct. 1338 (2015) (Young filed suit in a Maryland District
Court. The court granted summary judgement to UPS. Young appealed to
the Fourth Circuit. The Fourth Circuit ruled in favor of UPS, holding
that the company's policy was neutral with respect to pregnancy, as
pregnant workers were treated the same as other similarly situated
employees who sustained off-the-job injuries, and thus did not
constitute unlawful pregnancy discrimination. Young appealed the ruling
to the Supreme Court.).
\32\The six to three decision in Young v. United Parcel Serv.,
Inc., 135 S. Ct. 1338 (2015), was rooted in the legal framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
---------------------------------------------------------------------------
First, a plaintiff must demonstrate ``that
she belongs to the protected class, that she sought
accommodation, that the employer did not accommodate
her, and that the employer did accommodate others
`similar in their ability or inability to work.''\33\
---------------------------------------------------------------------------
\33\Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354
(2015).
---------------------------------------------------------------------------
Second, the employer can rebut this showing
by providing ``legitimate, nondiscriminatory reasons
for denying her accommodation.''\34\ In making such a
showing, the Court made clear that the employer's
reason ``cannot consist simply of a claim that it is
more expensive or less convenient to add pregnant women
to the category of those (``similar in their ability or
inability to work'') whom the employer
accommodates.''\35\ Essentially, the employer must
provide a non-economic justification for its actions.
---------------------------------------------------------------------------
\34\Id.
\35\Id.
---------------------------------------------------------------------------
Third, if the employer successfully
demonstrates ``legitimate, nondiscriminatory reasons''
for its actions, the employee must rebut the employer's
justification. The Court held that a plaintiff can
rebut this argument as pretextual ``by providing
sufficient evidence that the employer's policies impose
a significant burden on pregnant workers'' and that the
employer's ``reasons are not sufficiently strong to
justify the burden.''\36\ The Court explained that the
employee can demonstrate that the policy imposes a
significant burden ``by providing evidence that the
employer accommodates a large percentage of nonpregnant
workers while failing to accommodate a large percentage
of pregnant workers.''\37\ But the Court failed to
define ``a large percentage'' and, critically, who of
the non-pregnant workers should be considered
``relevant comparators'' when crafting that percentage.
---------------------------------------------------------------------------
\36\Id.
\37\Id.
---------------------------------------------------------------------------
THE TEST UNDER YOUNG DOES NOT ADEQUATELY PROTECT PREGNANT WORKERS
The Court's holding in Young does not guarantee pregnant
workers a reasonable accommodation. Under the Young framework,
pregnant workers face high evidentiary hurdles to prove that
their employer should provide them with reasonable
accommodations. The decision still requires pregnant workers
who bring a failure to accommodate claim under the PDA to
provide a comparator, but it did little to provide clarity as
to who constitutes a relevant comparator other than to say the
standard should not be ``onerous'' on workers.\38\ Forcing
pregnant workers to identify a comparator creates an oftentimes
insurmountable hurdle.
---------------------------------------------------------------------------
\38\Id.
---------------------------------------------------------------------------
At odds with Justice Breyer's majority opinion in Young
stating that the comparator standard should not be onerous on
workers, testimony received by the Committee at the October
22nd Hearing points out that a requirement to establish a valid
comparator ``places a unique burden on pregnant workers'' and
``is also tone deaf to the realities of the American workplace,
where workers lack clout, bargaining power, and access to their
co-workers' accommodations requests or personnel files.''\39\
Indeed, in an analysis of reasonable accommodation PDA cases
decided after Young, ``over two-thirds of workers lost their
pregnancy accommodation cases. Nearly seventy percent of those
losses can be traced to courts' rejection of women's
comparators or inability to find comparators.''\40\
---------------------------------------------------------------------------
\39\Bakst Testimony at 14.
\40\Id. at 3.
---------------------------------------------------------------------------
Additionally, some courts have placed categorical bans on
certain types of comparators.\41\ This was the experience of
Kimberlie Durham, who testified at the October 22nd Hearing.
Ms. Durham, an Emergency Management Technician (EMT), requested
a temporary reassignment after being told by her doctor that
she should not lift anything over 50 pounds; her job required
lifting patients and stretchers on a regular basis.\42\ Despite
her employer's policy of giving ``light duty'' or ``modified
duty'' assignments to EMTs with lifting restrictions for
reasons other than pregnancy and the availability of vacant
positions that Durham could fill that would not require
lifting, Durham's employer denied her request. Durham's
employer would only offer light or modified duty to EMTs
injured on the job, and pregnant workers didn't qualify;
instead, she would had to have taken an unpaid leave of
absence.\43\ Durham tried to work with her employer to come to
a solution, but her employer was unresponsive until she filed
for unemployment insurance:
---------------------------------------------------------------------------
\41\Id.
\42\Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Written testimony of
Kimberlie M. Durham, at 4) [Hereinafter Durham Testimony].
\43\Durham Testimony at 5.
After a month of silence, I filed for unemployment
benefits so that I could at least pay my bills. That's
what got a response from Rural/Metro: the company
opposed my application, telling the state that I still
worked there--even though it had refused to schedule me
for any shifts. After that, I had no choice but to file
a charge of discrimination with the Equal Employment
Opportunity Commission, followed by a lawsuit in
federal court in the fall of 2016.\44\
---------------------------------------------------------------------------
\44\Id.
In Durham v. Rural/Metro Corporation,\45\ the federal
district court for the Northern District of Alabama found that
Durham did not have a PDA claim for the employer's failure to
accommodate her lifting restriction, even though she could
point to three other co-workers who were given light or
modified duty when they too had lifting restrictions. The
court's reasoning hinged on the fact that those three people
had on-the-job injuries. In April 2020, an appellate court
ruled in Ms. Durham's favor after nearly five years in
litigation.\46\
---------------------------------------------------------------------------
\45\Durham v. Rural/Metro Corp., No. 4:16-CV-01604-ACA, 2018 U.S.
Dist. LEXIS 173461 (N.D. Ala. Oct. 9, 2018).
\46\Durham v. Rural/Metro Corp., 955 F.3d 1279 (11th Cir. 2020).
---------------------------------------------------------------------------
Pregnant workers must also discredit their employer's
justification for failing to accommodate them. The Young
decision requires that the pregnant worker demonstrate that the
``employer's policies impose a significant burden on pregnant
workers.''\47\ Ms. Bakst testified at the October 22nd Hearing,
``the `significant burden' standard the Court laid out in Young
as part of the pretext analysis in the third step of the test
[sic] has also proven harmful to women. If workers are even
able to make it to this step in the analysis, the `significant
burden' analysis remains an additional hurdle.''\48\
---------------------------------------------------------------------------
\47\135 S. Ct. 1338, 1354 (2015).
\48\Bakst Testimony at 16.
---------------------------------------------------------------------------
Additionally, using the Young framework can take years to
get a remedy. As Ms. Bakst testified at the October 22nd
Hearing:
[U]nder the framework established by the court's
majority in Young, a pregnant worker who wants to prove
unlawful treatment based on her employer's failure to
accommodate her pregnancy must go through a multi-step
process that can only be fleshed out through lengthy
litigation. Yet most workers we hear from simply want
an accommodation to continue working and comply with
their doctor's orders. They cannot afford to wait
weeks, months, or years for a court decision. Once
their baby has started elementary school, it is
obviously too late to ensure the pregnancy is healthy
at the outset and to prevent a downward spiral of
financial woes.\49\
---------------------------------------------------------------------------
\49\Bakst Testimony at 21.
Even if a pregnant worker can surmount the evidentiary
hurdles under the Young framework, her case will likely take
years, lasting well past the pregnancy and leaving her without
a remedy during her pregnancy. In the case of Ms. Durham, for
example, by the time a court finally ruled in her favor, her
child was four years old. Her remedy was long overdue.
THE HISTORY OF PREGNANT WORKERS' PROTECTIONS: THE AMERICANS WITH
DISABILITIES ACT OF 1990
The ADA defines a disability as ``a physical or mental
impairment that substantially limits one or more major life
activities of such individual; a record of such an impairment;
or being regarded as having such an impairment.''\50\ Title I
of the ADA further provides that, ``[n]o covered entity shall
discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.''\51\ Since the passage of the ADA, there has been
a significant amount of debate over whether pregnancy could
ever be considered a disability under the definition above.\52\
---------------------------------------------------------------------------
\50\42 U.S.C. Sec. 12102.
\51\42 U.S.C. Sec. 12112(a).
\52\Samuel R. Bagenstos, Subordination, Stigma, and ``Disability,''
86 Va. L. Rev. 397, 407 (2000) (citing Mary Crossley, The Disability
Kaleidoscope, 74 Notre Dame L. Rev. 621, 668-716 (1999)).
---------------------------------------------------------------------------
Prior to the passage of the ADA Amendments Act of 2008
(ADAAA),\53\ the EEOC took the position that pregnancy was not
an ``impairment'' and therefore could not be considered a
disability even if it was the cause of a substantial
limitation.\54\ Courts relied on this guidance and held in a
line of cases that ``absent unusual circumstances, pregnancy
does not constitute a `physical impairment' under the
ADA.''\55\ In addition to the EEOC's determination that
pregnancy was not an ``impairment,'' EEOC regulations in 1999
listed as factors that should be considered in determining
whether an individual is substantially limited in a major life
activity: the nature and severity of the impairment; the
duration or expected duration of the impairment; and the
permanent or long term impact, or the expected permanent or
long term impact of or resulting from the impairment.\56\ Given
that pregnancy lasts approximately nine months and any
limitations resulting from pregnancy may last only for a
portion of that timespan, it is not surprising that few courts
determined that pregnancy was covered by the ADA prior to the
ADAAA.
---------------------------------------------------------------------------
\53\42 U.S.C. Sec. 12102.
\54\29 U.S.C. Pt. 1630; See also, U.S. Equal Emp't Opportunity
Comm'n, The Family and Medical Leave Act, the ADA, and Title VII of the
Civil Rights Act of 1964 (1995), https://www.eeoc.gov/laws/guidance/
family-and-medical-leave-act-ada-and-title-vii-civil-rights-act-1964.
\55\Villarreal v. J.E. Merit Constructors, 895 F. Supp. 149, 152
(S.D. Tex. 1995).
\56\29 C.F.R. Sec. 1630.2.
---------------------------------------------------------------------------
THE ADA AMENDMENTS ACT OF 2008 PROVIDES LIMITED PROTECTIONS FOR
PREGNANT WORKERS
Under the ADAAA, pregnancy itself may not be considered a
disability but pregnant workers may have conditions that could
qualify them for accommodations under the law. The ADAAA was
passed in response to a series of cases in which the Supreme
Court limited who could be considered disabled under the ADA
and ``[n]arrowed the broad scope of protection intended to be
afforded by the ADA, thus eliminating protection for many
individuals whom Congress intended to protect.''\57\
---------------------------------------------------------------------------
\57\42 U.S.C. Sec. 12101 (see note on Findings and Purposes of Pub.
L. 110-325).
---------------------------------------------------------------------------
In guidance related to pregnancy discrimination adopted
after the ADAAA, the EEOC advised that, ``[a]lthough pregnancy
itself is not a disability, pregnant workers may have
impairments related to their pregnancies that qualify as
disabilities under the ADA . . . A number of pregnancy-related
impairments are likely to be disabilities, even though they are
temporary, such as pregnancy-related carpal tunnel syndrome,
gestational diabetes, pregnancy-related sciatica, and
preeclampsia.''\58\
---------------------------------------------------------------------------
\58\Fact Sheet for Small Businesses: Pregnancy Discrimination, U.S.
Equal Emp't Opportunity Comm'n, https://www.eeoc.gov/eeoc/publications/
pregnancy_factsheet.cfm (last visited Mar. 18, 2020).
---------------------------------------------------------------------------
The ADAAA also expanded the definition of ``major life
activities'' to include ``major bodily functions.''\59\
Additionally, ``[u]nder the ADAAA and its implementing
regulations, an impairment is not categorically excluded from
being a disability simply because it is temporary.''\60\
Therefore, a pregnant worker may be a qualified individual with
a disability for purposes of the ADA if her pregnancy impairs a
major bodily function (such as functions of the immune system,
normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive
functions) or her ability to perform a major life activity
(such as caring for oneself, performing manual tasks, sleeping,
walking, standing, lifting, bending, speaking, learning,
reading, concentrating, thinking, communicating, and working).
---------------------------------------------------------------------------
\59\42 U.S.C. Sec. 12102.
\60\Summers v. Altarum Inst., Corp., 740 F.3d 325, 333 (4th Cir.
2014).
---------------------------------------------------------------------------
Although the ADAAA's definition of disability is almost
broad enough to cover any limitation related to pregnancy,
courts have been reticent to apply the broad definition of
disability urged by the ADAAA.\61\ While the EEOC has been
careful to adhere to the ADAAA's expansive view of disability
in the context of pregnancy, a review of the caselaw suggests
that courts have been more aggressive in limiting the
application of the ADAAA to pregnant workers. ``In order to
make out a prima facie case of disability discrimination under
the ADA, [the plaintiff] must establish that she (1) has a
`disability,' (2) is a `qualified individual,' and (3) has
suffered an adverse employment action because of that
disability.''\62\ In order to establish the prima facie case
for discrimination on the basis of an employer's failure to
make a reasonable accommodation, a plaintiff must show that:
``(1) plaintiff is a person with a disability under the meaning
of the ADA; (2) an employer covered by the statute had notice
of [her] disability; (3) with reasonable accommodation,
plaintiff could perform the essential functions of the job at
issue; and (4) the employer has refused to make such
accommodations.''\63\
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\61\Nicole B. Porter, Explaining ``Not Disabled'' Cases Ten Years
After the ADAAA: A Story of Ignorance, Incompetence, and Possibly
Animus, 26 Geo. J. Poverty Law & Pol'y 383, 392 (2019). Of nearly 1,000
ADA cases decided between 2014 and 2018, the federal courts erroneously
ruled that workers were not individuals with disabilities entitled to
the protections of the ADA in 210 of them.
\62\Turner v. Hershey Chocolate, 440 F.3d 604, 611 (3d Cir. 2006).
\63\Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567,
577 (S.D.N.Y. 2008).
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To determine whether a plaintiff's condition meets the
legal definition of ``disability,'' courts must assess whether
the worker has ``a physical or mental impairment that
substantially limits one or more major life activities of such
individual.''\64\ If the court determines that the plaintiff
did not have an ``impairment,'' the individual will not reach
the second part of the inquiry to determine whether the
individual is substantially limited in one or more major life
activities. Numerous courts applying the ADAAA have continued
to hold that, ``pregnancy, absent unusual circumstances, is not
considered a disability under the ADA.''\65\ In response to
questions for the record for the October 22nd Hearing submitted
by Representative Suzanne Bonamici (D-OR-1), Chair of the
Committee's Subcommittee on Civil Rights and Human Services,
Ms. Bakst stated:
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\64\42 U.S.C. Sec. 12102(1)(a).
\65\See Tomiwa v. PharMEDium Servs., LLC, No. 4:16-CV-3229, 2018
U.S. Dist. LEXIS 66772, at *13 (S.D. Tex. Apr. 20, 2018) (``Absent
unusual circumstances, pregnancy and related medical conditions do not
constitute a physical impairment.''); Mayorga v. Alorica, Inc., No. 12-
21578-CIV-HUCK/BANDSTRA, 2012 U.S. Dist. LEXIS 3043021, at *32 (S.D.
Fla. July 25, 2012) (citing, inter alia, Selkow v. 7-Eleven, Inc., No.
11-CV-456-T-33EAJ, 2012 U.S. Dist. LEXIS 79265, at *37 (M.D. Fla. June
7, 2012) (``Absent unusual circumstances, pregnancy is not considered a
disability--temporary or otherwise--under the ADA or FCRA.''); Jeudy v.
Holder, No. 10-22873-CIV-HUCK/BANDSTRA, 2011 U.S. Dist. LEXIS 128746,
at *13 (S.D. Fla. Nov. 7, 2011) (noting ``that pregnancy is not
normally considered a disability'')).
Disturbingly, courts are finding that even when
pregnant women have quite serious complications, those
complications do not merit ADAAA protections . . .
Courts also explicitly distinguish `pregnancy-related
complications' from an ADAAA qualifying `disability,'
thus acknowledging that even those pregnant women with
complications may have no recourse under the ADAAA.\66\
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\66\Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694) Before the Subcomm. on Civil Rights Human. & Servs. of the
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Questions for the record
submitted by Dina Bakst, Co-Founder & Co-President, A Better Balance,
at 7-10).
In fact, one court stated, ``only in extremely rare cases
have courts found that conditions that arise out of pregnancy
qualify as a disability.''\67\ Another court acknowledged,
``[a]lthough the 2008 amendments broadened the ADA's definition
of disability, these changes only have had a modest impact when
applied to pregnancy-related conditions.''\68\
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\67\Sam-Sekur v. Whitmore Grp., Ltd., No. 11-CV-4938 (JFB) (GRB),
2012 U.S. Dist. LEXIS 83586, at *24 (E.D.N.Y. June 15, 2012); see also
Wanamaker v. Westport Board of Education, 899 F.Supp.2d 193, 211 (D.
Conn. 2012) (Citing to Sam-Sekur and the EEOC guidance that short-term
impairments must be ``sufficiently severe'' for the proposition that
pregnancy-related conditions are only ADAAA-qualifying in rare cases.
Additionally, finding plaintiff teacher could not pursue her ADA claim
because she ``failed to allege that her transverse myelitis limit[ed] a
major life activity and that any impairment as a result of her
transverse myelitis was not for a short period of time'' and ``no other
facts indicating that [her] condition was chronic.'' Id. at 212.).
\68\Scheidt v. Floor Covering Assocs., Inc., No. 16-CV-5999, 2018
U.S. Dist. LEXIS 167480, at *23-24 (N.D. Ill. Sept. 28, 2018) (holding
allergies, including rashes and breathing problems, do not constitute a
disability that impairs a major life activity).
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There are many cases where courts have found that even
severe complications related to pregnancy do not constitute
disabilities triggering ADAA protection. In Adireje v. ResCare,
Inc.,\69\ the court dismissed a health care worker's ADAAA
claim even though she experienced unbearable cramping,
bleeding, and a miscarriage. The court held, ``even if Adireje
had a pregnancy-related complication . . . [she] was not
disabled for purposes of the ADA because there is no evidence
that her cramps limited her ability to work or other major life
activities.''\70\
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\69\Adireje v. ResCare, Inc., No. 1:18-CV-01429-TWP-DLP, 2019 U.S.
Dist. LEXIS 170125 (S.D. Ind. Sept. 30, 2019).
\70\Id. at 24.
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In addition to the general reticence to equate pregnancy
and disability, courts have sometimes pointed to the short
duration of pregnancy complications as a reason to reject an
ADAAA claim. The EEOC's guidance on the ADAAA states that,
``[i]mpairments that last only for a short period of time are
typically not covered, although they may be covered if
sufficiently severe.''\71\ Courts continue to read a durational
requirement into the ADAAA.\72\ For example, one court held
that ``temporary, non-chronic impairments of short-duration,
with little or no long term or permanent impact, are usually
not disabilities.''\73\ Regardless of the merits of the
individual cases, the reality is that, as one court stated,
``only in extremely rare cases have courts found that
conditions that arise out of pregnancy qualify as a
disability.''\74\ As Ms. Bakst noted at the October 22nd
Hearing, ``courts consistently make clear that pregnancy itself
is not a disability and does not merit reasonable
accommodations under the ADAAA . . . courts have been unwilling
to extend ADAAA coverage for pregnancy-related disabilities,
even in cases where workers have presented serious pregnancy
complications.''\75\
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\71\See 29 C.F.R. Sec. 1630 (Appendix to Part 1630, Interpretive
Guidance on Title I of the Americans with Disabilities Amendments Act).
\72\Love v. First Transit, Inc., No. 16-CV-2208, 2017 U.S. Dist.
LEXIS 37716, at *16 (N.D. Ill. Mar. 16, 2017). See also Lang v. Wal-
Mart Stores East, L.P., No. 13-CV-349-LM, 2015 U.S. Dist. LEXIS 44185,
at *4 (D.N.H. Apr. 3, 2015) (``[P]regnancy is not an actionable
disability, unless it is accompanied by a pregnancy-related
complication.''); Annobil v. Worcester Skilled Care Ctr., Inc., No. 11-
40131-TSH, 2014 U.S. Dist. LEXIS 126643, at *36 (D. Mass. Sept. 10,
2014) (granting summary judgment for defendant where plaintiff
``provides no legal argument as to whether such symptoms [including
headaches, nausea and vomiting] differ from normal symptoms of
pregnancy and how these complications are disabling''); Mayorga v.
Alorica, Inc., No. 12-21578-CIV-HUCK/BANDSTRA, 2012 U.S. Dist. LEXIS
103766, at *5 (S.D. Fla. July 25, 2012).
\73\Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 211
(D. Conn. 2012).
\74\Sam-Sekur v. Whitmore Grp., Ltd., No. 11-CV-4938 (JFB) (GRB),
2012 U.S. Dist. LEXIS 83586, at *24 (E.D.N.Y. June 15, 2012); see also
Wanamaker v. Westport Board of Education, 899 F. Supp. 2d 193, 211 (D.
Conn. 2012) (Citing to Sam-Sekur and the EEOC guidance that short-term
impairments must be ``sufficiently severe'' for the proposition that
pregnancy-related conditions are only ADAAA-qualifying in rare cases.
Additionally, finding plaintiff teacher could not survive her ADA claim
because she ``failed to allege that her transverse myelitis limit[ed] a
major life activity and that any impairment as a result of her
transverse myelitis was not for a short period of time'' and ``no other
facts indicating that [her] condition was chronic.'' Id. at 212.).
\75\Bakst Testimony at 17.
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Given the case law, it is abundantly clear that the ADA, as
amended by the ADAAA, does not provide a sufficient avenue for
receiving reasonable accommodations that would allow a worker
to continue to earn a living while maintaining a healthy
pregnancy.\76\
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\76\Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694) Before the Subcomm. on Civil Rights Human. & Servs. of the
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Questions for the record
submitted by Dina Bakst, Co-Founder & Co-President, A Better Balance,
at 7-10).
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THE PREGNANT WORKERS FAIRNESS ACT PROMOTES PREGNANT WORKERS' HEALTH AND
ECONOMIC WELLBEING
Women comprise nearly half the U.S. workforce.\77\ Women
are the primary, sole, or co-breadwinners in nearly 64 percent
of families, earning at least half of their total household
income.\78\ Not surprisingly, women are increasingly working
later into their pregnancies. According to the U.S. Census
Bureau, between 2006 and 2008, 88 percent of first-time mothers
worked during their last trimester and 82 percent worked into
their last month of pregnancy.\79\ When pregnant workers are
not provided reasonable accommodations on the job, they are
oftentimes forced to choose between economic security and their
health or the health of their babies.
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\77\Catalyst, Quick Take: Women in the Workforce--United States
(June 5, 2019), https://www.catalyst.org/research/women-in-the-
workforce-united-states/.
\78\Sarah Jane Glynn, Center for American Progress, Breadwinning
Mothers Continue to be the U.S. Norm 5 (2019), https://
cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf.
\79\Lynda Laughlin, U.S. Bureau of the Census, Maternity Leave and
Employment Patterns of First-Time Mothers: 1961-2008 6 (2011), https://
www.census.gov/library/publications/2011/demo/p70-128.html.
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REASONABLE ACCOMMODATIONS FOR PREGNANT WORKERS PROMOTE HEALTHY
PREGNANCIES
According to the American College of Obstetricians and
Gynecologists (ACOG), providing reasonable accommodations to
pregnant workers is critical for the health of women and their
children.\80\ Depending on the circumstances of the pregnancy,
physicians recommend that pregnant women avoid or limit certain
risks in the workplace, including exposure to certain
compounds, heavy lifting, overnight work, extended hours, or
prolonged periods of sitting or standing.\81\ Some studies have
shown increased risk of miscarriage, preterm birth, low birth
weight, urinary tract infections, and fainting as a result of
these exposures.\82\
---------------------------------------------------------------------------
\80\The American College of Obstetricians and Gynecologists,
Employment Considerations During Pregnancy and the Postpartum Period
e117 (2018), https://www.acog.org/-/media/project/acog/acogorg/
clinical/files/committee-opinion/articles/2018/04/employment-
considerations-during-pregnancy-and-the-postpartum-period.pdf.
\81\Id. at, e120.
\82\Dina Bakst et al., A Better Balance, Long Overdue: It's Time
for the Federal Pregnant Workers Fairness Act 23 (2019), https://
www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf.
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According to ACOG, these health risks can be addressed with
simple accommodations such as: seating; water; closer parking;
flexible hours; appropriately sized uniforms and safety
apparel; additional breaktime to use the bathroom, eat, and
rest; excusing the worker from strenuous activities; and
excusing the worker from activities that involve exposure to
compounds not safe for pregnancy.\83\ A 2014 survey found that
the most common temporary pregnancy-related accommodation
sought (71 percent of participants) was more frequent breaks
(e.g., bathroom breaks).\84\
---------------------------------------------------------------------------
\83\Id.
\84\Nat'l Partnership for Women and Families, Listening to Mothers:
The Experiences of Expecting and New Mothers in the Workplace 2 (2014),
https://www.nationalpartnership.org/our-work/resources/economic-
justice/pregnancy-discrimination/listening-to-mothers-experiences-of-
expecting-and-new-mothers.pdf.
---------------------------------------------------------------------------
A 2014 survey issued by the National Partnership for Women
and Families estimated that one quarter million pregnant
workers are denied their requests for reasonable workplace
accommodations nationally each year.\85\ Additionally, women of
color are especially impacted as they are more likely to work
in low wage, physically demanding jobs. In written testimony
submitted for the record for the October 22nd Hearing, Emily
Martin of the National Women's Law Center stated:
---------------------------------------------------------------------------
\85\Id. at 3.
[O]ver 40 percent of full-time workers in low-wage
jobs report that their employers do not permit them to
decide when to take breaks, and roughly half report
having very little or no control over the scheduling of
hours. This culture of inflexibility can lead to
reflexive denials when workers in low-wage jobs seek
pregnancy-related accommodations, which is of
particular concern given that more than one in five
(20.9%) pregnant workers is employed in a low-wage job.
Moreover, pregnant Black women and Latinas are
disproportionately represented in low-wage jobs. Nearly
one in three Black and Latina pregnant workers hold
low-wage jobs (30.0 percent and 31.3 percent,
respectively). This means a lack of clear legal rights
to pregnancy accommodations likely hits Black women and
Latinas particularly hard.\86\
---------------------------------------------------------------------------
\86\Long Overdue: Exploring the Pregnant Workers Fairness Act (H.R.
2694). Before the Subcomm. on Civil Rights & Human Servs. of the H.
Comm. on Educ. & Labor, 116th Cong. (2019) (Statement of Emily Martin,
Vice President for Education and Workplace Justice, National Women's
Law Center, at 3).
When simple accommodations like those suggested by ACOG are
not provided, the impacts on a worker's health and pregnancy
can be deadly. At the October 22nd Hearing, Representative
Steve Cohen (D-TN-9) highlighted a constituent's experience at
---------------------------------------------------------------------------
a warehouse in Memphis, TN:
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 . . .
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.\87\
---------------------------------------------------------------------------
\87\House Committee on Educ. & Labor, Long Over Due: Exploring the
Pregnant Workers' Fairness Act, YouTube (Oct. 22, 2019), https://
www.youtube.com/watch?time_continue=2&v=SI3WK-7KVNE&feature=emb_logo
(See statement of Rep. Steve Cohen, at 1:52:15).
At the October 22nd Hearing, Representative Jahana Hayes
(D-CT-5), a member of the Committee, described her experience
when reasonable accommodations were not provided to her at
---------------------------------------------------------------------------
work:
I was a working mom, an educator who had an
uneventful pregnancy. I was not older [sic] I did not
have any complications and what I thought was a
reasonable accommodation [became] 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.\88\
---------------------------------------------------------------------------
\88\House Committee on Educ. & Labor, Long Over Due: Exploring the
Pregnant Workers' Fairness Act, YouTube (Oct. 22, 2019), https://
www.youtube.com/watch?time_continue=2&v=SI3WK-7KVNE&feature=emb_logo
(See statement of Rep. Jahana Hayes, at 1:08:43).
With the COVID-19 health pandemic ravaging the country,
pregnant workers are in even greater need of reasonable
accommodations. According to the Centers for Disease Control
and Prevention (CDC), ``pregnant people might be at an
increased risk for severe illness from COVID-19.''\89\ Pregnant
women who contract COVID-19 ``are more likely to be
hospitalized and are at increased risk for intensive care unit
(ICU) admission and receipt of mechanical ventilation than
nonpregnant women.''\90\ Women, and in particular women of
color, make up a disproportionate share of the essential
workforce.\91\ Pregnant workers on the frontlines could be at
increased risk of contracting COVID-19 and complicating their
pregnancies. One study of pregnant women in Philadelphia found
that Black and Hispanic women are ``five times more likely to
be exposed to coronavirus.''\92\ Guaranteed reasonable
accommodations could be pivotal in pregnant workers maintaining
healthy pregnancies during COVID-19.
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\89\Pregnancy & Breastfeeding, Ctr. For Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/pregnancy-breastfeeding.html (last visited Aug. 31, 2020).
\90\Pregnancy Data, Ctr. For Disease Control and Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/special-
populations/pregnancy-data-on-covid-19.html (last visited August 31,
2020).
\91\See Hye Jin Rho, Ctr. for Econ. And Policy Research, A Basic
Demographic Profile of Workers in Frontline Industries 3 (2020),
https://cepr.net/a-basic-demographic-profile-of-workers-in-frontline-
industries/. See also Jocelyn Frye, Ctr. For American Progress, On the
Frontlines at Work and at Home: The Disproportionate Economic Effects
of the Coronavirus Pandemic on Women of Color 8 (2020), https://
www.americanprogress.org/issues/women/reports/2020/04/23/483846/
frontlines-work-home/
\92\News Release, Penn Medicine News, Pregnant Black and Hispanic
Women Five Times More Likely to Be Exposed to Coronavirus (July 29,
2020), https://www.pennmedicine.org/news/news-releases/2020/july/
pregnant-black-and-hispanic-women-five-times-more-likely-to-be-exposed-
to-coronavirus.
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REASONABLE ACCOMMODATIONS FOR PREGNANT WORKERS PROMOTE FAMILIES'
ECONOMIC STABILITY
Families increasingly rely on pregnant workers' income.
Seventy-five percent of women will be pregnant and employed at
some point in their careers.\93\ In 2017, 41 percent of mothers
were the sole or primary breadwinners in their households, and
one-quarter of mothers were co-breadwinners, bringing home 25
percent to 49 percent of earnings for their families.\94\
Ensuring pregnant workers have reasonable accommodations helps
ensure that pregnant workers remain healthy and earn an income
when they need it the most. Pregnant mothers want, and
oftentimes need, to keep working during their pregnancies, both
for income and to retain health insurance.\95\ According to an
analysis from the non-profit organization A Better Balance:
---------------------------------------------------------------------------
\93\Dina Bakst et al., A Better Balance, Long Overdue: It's Time
for the Federal Pregnant Workers Fairness Act 23 (2019), https://
www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf.
\94\Sarah Jane Glynn, Center for American Progress, Breadwinning
Mothers Continue to be the U.S. Norm 5 (2019), https://
cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf.
\95\A Better Balance, Pregnant and Jobless: Thirty-Seven Years
after Pregnancy Discrimination Act, Pregnant Women Still Choose Between
a Paycheck and a Healthy Pregnancy 11 (2015), https://
www.abetterbalance.org/wp-content/uploads/2017/01/
PregnantandJobless.pdf.
Many pregnant workers are forced to use up allotted
leave time early, sometimes even before they give
birth, leaving no time remaining for recovery from
childbirth. Others are fired when they request
accommodations or exhaust their leaves of absence, and
then face a particularly difficult time re-entering the
workforce as new mothers. Some women lose their health
benefits when they are fired or forced onto unpaid
leave and then must switch providers and/or delay
medical care while securing replacement health
insurance. For women who lose their health insurance
shortly before going into labor, they could be looking
at staggering healthcare costs for childbirth, which
averages $30,000 for a vaginal delivery and $50,000 for
a C-section in the U.S.\96\
---------------------------------------------------------------------------
\96\Dina Bakst et al., A Better Balance, Long Overdue: It's Time
for the Federal Pregnant Workers Fairness Act 23 (2019), https://
www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf.
Pregnant workers who are pushed out of the workplace might
feel the effects for decades, losing out on everything from
401(k) or other retirement contributions to short-term
disability benefits, seniority, pensions, social security
contributions, life insurance, and more.\97\
---------------------------------------------------------------------------
\97\Pregnant and Jobless, supra note 96, at 11.
---------------------------------------------------------------------------
Guaranteeing reasonable accommodations for pregnant workers
also promotes women's labor force participation. In a letter to
Congress, eighteen leading members of the employer community
encouraged Congress to pass the PWFA because ``[w]omen's labor
force participation is critical to the strength of our
companies the growth of our economy and the financial security
of most modern families''\98\ As Ms. Wilbur testified at the
October 22nd Hearing:
---------------------------------------------------------------------------
\98\Letter from Adobe et al., to Members of Congress (June 17,
2020) https://www.nationalpartnership.org/our-work/resources/economic-
justice/coalition/an-open-letter-in-
support-of-PWFA-from-private-sector-employers.pdf.
The Act would help boost our country's workforce
participation rate among women. In states like
Kentucky, which ranks 44th in the nation for female
labor force participation, we know one contributor to
this abysmal statistic is a mother or soon-to-be mother
who is forced out or quits a job due to a lack of
reasonable workplace accommodations. We can help
prevent such situations by clearly laying the
groundwork for an informed dialogue between employers
and employees on how these employees can continue
working safely and productively throughout the course
of a pregnancy and afterwards.\99\
---------------------------------------------------------------------------
\99\Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Written testimony of
Iris Wilbur, Vice President of Government Affairs & Public Policy,
Greater Louisville Inc.--The Metro Chamber of Commerce, at 2).
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THE PREGNANT WORKERS FAIRNESS ACT ENSURES WORKERS HAVE THE RIGHT TO
REASONABLE ACCOMMODATIONS
The PWFA establishes a pregnant worker's right to
reasonable accommodations and eliminates the evidentiary
hurdles to defend that right. It applies to private sector
employers with 15 or more employees as well as public sector
employers. Covered employers must make reasonable
accommodations and cannot deny employment opportunities for job
applicants or employees affected by a ``known limitation''
related to pregnancy, childbirth, or a related medical
condition.\100\ Under the PWFA, a ``known limitation'' means a
physical or mental condition related to, affected by, or
arising out of pregnancy, childbirth, or related medical
conditions that the pregnant worker or her representative has
communicated to the employer. Similar to the ADA, employers are
not required to make an accommodation if it imposes an undue
hardship on an employer's business.
---------------------------------------------------------------------------
\100\National Partnership For Women And Families, Pregnant Workers
Fairness Act Section by Section 1 (2019), http://
www.nationalpartnership.org/our-work/resources/workplace/
pregnancy-discrimination/pregnant-workers-fairness-act-section-by-
section.pdf.
---------------------------------------------------------------------------
For private sector employees and job applicants, the PWFA
is written to mirror the enforcement powers, procedures, and
remedies established under the Civil Rights Act of 1964.\101\ A
court may award lost pay, interest, compensatory damages,
punitive damages, costs, reasonable attorneys' fees, and
experts' fees, to the extent that such relief is available
under the law. For public sector employees and job applicants,
the PWFA provides mirrors the powers, remedies, and procedures
under the Congressional Accountability Act,\102\ Title V of the
United States Code,\103\ Section 717 of the Civil Rights Act of
1964,\104\ and the Government Employee Rights Act of 1991.\105\
For both the private and public sectors, if the employer
engaged in good faith negotiations with the employee during the
interactive process but the parties cannot agree to a
reasonable accommodation, the employer is not liable for
damages.
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\101\42 U.S.C. Sec. 2000e.
\102\2 U.S.C. Sec. 1301.
\103\3 U.S.C. Sec. 411.
\104\42 U.S.C. Sec. 2000e-16.
\105\42 U.S.C. Sec. 2000e-16b.
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THE PREGNANT WORKERS FAIRNESS ACT MIRRORS KEY PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT OF 1990
The PWFA requires private sector employers with 15 or more
employees and public sector employers to make ``reasonable
accommodations'' to the ``known limitations'' related to
pregnancy, childbirth, or related medical conditions of a
``qualified'' employee unless doing so would be an ``undue
hardship'' for the employer. Additionally, the PWFA uses ADA
terminology to require the use of the ``interactive process''
for establishing reasonable accommodations.
THE PREGNANT WORKERS FAIRNESS ACT INCLUDES A WIDE ARRAY OF PREGNANCY-
RELATED CONDITIONS
Throughout the bill's text, the PWFA ensures that workers
have access to reasonable accommodations for conditions
connected with a pregnancy, not just a pregnancy itself.
Section 2 guarantees workers reasonable accommodations for the
``known limitations related to the pregnancy, childbirth, or
related medical conditions of a qualified employee.'' The bill
further defines ``known limitations'' to mean a physical or
mental condition related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions that the
employee has communicated to the employer, whether or not such
limitation meets the definition of disability outlined in the
ADA. The definition of ``known limitation'' allows the worker
to communicate her need for a reasonable accommodation.
However, this provision is broad and recognizes that there may
be times when a worker's representative may communicate this
request on her behalf. Importantly, PWFA does not import the
ADA's definition of disability, but rather requires employers
to make accommodations to the ``known limitations'' related to
pregnancy, childbirth, or related medical conditions.
ONLY ``QUALIFIED EMPLOYEES'' ARE ELIGIBLE FOR THE PREGNANT WORKERS
FAIRNESS ACT'S REASONABLE ACCOMMODATIONS
The PWFA limits which employees are eligible for reasonable
accommodations to those employees and applicants who are
qualified. The definition of qualified under PWFA is very
similar to the definition used in the ADA, which requires that
the applicant or employee must ``satisfy job requirements for
educational background, employment experience, skills,
licenses, and any other qualification standards that are job
related and be able to perform those tasks that are essential
to the job (``essential functions''), with or without
reasonable accommodation.''\106\
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\106\The ADA: Your Responsibilities as an Employer, U.S. Equal
Emp't Opportunity Comm'n (Jan. 15, 1997) https://www.eeoc.gov/facts/
ada17.html#: :text=Essential%20functions%20are%
20the%20basic,tasks%20are%20essential%20to%20performance.
---------------------------------------------------------------------------
The PWFA defines a qualified employee as ``an employee or
applicant who, with or without reasonable accommodations, can
perform the essential functions of the employment
position.''\107\ PWFA's ``qualified individual'' definition
deviates from the ADA's by providing the following caveat:
``[E]xcept that an employee or applicant shall be considered
qualified if--(A) any inability to perform an essential
function is for a temporary period; (B) the essential function
could be performed in the near future; and (C) the inability to
perform the essential function can be reasonably
accommodated.''\108\
---------------------------------------------------------------------------
\107\H.R. 2694, 116th Cong. Sec. 5(6) (2019) (as reported).
\108\Id.
---------------------------------------------------------------------------
This language was inserted into the PWFA to make clear that
the temporary inability to perform essential functions due to
pregnancy does not render a worker ``unqualified.'' Just as
there is precedent under the ADA for the temporary excusal of
essential functions, there may be a need for a pregnant worker
to temporarily perform other tasks before fully returning to
her position. Under the ADA, courts have found workers are
entitled to reasonable accommodations if they only need a
finite leave of absence or a transfer that would allow them to
perform the essential functions of the job ``in the near
future.''\109\
---------------------------------------------------------------------------
\109\See, e.g. Robert v. Bd. of Cty. Comm'rs of Brown Cty., Kans.,
691 F.3d 1211, 1218 (10th Cir. 2012).
---------------------------------------------------------------------------
Because the ADA's ``essential functions'' language is
mirrored in the PWFA, current understanding of ``essential
functions'' under the ADA is instructive to the PWFA. According
to the EEOC, factors to consider in determining if a function
is ``essential'' include:
whether the reason the position exists is to
perform that function;
the number of other employees available to
perform the function or among whom the performance of
the function can be distributed; and
the degree of expertise or skill required to
perform the function.\110\
---------------------------------------------------------------------------
\110\The ADA: Your Responsibilities as an Employer, U.S. Equal
Emp't Opportunity Comm'n (Jan. 15, 1997) https://www.eeoc.gov/facts/
ada17.html#: :text=Essential%20functions%20
are%20the%20basic,tasks%20are%20essential%20to%20performance.
---------------------------------------------------------------------------
A written job description prepared before advertising or
interviewing for a job will be considered as evidence of
``essential functions,'' but it is not the only evidence
considered. Other kinds of evidence that the EEOC will consider
include:
the actual work experience of present or
past employees in the job;
the time spent performing a function;
the consequences of not requiring that an
employee perform a function; and
the terms of a collective bargaining
agreement.\111\
---------------------------------------------------------------------------
\111\Id.
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THE PREGNANT WORKERS FAIRNESS ACT USES THE REASONABLE ACCOMMODATION
FRAMEWORK WITHIN THE AMERICANS WITH DISABILITIES ACT OF 1990
The PWFA uses the term ``reasonable accommodation,'' as
defined under the ADA, throughout the bill's text. Under the
ADA, a ``reasonable accommodation'' means:
(i) Modifications or adjustments to a job application
process that enable a qualified applicant with a
disability to be considered for the position such
qualified applicant desires; or
(ii) Modifications or adjustments to the work
environment, or to the manner or circumstances under
which the position held or desired is customarily
performed, that enable an individual with a disability
who is qualified to perform the essential functions of
that position; or
(iii) Modifications or adjustments that enable a
covered entity's employee with a disability to enjoy
equal benefits and privileges of employment as are
enjoyed by its other similarly situated employees
without disabilities.\112\
---------------------------------------------------------------------------
\112\29 C.F.R. Sec. 1630.2(o).
---------------------------------------------------------------------------
Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies,
and the provision of qualified readers or interpreters are all
included in a non-exhaustive list of possible ADA
accommodations.\113\
---------------------------------------------------------------------------
\113\42 U.S.C. Sec. 12111.
---------------------------------------------------------------------------
The Job Accommodation Network (JAN), an ADA technical
assistance center funded by the U.S. Department of Labor's
Office of Disability Employment Policy (ODEP), lists numerous
potential accommodations related to disabilities that might
arise during pregnancy, including more than 20 suggested
accommodations just for a lifting restriction related to
pregnancy; the PWFA would include all of these accommodations
as possibilities as well. Other possible accommodations that
would be available under the PWFA include scheduling changes
due to morning sickness or reassignment to a vacant position.
Under the ADA, ``[a] qualified individual with a disability may
work part-time in his/her current position, or occasionally
take time off, as a reasonable accommodation if it would not
impose an undue hardship on the employer.''\114\ Similarly,
leave is one possible accommodation under the PWFA, including
time off to recover from delivery. However, Section 2(4) of the
PWFA makes clear that an employer ``cannot require a qualified
employee to take leave, whether paid or unpaid, if another
reasonable accommodation can be provided.''\115\
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\114\U.S. Equal Emp't Opportunity Comm'n, The Family and Medical
Leave Act, the ADA, and Title VII of the Civil Rights Act of 1964
(1995), https://www.eeoc.gov/laws/guidance/family-and-medical-leave-
act-ada-and-title-vii-civil-rights-act-1964.
\115\H.R. 2694, 116th Cong. Sec. 2(4) (2019) (as reported).
---------------------------------------------------------------------------
EMPLOYERS ARE NOT REQUIRED TO PROVIDE REASONABLE ACCOMMODATIONS THAT
CREATE AN UNDUE HARDSHIP
As with the ADA, Section 2 of the PWFA does not require
employers to provide reasonable accommodations that would
impose an undue hardship on the employer. Under the ADA, an
undue hardship is a ``significant difficulty or expense
incurred by a covered entity, when considered in light of a
variety of factors including the structure and overall
resources of the employer and the impact of the accommodation
on the operations of the covered entity.''\116\ Moreover,
although ``undue hardship'' under the ADA is always determined
on a case-by-case basis, ``[i]n general, a larger employer with
greater resources would be expected to make accommodations
requiring greater effort or expense than would be required of a
smaller employer with fewer resources.''\117\ Like the ADA, the
PWFA seeks to balance the interests of the employer and
employee and, although there may be some costs associated with
making a reasonable accommodation, the ``undue hardship''
standard limits the employer's exposure both to overly
burdensome accommodation requests and lawsuits that would
attempt to hold the employer liable for failing to provide a
prohibitively expensive accommodation.
---------------------------------------------------------------------------
\116\29 C.F.R. Sec. 1630.2.
\117\What is Considered an ``Undue Hardship'' for a Reasonable
Accommodation?, ADA National Network, https://adata.org/faq/what-
considered-undue-hardship-reasonable-accommodation (last visited Mar.
19, 2020).
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THE PREGNANT WORKERS FAIRNESS ACT USES THE AMERICANS WITH DISABILITIES
ACT OF 1990'S ``INTERACTIVE PROCESS'' FOR REASONABLE ACCOMMODATIONS
The PWFA explicitly references the ``interactive process''
that has long been used under the ADA--and even before that
under Section 504 of the Rehabilitation Act of 1973\118\--to
determine an effective reasonable accommodation.\119\ In the
context of the ADA, the interactive process ``simply means that
employers and employees with disabilities who request
accommodations work together to come up with
accommodations.''\120\ In some cases under the PWFA, the worker
will request an accommodation that will easily address a known
limitation of pregnancy, rendering the ``interactive process''
either unnecessary or virtually non-existent. For example, a
pregnant worker who is in the last trimester of her pregnancy
who usually stands to do her job may request a stool to sit on.
In this case, the worker's pregnancy is likely known to the
employer or readily apparent, and the solution is inexpensive,
readily available, and--depending on the exact nature of the
job minimally disruptive to the employer's operation. As Ms.
Bakst stated at the October 22nd Hearing:
---------------------------------------------------------------------------
\118\29 U.S.C. Sec. 701.
\119\See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th
Cir 2000), rev'd on other grounds, U.S. Airways, Inc. v. Barnett, 535
U.S. 391 (2002).
\120\Accommodation and Compliance: Interactive Process, Job
Accommodation Network, https://askjan.org/topics/interactive.cfm (last
visited Mar. 19, 2020).
The beauty of the flexible reasonable accommodation
standard within the PWFA is that it makes no
assumptions about what pregnant workers may need or not
need, and therefore it ensures that the law does not
perpetuate gender inequality by providing women with
overly broad and unnecessary protections. Instead, in
recognition that every pregnancy and workplace is
different, the PWFA requires only an interactive
process between employer and employee to determine
whether a reasonable accommodation will allow the
worker to continue working without jeopardizing her
---------------------------------------------------------------------------
health.\121\
\121\Bakst Testimony at 23.
---------------------------------------------------------------------------
However, under the ADA, there may be times when the
``interactive process'' is critical to providing reasonable
accommodations, and an employer may be committing a prohibited
act of discrimination if it fails to engage in the interactive
process in good faith. In interpreting the ADA, one court
noted, ``[t]he ADA imposes upon employers a good-faith duty to
engage [with their employees] in an interactive process to
identify a reasonable accommodation. This duty is triggered
when an employee communicates her disability and desire for an
accommodation--even if the employee fails to identify a
specific, reasonable accommodation.''\122\ This good-faith duty
will apply to employers under the PWFA.
---------------------------------------------------------------------------
\122\Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581
(4th Cir. 2015)
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Under the PWFA, once an employer has been made aware of a
``known limitation'' related to pregnancy, childbirth, or a
related medical condition, the employer will be required to
engage with the employee in the process of identifying a
reasonable accommodation. According to the JAN, there are six
steps to the interactive process under the ADA: recognizing the
request, gathering information including documentation of
disability, exploring accommodation options, choosing an
accommodation, implementing the accommodation, and monitoring
the effectiveness of the accommodation.\123\
---------------------------------------------------------------------------
\123\Accommodation and Compliance: Interactive Process, Job
Accommodation Network, https://askjan.org/topics/interactive.cfm (last
visited Mar. 19, 2020).
---------------------------------------------------------------------------
Under the PWFA, the interactive process would operate in a
similar way for pregnant workers as it has for decades under
the ADA. Both the employer and employee are responsible for
engaging in the interactive process in good faith. Not all of
the steps are required in determining reasonable accommodations
for pregnant workers; oftentimes, the interactive process can
take place in a short amount of time.
An employee who fails to engage in the interactive process
may not later claim that their employer failed to accommodate
their disability under the ADA, or the known limitations of
pregnancy under the PWFA; numerous courts have rejected claims
under the ADA on these grounds.\124\ Additionally, an employer
will not be liable for failure to engage in the interactive
process if the employee ultimately fails to demonstrate the
existence of a reasonable accommodation that would allow her to
perform the essential functions of the position.\125\
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\124\Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 225 (5th
Cir. 2011) (quoting Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 734
(1999)).
\125\Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581
(4th Cir. 2015) (internal quotation marks omitted).
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THE PREGNANT WORKERS FAIRNESS ACT PROVIDES CLARITY FOR EMPLOYERS
As of September 2020, 30 states, the District of Columbia,
and 4 cities require employers to provide accommodations to
pregnant workers. Still, workers and employers face a patchwork
of state and local laws that leave many pregnant workers with
no protections at all. Ms. Wilbur urged Congress to create a
federal standard during the October 22nd Hearing, ``Greater
Louisville is home to many multi-state businesses and corporate
headquarters, so the ability to have uniformity related to
pregnant worker accommodations throughout our region and entire
country is important. Therefore, [Greater Louisville Inc.--The
Metro Chamber of Commerce] urges Congress to advance the PWFA
at the federal level.''\126\
---------------------------------------------------------------------------
\126\Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Written testimony of
Iris Wilbur, Vice President of Government Affairs & Public Policy,
Greater Louisville Inc.--The Metro Chamber of Commerce, at 2).
---------------------------------------------------------------------------
By guaranteeing pregnant workers the right to reasonable
accommodations in the workplace, the PWFA could also decrease
employers' legal uncertainty. Ms. Wilbur attested to this at
the October 22nd Hearing:
The PWFA also gives much-needed clarity because it
explicitly provides `reasonable accommodations' for
pregnant and new mothers, in addition to the proper
procedures for providing them, thereby increasing the
potential to resolve requests for accommodations
quickly and informally (as employers have done for
decades for workers with disabilities) and reducing the
potential for costly litigation. We believe that the
Act will lead to a reduction, not an increase, in
litigation for precisely this reason. At least two
states with pregnant worker accommodation laws have
reported a reduction in litigation since the laws went
into effect. 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
what their obligations are when it comes to
appropriately accommodating pregnant workers and new
mothers. Clearly defining what constitutes `reasonable
accommodations' and when an employer is and is not
obligated to provide them will establish important
guidance for businesses, especially the smaller and
mid-size companies we represent who cannot afford
expensive legal advisors.\127\
---------------------------------------------------------------------------
\127\Id.
The PWFA would provide clarity and uniformity for employers
and would not come at significant cost to employers. The JAN
found that ``fifty-seven percent of requested accommodations by
employees were granted at no cost, while thirty-six percent of
employers reported a one-time cost.''\128\
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\128\Job Accommodation Network, Workplace Accommodations: Low Cost,
High Impact 3 (2019) https://askjan.org/publications/Topic-
Downloads.cfm?pubid=962628&action=download&pubtype=pdf.
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THE PREGNANT WORKERS FAIRNESS ACT DOES NOT ALTER RELIGIOUS EXEMPTIONS
THAT MAY EXIST UNDER CURRENT LAW
The PWFA does not change existing exemptions for religious
employers under current law.\129\ Further, the PWFA remains
neutral with respect to claims that may be brought under the
Religious Freedom Restoration Act (RFRA)\130\ and does not
include language exempting PWFA-covered employers from RFRA's
provisions. Although religious employers may claim that a
required accommodation is a substantial burden on their free
exercise of religion under RFRA, fundamentally the Committee
believes that nondiscrimination provisions are a compelling
government interest and the least restrictive means to achieve
the policy of equal employment opportunity. Moreover, even
though this Administration seeks to erroneously use RFRA to
undermine nondiscrimination provisions,\131\ RFRA cannot and
should not be used to create exemptions that would harm the
rights of an employee.\132\
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\129\Religious employers may be afforded a limited exemption from,
for example, Title VII of the Civil Rights Act of 1964's prohibition on
religious discrimination. See e.g., Rayburn v. Gen. Conf. of Seventh-
Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (``The language and
the legislative history of Title VII both indicate that the statute
exempts religious institutions only to a narrow extent.'') Furthermore,
the constitutional ``ministerial exception'' applies to employees of
houses of worship and religious schools who carry out important
religious functions at houses of worship and religious schools.
Although the types of positions that are covered by the ``ministerial
exception'' are limited, it allows religious employers to disregard
altogether Title VII and other civil rights employment laws for those
positions.
\130\42 U.S.C. Sec. 2000bb.
\131\U.S. Department of Labor, Guidance Regarding Federal Grants
and Executive Order 13798, https://www.dol.gov/agencies/oasam/grants/
religious-freedom-restoration-act (last visited July 7, 2020).
\132\The Establishment Clause of the First Amendment limits the
government's ability to provide religious exemptions from generally
applicable laws for religious or moral reasons. The Constitution
requires that any ``accommodation must be measured so that it does not
override other significant interests'' or have a ``detrimental effect
on any third party.'' Cutter v. Wilkinson, 544 U.S. 709, 722 (2005);
Burwell v. Hobby Lobby Stores, Inc., 123 S. Ct. 2751, 2781 n. 37
(citing Cutter, 544 U.S. at 720). Providing such an exemption under the
PWFA would undoubtedly cause harm to women.
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THE PREGNANT WORKERS FAIRNESS ACT ENJOYS BROAD BIPARTISAN SUPPORT
According to a recent poll, 89 percent of voters favor the
PWFA, with 69 percent of voters strongly favoring it.\133\ The
PWFA has ``high levels of support across the political spectrum
including Republicans (81%), Independents (86%), and Democrats
(96%) along with Trump voters (80%) and Clinton voters (97%),
very conservative voters (80%), and liberals (95%).''\134\
---------------------------------------------------------------------------
\133\Brian Nienaber, The Tarrance Group, Pregnant Workers Fairness
Act Survey Memo 2 (2020) https://www.aclu.org/sites/default/files/
field_document/pwfa_survey_memo_2-20-20_1_1_2.pdf.
\134\Id.
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The PWFA is about ensuring that pregnant workers can stay
safe and healthy on the job by being provided reasonable
accommodations for pregnancy, childbirth, or related medical
conditions unless those accommodations are an undue burden for
the employer. The PWFA is one crucial step needed to reduce the
disparities pregnant workers face by ensuring that pregnant
women, and especially pregnant women of color, can remain safe
and healthy at work.
Section-by-Section Analysis
Section 1. Short title
This section states that the title of the bill is the
Pregnant Workers Fairness Act (the Act or this Act).
Section 2. Nondiscrimination with regard to reasonable accommodations
related to pregnancy
This section makes it unlawful for a covered entity to:
Fail to provide reasonable accommodations
for pregnant workers (Pregnant workers covered under
the Act are those qualified employees with known
limitations related to pregnancy, childbirth, or
related medical conditions. Covered entities do not
have to provide reasonable accommodations if doing so
would cause them undue hardship.);
Require pregnant workers to accept an
accommodation other than a reasonable accommodation
arrived at through the interactive process (as set
forth in Section 5);
Deny employment opportunities to pregnant
workers because of the need for a reasonable
accommodation;
Require a pregnant worker to take paid or
unpaid leave if another reasonable accommodation can be
provided; or
Take adverse employment actions against a
pregnant worker for requesting or using a reasonable
accommodation.
Section 3. Remedies and enforcement
In general under this section, pregnant workers alleging
pregnancy discrimination under the Act shall have the same
rights and remedies available to those employees alleging
discrimination on the basis of race, color, religion, sex, or
national origin under Title VII of the Civil Rights Act of
1964,\135\ the Congressional Accountability Act of 1995,\136\
Chapter 5 of Title 3 of the United States Code,\137\ Section
717 of the Civil Rights Act of 1964,\138\ and the Government
Employee Rights Act of 1991.\139\ Remedies include equitable
relief, including back pay, and reasonable attorney's fees.
Claimants may also be awarded compensatory and punitive
damages.\140\
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\135\42 U.S.C. Sec. 2000e.
\136\2 U.S.C. Sec. 1301.
\137\3 U.S.C. Sec. 411.
\138\42 U.S.C. Sec. 2000e-16.
\139\42 U.S.C. Sec. 2000e-16b.
\140\Punitive damages generally cannot be awarded to employees of
the legislative, judicial, or executive branch. Compensatory and
punitive damages are subject to statutory caps. For employers with 15-
100 employees, the limit is $50,000. For employers with 101-200
employees, the limit is $100,000. For employers with 201-500 employees,
the limit is $200,000. For employers with more than 500 employees, the
limit is $300,000.
---------------------------------------------------------------------------
Prohibition Against Retaliation. The Act makes it unlawful
to coerce, intimidate, threaten, or interfere with any
individual who has exercised rights provided under the Act or
who has helped another individual exercise rights provided
under the Act.
Limitation. The Act provides covered entities with a good
faith defense. The Act provides that damages may not be awarded
if the covered entity demonstrates good faith in engaging in
the interactive process with the pregnant worker to identify
and make a reasonable accommodation. This provision mirrors a
similar provision under the Americans with Disabilities Act of
1990.\141\
---------------------------------------------------------------------------
\141\42 U.S.C. Sec. 12101.
---------------------------------------------------------------------------
Section 4. Rulemaking
This section requires the EEOC to issue regulations,
including examples of reasonable accommodations under the Act,
within two years.
Section 5. Definitions
This section defines the following key terms used
throughout the Act.
Commission. The term Commission refers to the Equal
Employment Opportunity Commission (EEOC).
Covered Entity. A covered entity includes a private sector
employer who has 15 or more employees, employment agencies,
labor organizations, legislative branch employers, executive
branch employers, governmental agencies (including state and
local governments and the government of the District of
Columbia), political subdivisions, units of the judicial branch
of the Federal Government having positions in the competitive
service, and the offices of state and local elected officials.
Employee. An employee is someone who is employed by a
private-sector employer; this includes job applicants. The term
employee also includes those in the legislative branch; the
executive branch; certain federal judicial branch employees
(those with positions in the competitive service); and state
and local government employees, including those who work for
elected officials.
Person. A person is defined the same way such term is
defined under Title VII of the Civil Rights Act of 1964.
Known Limitation. A known limitation means a physical or
mental condition related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions that the
employee has communicated to the employer, whether or not such
limitation meets the definition of disability outlined in the
Americans with Disabilities Act of 1990.
Qualified Employee. A qualified employee is an employee, or
job applicant, who, with or without reasonable accommodation,
can perform the essential functions of the job (essential
function). An individual is considered qualified if any
inability to perform an essential function is for a temporary
period, the essential function could be performed in the near
future, and the inability to perform the essential function can
be reasonably accommodated.
Reasonable Accommodation. A reasonable accommodation is
defined the same way such term is defined under the Americans
with Disabilities Act of 1990. This definition adopts the
requirement for a good faith interactive negotiation between
employers and employees to determine a reasonable accommodation
(interactive process). Under the Act, reasonable accommodations
would be provided in light of known limitations related to
pregnancy, rather than a disability.
Undue Hardship. An undue hardship is defined the same way
such term is defined under the Americans with Disabilities Act
of 1990. An undue hardship means an action requiring
significant difficulty or expense, when considering factors
such as the nature and cost of the accommodation and the
employer's overall financial resources.
Section 6. Waiver of State Immunity
This section makes clear that States shall not be immune
from the Act under the 11th amendment to the U.S. Constitution.
Section 7. Relationship to Other Laws
This section makes clear that nothing in the Act limits
pregnant workers' rights under a federal, State, or local law
that provides greater or equal protection.
Section 8. Severability
This section states that if any portion of the Act is found
unconstitutional, the remainder of the Act shall not be
affected.
Explanation of Amendments
The amendments, including the amendments in the nature of a
substitute, are explained in the descriptive portions of this
report.
Application of Law to the Legislative Branch
Pursuant to section 102(b)(3) of the Congressional
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 2694, as
amended, applies to terms and conditions of employment within
the legislative branch. Section 5(2)(B)(i) includes an
employing office as defined by section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301) and section 411(c)
of title 3, United States Code, in the definition of a
``covered entity.''
Unfunded Mandate Statement
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. No. 104-4), the Committee traditionally adopts as
its own the cost estimate prepared by the Director of the
Congressional Budget Office (CBO) pursuant to section 402 of
the Congressional Budget and Impoundment Control Act of 1974.
The Committee reports that because this cost estimate was not
timely submitted to the Committee before the filing of this
report, the Committee is not in a position to make a cost
estimate for H.R. 2694, as amended.
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2694 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 2694:
Statement of Performance Goals and Objectives
Pursuant to clause (3)(c) of rule XIII of the Rules of the
House of Representatives, the goals of H.R. 2694 are to
establish an affirmative right to reasonable accommodations for
workers with known limitations relating to childbirth,
pregnancy, or related medical conditions without imposing an
undue hardship for employers.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 2694 establishes or reauthorizes a program of
the Federal Government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Hearings
Pursuant to section 103(i) of H. Res. 6 for the 116th
Congress, on October 22, 2019, the Committee on Education and
Labor's Subcommittee on Civil Rights and Human Services held a
hearing entitled ``Long Over Due: Exploring the Pregnant
Workers Fairness Act (H.R. 2694),'' which was used to consider
H.R. 2694. The hearing explored the health and economic effects
of pregnant workers' lack of access to reasonable
accommodations and examined how H.R. 2694 would fill a gap in
the existing legal framework by guaranteeing pregnant workers
the right to reasonable workplace accommodations. The Committee
heard testimony from: The Honorable Jerrold Nadler (D-NY-10);
Michelle Durham, former Emergency Medical Technician (EMT),
Arab, AL; Iris Wilbur, Vice President of Government Affairs and
Public Policy at Greater Louisville Inc.--The Metro Chamber of
Commerce, Louisville, KY; Dina Bakst, Co-Founder and Co-
President of A Better Balance, New York, NY; and Ellen
McLaughlin, Partner at Seyfarth Shaw LLP, Chicago, IL.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
New Budget Authority and CBO Cost Estimate
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget and Impoundment Control Act of 1974, and
pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives and section 402 of the Congressional
Budget and Impoundment Control Act of 1974, the Committee has
requested but not received a cost estimate for the bill from
the Director of the Congressional Budget Office.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2694.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget and Impoundment
Control Act of 1974. The Committee reports that because this
cost estimate was not timely submitted to the Committee before
the filing of this report, the Committee is not in a position
to make a cost estimate for H.R. 2694, as amended.
Changes in Existing Law Made by the Bill, as Reported
The bill does not change existing law for purposes of
clause 3(e) of rule XIII of the Rules of the House of
Representatives.
MINORITY VIEWS
Introduction
Committee Republicans unequivocally believe that
discrimination of any kind is abhorrent and should not be
tolerated, and that unlawful discrimination should not be
permitted. This is why federal laws are already in place to
protect workers from discrimination in the workplace, including
discrimination because of pregnancy.
Prior to the Committee markup of H.R. 2694 on January 14,
2020, significant progress was made negotiating a bipartisan
compromise, and Committee Republicans commend Chairman Robert
C. ``Bobby'' Scott (D-VA) for his willingness to negotiate on
several issues. The Chairman's Amendment in the Nature of a
Substitute (Scott ANS) addressed a number of important concerns
raised by Republicans, resulting in a much-improved product.
However, one significant issue remains to be addressed in H.R.
2694 relating to protections for religious organizations.
PURPOSE OF H.R. 2694
H.R. 2694 is a stand-alone bill that would create a new
statute. H.R. 2694 makes it unlawful for an employer not to
provide reasonable accommodations for known limitations related
to the pregnancy, childbirth, or related medical conditions of
an employee or applicant unless the employer can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business.\1\ H.R. 2694 is intended to address
perceived shortcomings in the Supreme Court's 2015 decision in
Young v. United Parcel Service, Inc. (Young).\2\ The Supreme
Court in that case applied the requirements of the Pregnancy
Discrimination Act of 1978 (PDA), which is part of Title VII of
the Civil Rights Act of 1964 (CRA) and states that
discrimination because of ``sex'' includes discrimination
because of ``pregnancy, childbirth, or related medical
conditions; and women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same for all
employment-related purposes . . . as other persons not so
affected but similar in their ability or inability to
work.''\3\
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\1\H.R. 2694, 116th Cong. Sec. 2(1) (2019).
\2\575 U.S. 206 (2015).
\3\42 U.S.C. Sec. 2000e(k).
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In Young, a part-time driver for United Parcel Service
(UPS) named Peggy Young requested an accommodation of light
duty due to her pregnancy and her doctor's recommendation that
she not lift over 20 pounds. UPS refused the request and did
not allow her to return to work because lifting over 20 pounds
was an essential function of her job. Notably, UPS accommodated
on-the-job injuries with light-duty assignments but did not
offer light duty to employees who had medical conditions
unrelated to a work injury. UPS based its decision on the
provisions of a collective bargaining agreement.\4\
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\4\In 2014, UPS changed its policy to make pregnant employees
eligible for light-duty assignments prior to oral argument at the
Supreme Court, but the Court proceeded with the case. Brief for
Respondent at 11, Young v. United Parcel Serv., 575 U.S. 206 (2015)
(No. 12-1226).
---------------------------------------------------------------------------
The Supreme Court ruled in favor of Ms. Young, vacating the
judgment of the lower court, and held that a pregnant employee
can potentially establish discrimination under the PDA by
alleging the employer denied a request for an accommodation and
the employer accommodated others similar in their ability or
inability to work. Under the PDA, a plaintiff can reach a jury
by showing ``the employer's policies impose a significant
burden on pregnant workers'' and the employer's non-
discriminatory reasons for the policies are not ``sufficiently
strong to justify the burden.''\5\ Differential treatment
between pregnant workers and other workers is a factor in
determining whether the employer's policies impose a
significant burden on pregnant workers and whether the
employer's non-discriminatory reasons are sufficiently strong
to justify the burden. However, the Court did not agree that
pregnancy accommodations must automatically be provided to the
same extent as any other accommodations, including on-the-job
injury accommodations. In addition, the Court noted that
statutory changes to Title I of the Americans with Disabilities
Act of 1990 (ADA) in the Americans with Disabilities Act
Amendments Act of 2008, which were made after the facts at
issue in Young, ``may limit the future significance'' of the
Court's interpretation of the PDA because Congress ``expanded
the definition of `disability' under the ADA to make clear that
`physical or mental impairment[s] that substantially limi[t]'
an individual's ability to lift, stand or bend are ADA-covered
disabilities.''\6\
---------------------------------------------------------------------------
\5\575 U.S. at 229.
\6\Id. at 218-19. The plaintiff did not petition the Supreme Court
to review whether UPS had violated the ADA. The Court noted that the
Equal Employment Opportunity Commission (EEOC) issued regulations in
2014 interpreting the ADA to require employers to accommodate employees
whose temporary lifting restrictions originated off the job. Id. at
219.
---------------------------------------------------------------------------
H.R. 2694 explicitly requires a reasonable accommodation
for known limitations related to pregnancy, childbirth, or
related medical conditions without reference to whether other
workers' limitations, injuries, or impairments have been
accommodated, but it does so in a stand-alone bill that does
not amend the PDA or the ADA.
NEGOTIATED IMPROVEMENTS TO H.R. 2694
Essential Functions Requirement
At a hearing on H.R. 2694 on October 22, 2019,
Representative Jerrold Nadler (R-NY), the bill's author,
testified before the Subcommittee on Civil Rights and Human
Services that the legislation uses ``the framework and language
of the ADA.''\7\ Accordingly, H.R. 2694 incorporates the ADA
definitions of ``reasonable accommodation'' and ``undue
hardship.''\8\ The ADA prohibits employment discrimination ``on
the basis of disability,'' which can include ``not making
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a
disability.''\9\ However, to qualify for potential protection
under the ADA, the employee or applicant must be able to
``perform the essential functions of the employment position,''
``with or without reasonable accommodation.''\10\
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\7\Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694): Hearing Before the Subcomm. on Civ. Rights & Hum. Serv. of
the H. Comm. on Educ. & Lab., 116th Cong. (2019) (written statement of
Rep. Jerrold Nadler at 4).
\8\H.R. 2694, 116th Cong. Sec. 5(5) (2019).
\9\42 U.S.C. Sec. 12112(a), (b)(5).
\10\Id. Sec. 12111(8).
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H.R. 2694 as introduced did not include a requirement that
the employee or applicant be able to perform the essential
functions of the job, with or without reasonable accommodation.
Ms. Ellen McLaughlin, a partner with Seyfarth Shaw LLP
specializing in labor and employment law, raised significant
concerns with this omission, calling it a ``key provision of
the ADA'' when she testified before the Subcommittee on Civil
Rights and Human Services. She stated:
The types of accommodation that an employer must
provide under the ADA are numerous and defined, but
they do not extend to accommodating an employee who
remains unable to perform the essential functions of
the job even with those accommodations. By eliminating
the essential function criteria, the Bill appears to
require employers to take steps to keep the employee on
the job regardless of her ability to continue to
perform the core functions of the job. The consequences
for employers--and employees--are unclear. Does this
require an employer to keep an employee in a position
despite being unable to perform the core tasks
associated with that position--effectively allowing the
employee to report for work but not do the job? If an
employee cannot work mandatory overtime due to
pregnancy and mandatory overtime is clearly an
essential job function, is the pregnant employee--
unlike the employee with a disability under the ADA--
excused from working the mandatory overtime? Or does it
require an employer to reassign the employee to a
totally different position and, if so, can the employer
make appropriate wage adjustments to reflect the
compensation in that job?\11\
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\11\Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694): Hearing Before the Subcomm. on Civ. Rights & Hum. Serv. of
the H. Comm. on Educ. & Lab., 116th Cong. (2019) (written statement of
Ellen McLaughlin, Partner, Seyfarth Shaw LLP, at 7-8) (emphasis in
original) [hereinafter McLaughlin Statement].
To address these concerns, the Scott ANS adds a requirement
that the employee or applicant be ``qualified,'' meaning the
individual, ``with or without reasonable accommodation, can
perform the essential functions of the employment
position.''\12\ In addition, to address concerns from
supporters of H.R. 2694 that workers with known limitations
related to pregnancy who are temporarily unable to perform an
essential function be able to receive an accommodation, the
Scott ANS includes an exception that an employee or applicant
``shall be considered qualified if--(A) any inability to
perform an essential function is for a temporary period; (B)
the essential function could be performed in the near future;
and (C) the inability to perform the essential function can be
reasonably accommodated.''\13\
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\12\Scott ANS Sec. 5(6).
\13\Id.
---------------------------------------------------------------------------
This compromise language maintains the ADA essential-
function requirement while indicating it is also appropriate to
consider other ADA forms of reasonable accommodation such as
``job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, . . . and other similar
accommodations''--which are incorporated in H.R. 2694 through
its adoption of the ADA definition of reasonable
accommodation--as well as leave.\14\ The ``essential
functions'' language in the Scott ANS thus incorporates the ADA
concept of ``essential functions'' in H.R. 2694, although
temporary limitations related to pregnancy must also be
considered when determining the appropriate reasonable
accommodation. Moreover, under the Scott ANS, to trigger the
exception to the essential functions requirement, the
limitation must be ``temporary,'' the essential function at
issue must be something that would be performed in the ``near
future,'' and the limitation can be ``reasonably
accommodated,'' which could include leave. The Scott ANS
therefore does not require an employer to allow an employee to
report for work but not do the job.
---------------------------------------------------------------------------
\14\42 U.S.C. Sec. 12111(9)(B); see also EEOC, Employer-Provided
Leave and the Americans with Disabilities Act (``Granting Leave as a
Reasonable Accommodation'').
---------------------------------------------------------------------------
A key part of the ADA interactive process that takes place
between a worker and employer to determine a reasonable
accommodation is often a discussion of the essential functions
of the worker's job. Establishing what are and are not
essential functions is often critical in determining whether
the employee can stay in the current position with a reasonable
accommodation or whether another accommodation--such as job
restructuring, a modified work schedule, reassignment to a
vacant position, or leave--is needed. In its definition of the
term ``qualified individual,'' the ADA states that
``consideration shall be given to the employer's judgment as to
what functions of a job are essential, and if an employer has
prepared a written description before advertising or
interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the
job.''\15\ This is a practical, commonsense provision in the
ADA because it is the employer who must ultimately choose the
duties and assignments of each position so that the enterprise
as a whole can function and thrive. Under H.R. 2694, courts
will also need to consider the employer's judgment regarding
the essential functions of the job.
---------------------------------------------------------------------------
\15\42 U.S.C. Sec. 12111(8).
---------------------------------------------------------------------------
Like the ADA, H.R. 2694 does not require ``red circle''
rates of pay for employees reassigned to vacant positions as
reasonable accommodations. A red circle pay rate is a higher-
than-normal pay rate for the job classification. Under the ADA
and H.R. 2694, if a reasonable accommodation consists of
reassignment to a vacant position, the pay can be commensurate
with the vacant position's normal rate, even if this pay rate
is lower than the rate for the employee's current position.\16\
---------------------------------------------------------------------------
\16\See, e.g., Job Accommodation Network, Technical Assistance
Manual for Title I of the ADA ch. 3.10.5, https://askjan.org/
publications/ada-specific/Technical-Assistance-Manual-for-Title-I-of-
the-ADA.cfm#spy-scroll-heading-32 (employer may reassign individual to
lower-graded position and does not have to maintain the individual's
salary at the level of the higher-graded position).
---------------------------------------------------------------------------
Definition of Known Limitations
The ADA includes a broad, comprehensive definition of
``disability'' so that workers and employers understand what
impairments are covered by the statute.\17\ In contrast, H.R.
2694 as introduced did not define ``known limitations'' related
to pregnancy, childbirth, and related medical conditions. Ms.
McLaughlin in her testimony explained why a definition of this
central term in H.R. 2694 is needed:
---------------------------------------------------------------------------
\17\42 U.S.C. Sec. 12102(1) (``The term `disability' means . . . a
physical or mental impairment that substantially limits one or more
major life activities . . . .); id. Sec. 12102(2)(A) (``[M]ajor life
activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.''); id.
Sec. 12102(2)(B) (``[A] major life activity also includes the operation
of a major bodily function, including but not limited to, functions of
the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.'').
The phrase ``known limitations'' is clearly different
than the definition of a covered disability under the
ADA, and appears to be an express rejection of that
term. While the definitions of the ADA may be
imperfect, they have been interpreted and analyzed by
courts over a period of years, and employers are
familiar with and have been applying the ADA standards
for some time. The decision to not cross-reference the
ADA indicates that a different scope of coverage is
intended by the drafters of the Bill. It is entirely
unclear, however, what scope of coverage is intended,
and precisely how that coverage differs from a covered
disability under the ADA. Given the language of the
Bill, it appears that any limitation of any type is
covered, as long as the employer is aware of it.\18\
---------------------------------------------------------------------------
\18\McLaughlin Statement, supra note 11, at 7.
To address these concerns, the Scott ANS includes a
definition of ``known limitation,'' although this definition is
far from being as detailed or specific as the ADA definition of
``disability.'' The Scott ANS defines ``known limitation'' as a
``physical or mental condition related to, affected by, or
arising out of pregnancy, childbirth, or related medical
conditions that the employee or employee's representative has
communicated to the employer whether or not such condition
meets the definition of disability specified in section 3 of
the Americans with Disabilities Act of 1990 (42 U.S.C.
12102).''\19\ Thus the ``known limitation'' must be a
``physical or mental condition'' related to pregnancy, and it
must be communicated to the employer, who is not under an
obligation to guess or take affirmative steps to find out
whether the worker has a limitation.
---------------------------------------------------------------------------
\19\Scott ANS Sec. 5(5).
---------------------------------------------------------------------------
The Scott ANS definition confirms that ``known limitation''
goes beyond the ADA definition of ``disability'' by stating the
condition can qualify ``whether or not such condition meets the
definition of disability specified in [the ADA.]'' Supporters
of H.R. 2694 were concerned that the already broad ADA
definition of ``disability'' has not been interpreted by all
courts to include limitations associated with pregnancy,
including healthy pregnancies.
While the definition in the Scott ANS of ``known
limitation'' falls far short of the specificity and detail of
the ADA definition of ``disability,'' this compromise language
defining ``known limitation'' is not completely open-ended and
will give workers and employers some guidance. As a backstop,
H.R. 2694's incorporation of the ADA definition of ``reasonable
accommodation'' places a limit on an employer's obligations--
i.e., the requested accommodation must be reasonable and
proportional under the bill. A minor limitation will presumably
only require a minor accommodation.
Interactive Process
Under the ADA, a reasonable accommodation will often be
determined through a balanced, interactive process involving
dialogue between the worker and the employer.\20\ H.R. 2694
incorporates the definition of ``reasonable accommodation''
from the ADA, including a reference to the interactive process
that is typically used.\21\ However, Sections 2(2) and 2(4) of
H.R. 2694 as introduced seem to give the employee unilateral
veto power over offered accommodations, in contrast to the
ADA's balanced, interactive process for determining reasonable
accommodations.\22\ Ms. McLaughlin raised concerns about
Section 2(2) in her testimony:
---------------------------------------------------------------------------
\20\See 29 C.F.R. Sec. 1630.2(o)(2)(3) (``To determine the
appropriate reasonable accommodation it may be necessary for the
covered entity to initiate an informal, interactive process with the
individual with a disability in need of the accommodation. This process
should identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those
limitations.'').
\21\See H.R. 2694, 116th Cong. Sec. 5(5) (2019) (``[T]he terms
`reasonable accommodation' and `undue hardship' have the meanings given
such terms in section 101 of the [ADA] and shall be construed as such
terms have been construed under such Act and as set forth in the
regulations required by this Act, including with regard to the
interactive process that will typically be used to determine an
appropriate reasonable accommodation.'').
\22\See H.R. 2694, 116th Cong. Sec. 5(2) (2019) (unlawful to
``require a job applicant or employee affected by pregnancy,
childbirth, or related medical conditions to accept an accommodation
that such applicant or employee chooses not to accept, if such
accommodation is unnecessary to enable the applicant or employee to
perform her job''); id. Sec. 5(4) (unlawful to ``require an employee to
take leave, whether paid or unpaid, if another reasonable accommodation
can be provided to the known limitations related to the pregnancy,
childbirth, or related medical conditions of an employee'').
The Bill also includes a provision that allows an
employee to not accept an accommodation offered by the
employer. . . . Does this provision really contemplate
that the employee can veto an accommodation proposed by
the employer? Are there any limits to that veto right?
For example, what if the employer believes in good
faith that the employee cannot safely perform the job,
for herself or others, without that specific
accommodation? . . . [A]n employer may want to impose a
restriction on the amount of weight that can be lifted
by an employee in the second or third trimester based
on medical documentation. Can the employer only do so
with the employee's approval?\23\
---------------------------------------------------------------------------
\23\McLaughlin Statement, supra note 11, at 8 (emphasis in
original).
She had similar concerns with Section 2(4), which seems to
give the employee unilateral veto power over an offered
accommodation of leave:
[T]he Bill contemplates that a pregnant employee
cannot be required to go on leave if another
accommodation would address the ``known limitations''
of that employee. . . . What if the pregnant worker is
still physically capable of performing the job, but it
would expose the fetus to unsafe conditions, such as
lead or radiation? Under circumstances such as those,
employers should be able to require the pregnant worker
not to report to the job site, but the Bill appears to
prohibit such a requirement.
It is also unclear what happens if the accommodation sought
by the employee creates an undue hardship on the employer.
Using the ADA scheme, the employer would be able to place the
worker on leave, 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 an undue hardship.\24\
---------------------------------------------------------------------------
\24\McLaughlin Statement, supra note 11, at 8-9.
---------------------------------------------------------------------------
To address these concerns, the Scott ANS amends Section
2(2) to incorporate explicitly the ADA's balanced, interactive
process. Under amended Section 2(2), it is unlawful to
``require a qualified employee affected by pregnancy,
childbirth, or related medical conditions to accept an
accommodation other than any reasonable accommodation arrived
at through the interactive process referred to in section 5(7)
[of the Act].'' This compromise language makes clear that
reasonable accommodations arrived at through the interactive
process, including an accommodation of leave, are not subject
to a unilateral veto by the employee. The longstanding and
well-developed ADA interactive process will be the framework
for accommodations under Sections 2(2) and 2(4).
In determining a reasonable accommodation under the ADA,
when a ``need for an accommodation is not obvious,'' an
employer may require the employee to provide medical
``documentation of the need for the accommodation.''\25\
Because H.R. 2694 incorporates the ADA definition of
``reasonable accommodation,'' including the interactive process
between the employee and employer typically used to determine a
reasonable accommodation, H.R. 2694 presumably allows employers
to require such documentation when the need for an
accommodation is not obvious.
---------------------------------------------------------------------------
\25\29 C.F.R. pt. 1630, App. at 37-38.
---------------------------------------------------------------------------
In addition, the ADA includes a defense the employer can
raise if the employer has a ``qualification standard'' that
includes a ``requirement that an individual shall not pose a
direct threat to the health or safety of other individuals in
the workplace.''\26\ The Supreme Court has ruled that this
includes a direct threat that may be posed to the individual's
own health or safety.\27\ The Occupational Safety and Health
Administration has noted that ``exposure to reproductive
hazards in the workplace is an increasing health concern.''\28\
Under H.R. 2694, if the workplace environment--such as exposure
to chemical, physical, or biological hazards--poses a threat to
the health or safety of the pregnant employee, the employer
will be able to take into account such threats to health or
safety in determining a reasonable accommodation, including
through the interactive process with the employee.
---------------------------------------------------------------------------
\26\42 U.S.C. Sec. 12113(b).
\27\See Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 83 (2002).
\28\U.S. Dep't of Lab., Occupational Safety & Health Admin.,
Reproductive Hazards, https://www.osha.gov/SLTC/reproductivehazards/
index.html.
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Fifteen-employee Threshold
Title VII of the CRA and Title I of the ADA only apply to
employers with 15 or more employees.\29\ H.R. 2694 did not
include a similar limitation of coverage, even though the bill
is intended to address the Supreme Court's 2015 decision in
Young interpreting the PDA (which is part of Title VII), and
even though, as Rep. Nadler testified, H.R. 2694 uses the
framework of the ADA. To address this omission and conform the
bill to Title VII's and the ADA's coverage, the Scott ANS
limits H.R. 2694's coverage to employers with 15 or more
employees by incorporating this limitation from Section 701(b)
of the CRA.\30\
---------------------------------------------------------------------------
\29\42 U.S.C. Sec. 2000e(b); id. Sec. 12111(5)(A).
\30\Scott ANS Sec. 5(2)(B)(i).
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Good Faith Efforts
The CRA states that damages shall not be awarded in ADA
cases if the employer ``demonstrates good faith efforts, in
consultation with the person with the disability who has
informed the covered entity that accommodation is needed, to
identify and make a reasonable accommodation that would provide
such individual with an equally effective opportunity . . .
.''\31\ This is a sensible provision in the CRA so that damages
are not available if the employer has made good faith efforts
through the ADA interactive process to determine a reasonable
accommodation.
---------------------------------------------------------------------------
\31\42 U.S.C. Sec. 1981a(a)(3).
---------------------------------------------------------------------------
Such a provision was not included in H.R. 2694 as
introduced, but the Scott ANS adds a provision so that damages
are not available under the bill if the employer has made good
faith efforts through the interactive process with the worker
to determine a reasonable accommodation for the worker's known
limitations related to pregnancy, childbirth, and related
medical conditions.\32\ The Scott ANS conforms H.R. 2694's
remedies to the CRA's remedies and will further encourage
employers to make good faith efforts to determine reasonable
accommodations under the bill through the balanced, interactive
process.
---------------------------------------------------------------------------
\32\Scott ANS Sec. 3(g).
---------------------------------------------------------------------------
Rulemaking Authority
H.R. 2694 requires the Equal Employment Opportunity
Commission (EEOC) to issue regulations within two years of the
bill's enactment. As introduced, the rulemaking section states:
``Such regulations shall provide examples of reasonable
accommodations addressing known limitations related to
pregnancy, childbirth, or related medical conditions that shall
be provided to a job applicant or employee affected by such
known limitations unless the covered entity can demonstrate
that doing so would impose an undue hardship.''\33\
---------------------------------------------------------------------------
\33\H.R. 2694, 116th Cong. Sec. 4 (2019) (emphasis added).
---------------------------------------------------------------------------
The italicized phrase is too prescriptive. It seems to
indicate that the examples of reasonable accommodations in
EEOC's regulation are mandatory, even if they do not apply to
the specific employer and employee because of circumstances
that are different than those outlined in the example. To
address this concern, the Scott ANS strikes the phrase ``that
shall be provided to a job applicant or employee affected by
such known limitations unless the covered entity can
demonstrate that doing so would impose an undue hardship.''
This strike clarifies that the examples in the regulation are
merely examples of potential reasonable accommodations and not
mandatory.\34\
---------------------------------------------------------------------------
\34\See Scott ANS Sec. 4.
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UNRESOLVED CONCERN WITH H.R. 2694
The CRA is the nation's flagship civil rights law. Title
VII of the CRA includes a limited but longstanding provision
stating that the statute will not apply to a ``religious
corporation, association, educational institution, or society
with respect to the employment of individuals of a particular
religion to perform work connected with the carrying on by such
corporation, association, educational institution, or society
of its activities.''\35\ This provision allows religious
organizations to make religiously based employment decisions so
they are not compelled to violate their faith. They can make
employment decisions based on the worker's religion conforming
to the organization's religion, including following the
religious tenets of the organization,\36\ but the CRA provision
is not a license to discriminate in employment on other
grounds.\37\ The CRA provision applies to ``the entire realm of
the employment arena,'' not just the hiring of individuals.\38\
Title I of the ADA includes a similar provision.\39\
---------------------------------------------------------------------------
\35\42 U.S.C. Sec. 2000e-1(a).
\36\See, e.g., Gosche v. Calvert High Sch., 997 F. Supp. 867, 872
(N.D. Ohio 1998) (religious school could make adherence to moral
standards of the church a requirement for continued employment),
affirmed by 181 F.3d 101 (6th Cir. 1999).
\37\See, e.g., Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772
F.2d 1164, 1166 (4th Cir. 1985) (while ``religious institutions may
base relevant hiring decisions upon religious preferences, Title VII
does not confer upon religious organizations a license to make those
same decisions on the basis of race, sex, or national origin'').
\38\Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 238 F.
Supp.2d 174, 180 (D.D.C. 2002).
\39\42 U.S.C. Sec. 12113(d) (``This subchapter shall not prohibit a
religious corporation, association, educational institution, or society
from giving preference in employment to individuals of a particular
religion to perform work connected with the carrying on by such
corporation, association, educational institution, or society of its
activities. . . . [A] religious organization may require that all
applicants and employees conform to the religious tenets of such
organization.'').
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Neither H.R. 2694 as introduced nor the Scott ANS
incorporate the CRA religious-organization protection or any
provision protecting religious organizations. During
negotiations over H.R. 2694, Committee Republicans requested
inclusion of such a provision, but it was not included in the
Scott ANS. As Ranking Member Virginia Foxx (R-NC) stated during
the Committee markup, without such a provision, H.R. 2694 could
force a religious organization to make employment decisions in
violation of the organization's faith.
For example, if an employee working for a religious
organization requests time off to have an abortion procedure,
H.R. 2694 could require the organization to comply with this
request as a reasonable accommodation of known limitations
related to pregnancy, childbirth, or related medical
conditions. This accommodation could be required to include
paid leave if the employee is eligible for paid medical leave
as part of the employer's workplace policies. These kinds of
accommodations, however, could be contrary to the
organization's religious beliefs, placing the organization in a
position of either violating federal law or violating its
faith.
Religious-organization protections are a common feature of
the pregnancy-accommodation laws that have been enacted by
states. One of the Democrat-invited witnesses at the October
22, 2019, Subcommittee on Civil Rights and Human Services
hearing on H.R. 2694 pointed to Kentucky's recently-enacted law
requiring reasonable accommodations for pregnant workers as a
model of a successful pregnant-worker accommodation law for
Congress to consider.\40\ The Kentucky law includes a
religious-organization protection very similar to Title VII's
protection.\41\ At least 15 other states and the District of
Columbia have pregnancy-nondiscrimination or pregnancy-
accommodation laws that include a religious-organization
protection similar to Title VII's. The states include Arkansas,
Hawaii, Iowa, Maine, Nebraska, New Jersey, New York, Ohio,
Oklahoma, South Carolina, Tennessee, Texas, Utah, Wisconsin,
and Wyoming.\42\
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\40\See Long Over Due: Exploring the Pregnant Workers' Fairness Act
(H.R. 2694): Hearing Before the Subcomm. on Civ. Rights & Hum. Serv. of
the H. Comm. on Educ. & Lab. (2019) (statement of Iris Wilbur, Vice
President of Gov't Affairs & Pub. Pol'y, Greater Louisville Inc.).
\41\See Ky. Rev. Stat. Ann. Sec. 344.090 (``[I]t is not an unlawful
practice for . . . [a] religious corporation, association, or society
to employ an individual on the basis of his religion to perform work
connected with the carrying on by such corporation, association, or
society of its religious activity.'').
\42\See Ark. Code Ann. Sec. 16-123-103; D.C. Code Sec. 2-1401.03;
Haw. Rev. Stat. Sec. 378-3; Iowa Code Sec. 216.6; Me. Stat. tit.
Sec. 5, Sec. 4573-A; Neb. Rev. Stat. Sec. 48-1103; N.J. Stat. Ann.
10:5-12; N.Y. Exec. Law Sec. 296.11; Ohio Rev. Code Ann.
Sec. 4112.02(P); Okla. Stat. tit. 25, Sec. 1307; S.C. Code Ann. Sec. 1-
13-80; Tenn. Code Ann. Sec. 4-21-405; Tex. Lab. Sec. 21.109; Utah Code
Ann. Sec. 34A-5-102(i); Wisc. Stat. Sec. 111.337; Wyo. Stat. Ann.
Sec. 27-9-102(b).
---------------------------------------------------------------------------
Committee Democrats contended during the markup of H.R.
2694 that religious organizations are already protected by the
Religious Freedom Restoration Act of 1993 (RFRA), and inclusion
of the CRA's religious-organization protection is unnecessary.
RFRA states that the federal government ``shall not
substantially burden a person's exercise of religion even if
the burden results from a rule of general applicability,''
except that the government ``may substantially burden a
person's exercise of religion only if it demonstrates that
application of the burden to the person . . . is in furtherance
of a compelling governmental interest; and . . . is the least
restrictive means of furthering that compelling governmental
interest.'' An organization ``may assert'' a violation of RFRA
``as a claim or defense in a judicial proceeding and obtain
appropriate relief'' against the government.\43\
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\43\Id. Sec. 2000bb-1.
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Unfortunately, RFRA does not render the inclusion of a
religious-organization protection in H.R. 2694 unnecessary. The
CRA's provision provides important protections that are
stronger than those provided by RFRA. The CRA provision limits
the statute's application with respect to religiously based
employment decisions. Under the CRA, the federal government and
the courts cannot interfere with these decisions if the
organization is a religious organization and its employment
decisions are based on the organization's religion. RFRA, on
the other hand, merely provides a defense to governmental
action and creates a balancing test to determine whether the
government may impose a burden on the exercise of religion.
Under RFRA, the federal government may substantially burden the
exercise of religion if it demonstrates the burden is in
furtherance of a compelling governmental interest and is the
least restrictive means of furthering that interest.
If H.R. 2694 is enacted, federal agencies enforcing H.R.
2694 and private plaintiffs will argue in the courts that the
requirements in the Act are furthering a compelling
governmental interest, i.e., clarifying the nondiscrimination
rights of pregnant workers. Lower courts have ruled that
nondiscrimination laws and policies serve a compelling
governmental interest with respect to RFRA claims.\44\ After
likely meeting this burden in a case brought under H.R. 2694,
the federal agency or private plaintiff would next argue H.R.
2694 is the least restrictive means to further this interest.
It is unclear at best whether a religious organization raising
RFRA as a defense will be able to overcome these arguments in
federal court. Indeed, Mr. J. Matthew Sharp, Senior Counsel
with the Alliance Defending Freedom, noted in his testimony at
a hearing on RFRA before the Committee on Education and Labor
on June 25, 2019, that courts rule in favor of the federal
government and against those attempting to be free of a
substantial burden on their religion in over 80 percent of RFRA
cases.\45\ To ensure religious organizations are not forced to
violate their faith in complying with H.R. 2694, the bill
should include the CRA's provision limiting the application of
the Act with respect to the religiously based employment
decisions of religious organizations.
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\44\See, e.g., EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884
F.3d 560, 592 (6th Cir. 2018) (``EEOC's compelling interest in
eradicating discrimination''), cert. granted on other grounds, R.G. &
G.R. Harris Funeral Homes, Inc. v. EEOC, 139 S. Ct. 1599 (2019); Hsu v.
Roslyn Union Free Sch. Dist. No. 3, 876 F. Supp. 445, 462 (E.D.N.Y.
1995) (compelling interest in ``eliminating and preventing''
discrimination), aff'd in part, rev'd in part on other grounds, 85 F.3d
839 (2d Cir. 1996).
\45\Do No Harm: Examining the Misapplication of the ``Religious
Freedom Restoration Act'': Hearing Before the H. Comm. on Educ. & Lab.,
116th Cong. (June 25, 2019) (written statement of J. Matthew Sharp,
Senior Couns., Alliance Defending Freedom, at 5) (citing Lucien J.
Dhooge, The Religious Freedom Restoration Act at 25: A Quantitative
Analysis of the Interpretative Case Law, 27 Wm. & Mary Bill Of Rts. J.
153, 193, 198 (2018)).
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REPUBLICAN AMENDMENT
Committee Republicans offered one amendment during the
Committee markup. This substitute amendment offered by Ranking
Member Foxx included Chairman Scott's ANS in its entirety and
simply added language incorporating the religious-organization
protection from the CRA. Ranking Member Foxx's substitute
amendment acknowledges the improvements made to H.R. 2694 in
the Scott ANS, as discussed above. Although the Scott ANS is
not the bill Republicans might write given a blank slate, its
improvements provide sufficient clarity to pregnant workers and
employers regarding their rights and responsibilities under
H.R. 2694 with the exception of the omission relating to
religious organizations. All Committee Republicans present
voted for the amendment, but all Democrats present voted
against the amendment.
CONCLUSION
Committee Republicans strongly believe workplaces should be
free of discrimination, and pregnant workers deserve
protections against workplace discrimination. Committee
Republicans have long supported workplace protections for
pregnant workers, including those in the PDA and ADA. To
address circumstances in which pregnant workers may not be
receiving reasonable accommodations from employers, Committee
Republicans support the provisions in the Scott ANS as a
compromise measure that includes sufficient clarity regarding
the bill's application to workers and employers. However, the
omission of a protection for religious organizations, which is
a longstanding part of the CRA--the nation's flagship civil
rights law--must be addressed so that religious organizations
are not faced with a conflict between their faith and the
requirements of federal law. Committee Republicans stand ready
to continue working with Committee Democrats to find a
bipartisan agreement on this outstanding issue.
Virginia Foxx,
Ranking Member.
Glenn ``GT'' Thompson.
James Comer.
Russ Fulcher.
Ben Cline.
Daniel Meuser.