[House Report 117-27]
[From the U.S. Government Publishing Office]
117th Congress } { Rept. 117-27
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
PREGNANT WORKERS FAIRNESS ACT
_______
May 4, 2021.--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. 1065]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 1065) 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................................................. 8
Committee Views.................................................. 11
Section-by-Section Analysis...................................... 33
Explanation of Amendments........................................ 35
Application of Law to the Legislative Branch..................... 36
Unfunded Mandate Statement....................................... 36
Earmark Statement................................................ 36
Roll Call Votes.................................................. 36
Statement of Performance Goals and Objectives.................... 39
Duplication of Federal Programs.................................. 39
Hearings......................................................... 39
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 39
New Budget Authority and CBO Cost Estimate....................... 39
Committee Cost Estimate.......................................... 41
Changes in Existing Law Made by the Bill, as Reported............ 41
Committee Correspondence......................................... 42
Minority Views................................................... 51
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 fairly in the workplace. Yet nearly 43
years after its passage, federal law still falls short of
guaranteeing that all pregnant workers have reasonable
workplace accommodations. H.R. 1065, 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. 1065, as amended in markup, has been endorsed by over
230 organizations: A Better Balance; American Civil Liberties
Union; National Partnership for Women & Families; National
Women's Law Center; U.S. Chamber of Commerce; 1,000 Days; 2020
Mom; 9to5; ACTION OHIO Coalition For Battered Women; Advocates
for Youth; AFL-CIO; African American Ministers In Action;
Alaska Breastfeeding Coalition; Alianza Nacional de Campesinas;
All-Options; American Academy of Pediatrics; American
Association of University Women; American Association of
University Women Indianapolis; American College of
Obstetricians and Gynecologists; American Federation of State,
County and Municipal Employees; American Federation of
Teachers; AnitaB.org; Asian Pacific American Labor Alliance,
AFL-CIO; Association of Farmworker Opportunity Programs;
Association of Maternal & Child Health Programs; Association of
State Public Health Nutritionists; Autistic Self Advocacy
Network; Baby Cafe USA; Beaufort-Jasper-Hampton Comprehensive
Health Services; Black Mamas Matter Alliance; Bazelon Center
for Mental Health Law; Bloom, Baby! Birthing Services; Bread
For the World; Breastfeeding Coalition of Delaware;
Breastfeeding Family Friendly Communities; Breastfeeding
Hawaii; BreastfeedLA; Building Pathways, Inc; California
Breastfeeding Coalition; California WIC Association; California
Women's Law Center; Casa de Esperanza: National Latin@ Network
for Healthy Families and Communities; Center for American
Progress; Center for Law and Social Policy; Center for LGBTQ
Economic Advancement & Research; Center for Parental Leave
Leadership; Center for Public Justice; Center for Reproductive
Rights; Chosen Vessels Midwifery Services; Church World
Service; Clearinghouse on Women's Issues; Coalition for
Restaurant Safety & Health; Coalition of Labor Union Women;
Coalition on Human Needs; Congregation of Our Lady of Charity
of the Good Shepherd, U.S. Provinces; Connecticut Women's
Education and Legal Fund; DC Dorothy Day Catholic Worker;
Disciples Center for Public Witness; Economic Policy Institute;
Equality Ohio; Equal Pay Today; Equal Rights Advocates; Every
Texan; Every Mother, Inc.; Family Equality; Family Values @
Work; Farmworker Justice; Feminist Majority Foundation; First
Focus Campaign for Children; Futures Without Violence; Gender
Equality Law Center; Gender Justice; Grandmothers for
Reproductive Rights; Hadassah, The Women's Zionist Organization
of America, Inc.; Health Care For America Now; Healthy Children
Project, Inc.; Healthy and Free Tennessee; Healthy Mothers,
Healthy Babies Coalition of Georgia; HealthyWomen; Hispanic
Federation; Hoosier Action; H.R. Policy Association; Human
Rights Watch; ICNA CSJ; In Our Own Voice: National Black
Women's Reproductive Justice Agenda; Indiana Chapter of the
American Academy of Pediatrics; Indiana Institute for Working
Families; Indianapolis Urban League; Institute for Women's
Policy Research; Interfaith Workers Justice; International
Franchise Association; Justice for Migrant Women; Kansas Action
for Children; Kansas Breastfeeding Coalition; KWH Law Center
for Social Justice and Change; La Leche League Alliance; La
Leche League USA; LatinoJustice PRLDEF; LCLAA; Legal Aid at
Work; Legal Momentum, The Women's Legal Defense and Education
Fund; Legal Voice; Mabel Wadsworth Center; Maine Women's Lobby;
Mana, A National Latina Organization; March of Dimes; Maternal
Mental Health Leadership Alliance; MCCOY (Marion County
Commission on Youth); Methodist Federation for Social Action;
Michigan Breastfeeding Network; Michigan League for Public
Policy; Midwives Alliance of Hawaii; Minus 9 to 5; Mississippi
Black Women's Roundtable; Mom Congress; MomsRising; Monroe
County NOW; Mother Hubbard's Cupboard; Mother's Own Milk
Matters; MS Black Women's Roundtable & MS Women's Economic
Security Initiative; NARAL Pro-Choice America; National
Advocacy Center of the Sisters of the Good Shepherd; National
Advocates for Pregnant Women; National Asian Pacific American
Women's Forum; National Association for the Advancement of
Colored People; National Association of Pediatric Nurse
Practitioners; National Association of Social Workers; National
Association of Social Workers NH Chapter; National Birth Equity
Collaborative; National Center for Law and Economic Justice;
National Center for Lesbian Rights; National Coalition for the
Homeless; National Coalition of 100 Black Women, Inc. Central
Ohio Chapter; National Coalition Against Domestic Violence;
National Consumers League; National Council for Occupational
Safety and Health; National Council of Jewish Women; National
Council of Jewish Women Cleveland; National Council of Jewish
Women, Atlanta Section; National Domestic Workers Alliance;
National Education Association; National Employment Law
Project; National Employment Lawyers Association; National
Health Law Program; National Network to End Domestic Violence;
National Organization for Women; National Retail Federation;
National Urban League; National WIC Association; National
Women's Health Network; NETWORK Lobby for Catholic Social
Justice; New Jersey Breastfeeding Coalition; New Jersey Citizen
Action; New Jersey Time to Care Coalition; New Mexico
Breastfeeding Task Force; New Working Majority; North Carolina
Justice Center; Northwest Arkansas Breastfeeding Coalition;
Nurse-Family Partnership; Nutrition First; Ohio Alliance to End
Sexual Violence; Ohio Coalition for Labor Union Women; Ohio
Domestic Violence Network; Ohio Federation of Teachers; Ohio
Religious Coalition for Reproductive Choice; Ohio Women's
Alliance; Partnership for America's Children; Peirce Consulting
LLC; Philadelphia Coalition of Labor Union Women Philly CLUW;
Philadelphia NOW Education Fund; Philaposh; Physicians for
Reproductive Health; Planned Parenthood Federation of America;
PowHer New York; Pray First Mission Ministries; Pretty Mama
Breastfeeding, LLC ; Prevent Child Abuse NC; Public Advocacy
for Kids; Restaurant Opportunities Center United; RESULTS;
RESULTS DC/MD; Retail Industry Leaders Association; Shriver
Center on Poverty Law; SisterReach; Society for Human Resource
Management; Solutions for Breastfeeding; Speaking of Birth;
Southwest Women's Law Center; The International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America; The Leadership Conference on Civil and Human Rights;
The Little Timmy Project; The National Domestic Violence
Hotline; The Ohio Women's Public Policy Network; The Women and
Girls Foundation of Southwest Pennsylvania; The Women's Law
Center of Maryland; The Zonta Club of Greater Queens; TIME'S UP
Now; U.S. Breastfeeding Committee; Ujima Inc: The National
Center on Violence Against Women in the Black Community;
UltraViolet; Union for Reform Judaism; United Church of Christ
Justice and Witness Ministries; United Electrical, Radio and
Machine Workers of America; United Food and Commercial Workers
International Union; United Spinal Association; United State of
Women; United Steelworkers; United Today, Stronger Tomorrow;
Universal Health Care Action Network of Ohio; VA NOW, Inc.;
Virginia Breastfeeding Advisory Committee; Virginia
Breastfeeding Coalition; Voices for Progress; Wabanaki Women's
Coalition; We All Rise; Western Kansas Birthkeeping; William E.
Morris Institute for Justice (Arizona); Women and Girls
Foundation of Southwest Pennsylvania; Women Employed; Women of
Reform Judaism; Women's Fund of Greater Chattanooga; Women's
Fund of Rhode Island; Women's Fund of Rhode Island; Women's Law
Project; Women's March; Women's Media Center; Women's Rights
and Empowerment Network; Women4Change; Workplace Fairness;
Workplace Justice Project at Loyola Law Clinic; Worksafe; WV
Breastfeeding Alliance; WV Perinatal Partnership, Inc.; YWCA
Dayton; YWCA Greater Cincinnati; YWCA Mahoning Valley; YWCA
McLean County; YWCA Northwestern Illinois; YWCA USA; YWCA of
the University of Illinois; 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; to require employees to accept an
accommodation they did not choose; and to require employees to
take leave if another accommodation could be provided that
would enable the employee to continue working. 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 provisions protecting workers
from retaliation for requesting or using reasonable
accommodations, ensuring the same remedies will be available in
an action against a State as in an action against any other
entity, and clarifying that construal of the ``reasonable
accommodation'' definition from the Americans with Disabilities
Act would include the interactive process between employer and
employee.
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 had 241 cosponsors: 233 Democrats and 18 Republicans.
The bill was referred to the House Committees on Education and
Labor, Administration, Oversight and Reform, and Judiciary.
There was no Senate companion bill in the 116th Congress.
On October 22, 2019, the House 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)'' (2019 Subcommittee Hearing).
The witnesses were: The Honorable Jerrold Nadler; 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 met for the markup of H.R. 2694, the Pregnant Workers
Fairness Act. The bill was reported favorably, as amended, to
the House of Representatives by a vote of 29 Yeas and 17 Nays.
H.R. 2694 passed the House on September 17, 2020, with
bipartisan support by a vote of 329 Yeas and 73 Nays.
117th Congress
On February 15, 2021, Representative Nadler introduced H.R.
1065, the Pregnant Workers Fairness Act, with four original co-
sponsors (including 2 Republicans). The bill is identical to
the one that passed the House in the 116th Congress. The bill
was referred to the House Committees on Education and Labor,
Administration, Oversight and Reform, and Judiciary.
On March 18, 2021, the House Committee on Education and
Labor's Subcommittee on Workforce Protections and Subcommittee
on Civil Rights and Human Services held a joint hearing
entitled ``Fighting for Fairness: Examining Legislation to
Confront Workplace Discrimination'' (2021 Joint Subcommittee
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. 1065 would
fill a gap in the existing legal framework by guaranteeing
pregnant workers the right to reasonable workplace
accommodations. Witnesses included Fatima Goss Graves, CEO and
President of the National Women's Law Center, Washington, DC;
Camille A. Olson, Partner at Seyfarth Shaw, LLP, Chicago, IL;
Dina Bakst, Co-Founder & Co-President, A Better Balance: The
Work & Family Legal Center, New York City, NY; and Laurie
McCann, Senior Attorney, AARP, Washington, DC.
On April 29, 2021 Senator Robert P. Casey, Jr. (D-PA)
introduced S. 1486, the Pregnant Workers Fairness Act, as a
companion bill to H.R. 1065. The bill has six cosponsors: three
Democrats and three Republicans. The bill was referred to the
Senate Committee on Health, Education, Labor, and Pensions. As
of the date of the filing of this report, no further action has
been taken on the bill.
On March 24, 2021, the House Committee on Education and
Labor met for a full committee markup of H.R. 1065, the
Pregnant Workers Fairness Act. The Committee adopted an
amendment in the nature of a substitute (ANS) offered by
Chairman Robert C. ``Bobby'' Scott (D-VA-3). The ANS
incorporates the provisions of H.R. 1065 with four grammatical
corrections.
Representative Russ Fulcher (R-ID-1) offered a substitute
amendment to the ANS. It was nearly identical to the ANS
offered by Chairman Scott, but it included a provision to
exempt religious organizations from coverage under the bill and
would have allowed religious organizations to deny workers
reasonable accommodations under the law. The amendment was
defeated by a vote of 20 Yeas and 27 Nays.
H.R. 1065 was reported favorably, as amended, to the House
of Representatives by a vote of 30 Yeas and 17 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. 1065, 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.\3\ Women are
increasingly either the primary or co-breadwinners of
households.\4\ 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.\5\ 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.
---------------------------------------------------------------------------
\3\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.
\4\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.
\5\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)\6\ and Title I of the
Americans with Disabilities Act of 1990 (ADA),\7\ 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.\8\ 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.
---------------------------------------------------------------------------
\6\42 U.S.C. Sec. 2000e(k).
\7\42 U.S.C. Sec. Sec. 12111-12117.
\8\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\9\ (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.\10\ However, in two U.S. Supreme Court decisions
in the 1970s, the Court ruled that pregnancy discrimination was
not considered sex discrimination.
---------------------------------------------------------------------------
\9\42 U.S.C. Sec. 2000e.
\10\29 CFR Sec. 1604.10(b) (1973).
---------------------------------------------------------------------------
In Geduldig v. Aiello,\11\ 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,
---------------------------------------------------------------------------
\11\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.\12\
---------------------------------------------------------------------------
\12\417 U.S. 484, 496-97 n. 20 (1974).
Two years later, the Supreme Court decided General Electric
Company v. Gilbert.\13\ 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.\14\
---------------------------------------------------------------------------
\13\General Electric Company v. Gilbert, 429 U.S. 125, 135-36
(1976).
\14\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.\15\
---------------------------------------------------------------------------
\15\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.''\16\
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.\17\ In doing so, the PDA made clear that
discrimination on the basis of pregnancy was discrimination on
the basis of sex.\18\ 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.''\19\ 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:
---------------------------------------------------------------------------
\16\Id. at 1.
\17\42 U.S.C. Sec. 2000e(k).
\18\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).
\19\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.\20\
---------------------------------------------------------------------------
\20\H. Rep. No. 95-948, at 4 (1978).
At the 2019 Subcommittee 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.\21\
---------------------------------------------------------------------------
\21\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 2019 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.\22\ ``In other words, a
pregnant worker was only entitled to be treated as well (or as
poorly) as those injured off the job.''\23\ 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.\24\
---------------------------------------------------------------------------
\22\Lara Grow, Pregnancy Discrimination in the Wake of Young v.
UPS, 19 U.PA. J.L. & Soc. Change 133, 144, (2016).
\23\Id. at 145.
\24\Id. at 144.
---------------------------------------------------------------------------
The PDA does not affirmatively require that an employer
reasonably accommodate a pregnant worker. At the 2019
Subcommittee Hearing, Ms. Bakst testified 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):\25\
---------------------------------------------------------------------------
\25\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.\26\
---------------------------------------------------------------------------
\26\2019 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,\27\ which
set forth a new, controlling standard for a pregnant worker to
establish a disparate treatment claim of discrimination in
securing a reasonable accommodation under the PDA.
---------------------------------------------------------------------------
\27\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.\28\ 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.
---------------------------------------------------------------------------
\28\Lara Grow, Pregnancy Discrimination in the Wake of Young v.
UPS, 19 U. Pa. J.L. & Soc. Change 133, 147 (2016).
---------------------------------------------------------------------------
Young sued UPS alleging disparate treatment under the PDA
and pursued her case to the U.S. Supreme Court.\29\ 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.\30\
---------------------------------------------------------------------------
\29\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.).
\30\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.'''\31\
---------------------------------------------------------------------------
\31\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.''\32\ 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.''\33\ Essentially, the employer must
provide a non-economic justification for its actions.
---------------------------------------------------------------------------
\32\Id.
\33\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.''\34\ 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.''\35\ 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.
---------------------------------------------------------------------------
\34\Id.
\35\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.\36\ Forcing
pregnant workers to identify a comparator creates an oftentimes
insurmountable hurdle.
---------------------------------------------------------------------------
\36\Id.
---------------------------------------------------------------------------
At odds with Justice Breyer's majority opinion in Young
stating that the comparator standard should not be onerous on
workers, testimony received at the 2019 Subcommittee 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.''\37\
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.''\38\
Furthermore, ``[s]ince the Committee's 2019 hearing, hundreds
more pregnant workers have called A Better Balance's free and
confidential legal helpline because they are unable to receive
accommodations to stay healthy and working due to glaring gaps
in federal legal protections.''\39\
---------------------------------------------------------------------------
\37\2019 Bakst Testimony at 14.
\38\Id. at 3.
\39\Fighting for Fairness: Examining Legislation to Confront
Workplace Discrimination Before H. Subcomm. on Civil Rights and Human
Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. and
Labor, 117th Cong. (2021) (written testimony of Dina Bakst, Co-Founder
& Co-President, A Better Balance, at 3) [Hereinafter 2021 Bakst
Testimony].
---------------------------------------------------------------------------
Some courts have placed categorical bans on certain types
of comparators.\40\ As Ms. Bakst testified at the 2021 Joint
Subcommittee Hearing:
---------------------------------------------------------------------------
\40\2019 Bakst Testimony at 3.
[I]n a February 2021 case, low-wage pregnant Walmart
workers needed modifications to their jobs to reduce
the weight they were required to lift and the amount of
time they were forced to stand. Walmart refused, under
the guise of a national policy of only accommodating
workers injured on the job. The Western District of
Wisconsin endorsed Walmart's failure to accommodate due
to insufficient comparator evidence. Invoking Young,
the court reasoned that, even though `100 percent of
employees injured on-the-job' were accommodated--while
no pregnant employees were even eligible for
accommodation under Walmart's policy--the EEOC had
failed to present sufficient comparator evidence.\41\
---------------------------------------------------------------------------
\41\2021 Bakst Testimony at 6.
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.''\42\ Ms. Bakst testified at the 2019 Subcommittee
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.''\43\
---------------------------------------------------------------------------
\42\135 S. Ct. 1338, 1354 (2015).
\43\2019 Bakst Testimony at 16.
---------------------------------------------------------------------------
Additionally, using the Young framework can take years to
get a remedy. As Ms. Bakst testified at the 2019 Subcommittee
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.\44\
---------------------------------------------------------------------------
\44\2019 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.\45\
---------------------------------------------------------------------------
\45\See Durham v. Rural/Metro Corp., 955 F.3d 1279 (11th Cir. 2020)
(finding in favor of the appellant five years after she filed her
initial claim with the EEOC).
---------------------------------------------------------------------------
To remedy the shortcomings of the PDA, Congress must step
in and act. As Ms. Bakst testified at the 2021 Joint
Subcommittee Hearing:
The PDA's failure demands further action by Congress.
By requiring the reasonable accommodation of pregnant
workers only absent undue hardship, the [Pregnant
Workers Fairness Act] is carefully crafted to deter and
remedy [] sex discrimination in the hiring, retention,
and promotion of women who could potentially become
pregnant and soon-to-become mothers.\46\
---------------------------------------------------------------------------
\46\2021 Bakst Testimony 10.
---------------------------------------------------------------------------
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.''\47\ 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.''\48\ 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.\49\
---------------------------------------------------------------------------
\47\42 U.S.C. Sec. 12102.
\48\42 U.S.C. Sec. 12112(a).
\49\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),\50\ 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.\51\ 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.''\52\ In addition to the EEOC 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.\53\ 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.
---------------------------------------------------------------------------
\50\42 U.S.C. Sec. 12102.
\51\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.
\52\Villarreal v. J.E. Merit Constructors, 895 F. Supp. 149, 152
(S.D. Tex. 1995).
\53\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.''\54\
---------------------------------------------------------------------------
\54\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.''\55\
---------------------------------------------------------------------------
\55\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.''\56\
Additionally, ``[u]nder the ADAAA and its implementing
regulations, an impairment is not categorically excluded from
being a disability simply because it is temporary.''\57\
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).
---------------------------------------------------------------------------
\56\42 U.S.C. Sec. 12102.
\57\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.\58\ 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 case law 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.''\59\ 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.''\60\
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\58\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.
\59\Turner v. Hershey Chocolate, 440 F.3d 604, 611 (3d Cir. 2006).
\60\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.''\61\ 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.''\62\ In response to
questions for the record for the 2019 Subcommittee Hearing
submitted by Representative Suzanne Bonamici (D-OR-1), Chair of
the Committee's Subcommittee on Civil Rights and Human
Services, Ms. Bakst stated:
---------------------------------------------------------------------------
\61\42 U.S.C. Sec. 12102(1)(a).
\62\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.\63\
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\63\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.''\64\ 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.''\65\
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\64\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.).
\65\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.,\66\ 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.''\67\
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\66\Adireje v. ResCare, Inc., No. 1:18-CV-01429-TWP-DLP, 2019 U.S.
Dist. LEXIS 170125 (S.D. Ind. Sept. 30, 2019).
\67\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.''\68\ Courts continue to read a durational
requirement into the ADAAA.\69\ 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.''\70\ 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.''\71\ As Ms. Bakst noted in her testimony at the
2021 Joint Subcommittee Hearing:
\68\See 29 C.F.R. Sec. 1630 (Appendix to Part 1630, Interpretive
Guidance on Title I of the Americans with Disabilities Amendments Act).
\69\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).
\70\Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 211
(D. Conn. 2012).
\71\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.).
As recently as late 2020, courts have continued to
affirm that pregnancy, absent complications, is not an
ADA-qualifying disability meriting accommodation.
Courts also continue to limit the types of pregnancy-
related complications that qualify as disabilities. For
instance, in 2020, one court held that a plaintiff with
pregnancy complications, including preeclampsia, did
not have an ADA-qualifying disability because she had
`presented no admissible evidence of her pregnancy
complications or explained how they disabled her'--
despite the fact that preeclampsia is one of the three
leading causes of maternal mortality.\72\
---------------------------------------------------------------------------
\72\2021 Bakst Testimony at 11.
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.\73\
---------------------------------------------------------------------------
\73\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).
---------------------------------------------------------------------------
The Pregnant Workers Fairness Act Promotes Pregnant Workers' Health and
Economic Wellbeing
Women comprise nearly half the U.S. workforce.\74\ Women
are the primary, sole, or co-breadwinners in nearly 64 percent
of families, earning at least half of their total household
income.\75\ 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.\76\ 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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\74\Catalyst, Quick Take: Women in the Workforce--United States
(June 5, 2019), https://www.catalyst.org/research/women-in-the-
workforce-united-states/.
\75\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.
\76\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.\77\ 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.\78\ Some studies have
shown increased risk of miscarriage, preterm birth, low birth
weight, urinary tract infections, and fainting as a result of
these exposures.\79\
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\77\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.
\78\Id. at, e120.
\79\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.\80\ 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).\81\
---------------------------------------------------------------------------
\80\Id.
\81\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.\82\ 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 2019 Subcommittee Hearing,
Emily Martin of the National Women's Law Center stated:
---------------------------------------------------------------------------
\82\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.\83\
\83\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 2019 Subcommittee 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 [Murrell]
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. [Murrell] continued doing her assigned work of
lifting boxes weighing almost 50 pounds. As a result,
she suffered a miscarriage.\84\
---------------------------------------------------------------------------
\84\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 2019 Subcommittee 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.\85\
---------------------------------------------------------------------------
\85\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 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.''\86\ 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.''\87\
A recent study in Washington state found that the COVID-19
infection rate for pregnant people was 70 percent higher than
similarly aged adults.\88\ One study of pregnant women in
Philadelphia found that Black and Hispanic women are ``five
times more likely to be exposed to coronavirus.''\89\
---------------------------------------------------------------------------
\86\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).
\87\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).
\88\Erica M. Lokken et al., Higher SARS-CoV-2 Infection Rate in
Pregnant Patients (February 16, 2021), https://www.ajog.org/article/
S0002-9378(21)00098-3/fulltext
\89\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.
---------------------------------------------------------------------------
As Ms. Bakst testified at the 2021 Joint Subcommittee
Hearing:
Preserving pregnant workers' economic security is
especially important at a time when the COVID-19
pandemic has disproportionately harmed women,
especially women of color in low-wage occupations, with
many experts suggesting that it could take years to
undo the damage to women's economic equality, and that
many women will experience long-term damage to their
career trajectories, earnings, and retirement security.
While the PWFA was needed long before the pandemic, it
has taken on a new urgency as a critical measure
necessary to keep women healthy and attached to the
workforce.\90\
---------------------------------------------------------------------------
\90\2021 Bakst Testimony 13.
Guaranteed reasonable accommodations could be pivotal in
pregnant workers maintaining healthy pregnancies both during
COVID-19 and beyond.
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.\91\ 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.\92\
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.\93\ According to an
analysis from the non-profit organization A Better Balance:
---------------------------------------------------------------------------
\91\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.
\92\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.
\93\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.\94\
---------------------------------------------------------------------------
\94\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.\95\ In her testimony
at the 2021 Joint Subcommittee Hearing, Ms. Bakst recounted the
experiences of two women who suffered severe economic
consequences because their employers would not provide them
with accommodations:
---------------------------------------------------------------------------
\95\2021 Bakst Testimony at 13.
Armanda Legros--a single mother forced out of work
because her employer refused to provide a lifting
accommodation--lost the ability to feed her children.
``Once my baby arrived,'' she told Congress in 2014,
``just putting food on the table for him and my four-
year-old was a challenge. I was forced to use water in
his cereal at times because I could not afford milk.''
Natasha Jackson--the primary breadwinner for her
family--was also forced out of her job because her
employer refused to let her work with a lifting
restriction in place. Her dream of home ownership
vanished and, instead, her family struggled to find
stable housing.\96\
---------------------------------------------------------------------------
\96\2021 Bakst Testimony at 12-13.
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''\97\ As Ms. Wilbur testified at the
2019 Subcommittee Hearing:
---------------------------------------------------------------------------
\97\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.\98\
\98\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).
---------------------------------------------------------------------------
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.\99\ 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.
---------------------------------------------------------------------------
\99\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.\100\ 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,\101\ Title V of the
United States Code,\102\ Section 717 of the Civil Rights Act of
1964,\103\ and the Government Employee Rights Act of 1991.\104\
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
certain damages.\105\
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\100\42 U.S.C. Sec. 2000e.
\101\2 U.S.C. Sec. 1301.
\102\3 U.S.C. Sec. 411.
\103\42 U.S.C. Sec. 2000e-16.
\104\42 U.S.C. Sec. 2000e-16b.
\105\Back pay, front pay, and injunctive relief are still
available.
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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 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\
---------------------------------------------------------------------------
\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#: cents: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. 1065, 117th Cong. Sec. 5(6) (2021) (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, childbirth, or related medical conditions does not
render a worker ``unqualified.'' There is precedent under the
ADA for the temporary excusal of essential functions and there
may be a need for a pregnant worker to temporarily perform
other tasks or otherwise be excused from performing essential
functions before fully returning to her position once she is
able. For example, 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
similar to the PWFA, current understanding of ``essential
functions'' under the ADA is instructive, although not
determinative, to the PWFA. According to the EEOC, factors to
consider in determining if a function is ``essential'' under
the ADA 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#: cents:text=Essential%20functions
20are%20the%20basic,tasks20are%20essential%20to%20performance.
---------------------------------------------------------------------------
In the ADA context, 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.
---------------------------------------------------------------------------
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, but are not limited
to, scheduling due to morning sickness or pre-natal
appointments, job reassignment, additional restroom breaks,
access to water to prevent dehydration, assistance with manual
labor, and modified seating. 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\
---------------------------------------------------------------------------
\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. 1065, 117th Cong. Sec. 2(4) (2021) (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).
---------------------------------------------------------------------------
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 2019 Subcommittee 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 (2019).
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).
---------------------------------------------------------------------------
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 either
the existence of a reasonable accommodation that would allow
her to perform the essential functions of the position\125\ or
a reasonable accommodation in which the employee's essential
functions could be temporarily excused.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
The Pregnant Workers Fairness Act Provides Clarity for Employers
As of April 2021, 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 2019 Subcommittee 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 2019 Subcommittee 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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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, it is the position of the
Committee that nondiscrimination provisions are a compelling
government interest and the least restrictive means to achieve
the policy of equal employment opportunity. Unfortunately, in
recent years, RFRA claims undermined nondiscrimination
requirements in a way that harms third parties.\131\ RFRA
cannot and should not be used to create exemptions that would
harm the rights of third parties, including pregnant
workers.\132\
---------------------------------------------------------------------------
\129\Religious organizations 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 Supreme Court has recognized a
constitutional ``ministerial exception'' to civil rights laws for some
employees who preach and teach the faith and carry out important
religious functions. It is a wholesale exemption from civil rights laws
and could apply to PWFA as it applies to other civil rights laws.
\130\42 U.S.C. Sec. 2000bb.
\131\Meg Kinnard, In lawsuit, a Catholic mother from Simpsonville
alleges discrimination by Miracle Hill, Greenville News (South
Carolina) (Feb. 15, 2019), https://www.greenvilleonline.com/story/news/
2019/02/15/greenville-miracle-hills-ministries-foster-agency-lawsuit/
2881913002/.
\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.
---------------------------------------------------------------------------
The substitute amendment to the ANS offered by
Representative Fulcher would open the door to employers seeking
religious exemptions from providing a reasonable accommodation
to their pregnant workers. Ms. Bakst testified at 2021 Joint
Subcommittee Hearing, ``[a]ccording to an A Better Balance
legal analysis, none of the nearly 1,000 court cases invoking
the Title VII religious exemption involve an employer objecting
to providing pregnancy accommodations; therefore from a legal
standpoint, inserting an exemption for religious employers is
simply extraneous and unnecessary.''\133\
---------------------------------------------------------------------------
\133\2021 Bakst Testimony at 16.
---------------------------------------------------------------------------
Further, Ms. Bakst testified that not only is the exemption
``already unnecessary'' but also that ``ample escape hatches
already exist for religious employers.''\134\ She added that
``I would hope that most employers, especially those that are
religious, would be amenable to providing such simple measures
to their employees to safeguard their well-being.''\135\
---------------------------------------------------------------------------
\134\2021 Bakst Testimony at 17.
\135\2021 Bakst Testimony at 17.
---------------------------------------------------------------------------
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.\136\ 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%).''\137\ 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.
---------------------------------------------------------------------------
\136\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.
\137\Id.
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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,\138\ the Congressional Accountability Act of 1995,\139\
Chapter 5 of Title 3 of the United States Code,\140\ Section
717 of the Civil Rights Act of 1964,\141\ and the Government
Employee Rights Act of 1991.\142\ Remedies include equitable
relief, including back pay, and reasonable attorney's fees.
Claimants may also be awarded compensatory and punitive
damages.\143\
---------------------------------------------------------------------------
\138\42 U.S.C. Sec. 2000e.
\139\2 U.S.C. Sec. 1301.
\140\3 U.S.C. Sec. 411.
\141\42 U.S.C. Sec. 2000e-16.
\142\42 U.S.C. Sec. 2000e-16b.
\143\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 certain 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.\144\
---------------------------------------------------------------------------
\144\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. 1065, 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.
Section 4 of the Unfunded Mandates Reform Act of 1995 excludes
from the application of that Act any legislative provisions
that would establish or enforce statutory rights prohibiting
discrimination. CBO has determined that the bill falls within
that exclusion because it would extend protections against
discrimination in the workplace based on sex to employees
requesting reasonable accommodation for pregnancy, childbirth,
or related medical conditions.
EARMARK STATEMENT
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1065 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. 1065:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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. 1065 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. 1065 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 clause 3(c)(6) of rule XIII of the Rules of the
House of Representatives, the Committee on Education and
Labor's Subcommittee on Workforce Protections and Subcommittee
on Civil Rights and Human Services held a joint hearing on
March 18, 2021, entitled ``Fighting for Fairness: Examining
Legislation to Confront Workplace Discrimination,'' which was
used to consider H.R. 1065. The hearing examined the health and
economic effects of pregnant workers' lack of access to
reasonable accommodations. The hearing also examined how H.R.
1065 would fill a gap in the existing legal framework by
guaranteeing pregnant workers the right to reasonable workplace
accommodations. Witnesses included Fatima Goss Graves, CEO and
President of the National Women's Law Center, Washington, DC;
Camille A. Olson, Partner at Seyfarth Shaw, LLP, Chicago, IL;
Dina Bakst, Co-Founder & Co-President, A Better Balance: The
Work & Family Legal Center, New York City, NY; and Laurie
McCann, Senior Attorney, AARP, Washington, DC.
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
received the following cost estimate for H.R. 1065 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 5, 2021.
Hon. Robert C. ``Bobby'' Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1065, the Pregnant
Workers Fairness Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lindsay
Wylie.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 1065 would require all public-sector employers and any
private-sector employers with more than 15 workers to make
reasonable accommodations for the known limitations related to
pregnancy, childbirth, or related medical conditions of
employees and job applicants.\1\ The bill would not require
employers to make any accommodation that would impose an undue
hardship on business operations. Under the bill, the Equal
Employment Opportunity Commission (EEOC) would be required to
issue regulations to implement the bill within two years of
enactment.
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\1\Current law provides protections to pregnant workers who are
denied reasonable accommodations by their employers. However, the
Supreme Court has ruled that a pregnant worker may bring a claim
against an employer only if the petitioner can demonstrate that the
employer has provided accommodations to workers with similar
limitations who are not pregnant (Young v. United Parcel Service Inc.,
575 U.S. 12, 1226 (2015), https://go.usa.gov/xG4jx, PDF, 230 KB), H.R.
1065 would allow pregnant workers to bring such claims without meeting
that requirement.
---------------------------------------------------------------------------
Using information from the EEOC, CBO expects that for the
first three years after the regulations are issued, the volume
of claims related to pregnancy discrimination that EEOC
receives would increase by about 20 percent (roughly an
additional 500 claims) each year. (The EEOC expects that after
three years, the number of pregnancy discrimination claims
would return to prior levels as employers adjust to the new
regulations.) To meet that initial workload, CBO estimates that
the commission would need eight additional employees, at a cost
of about $5 million over the 2021-2026 period. Such spending
would be subject to the availability of appropriated funds. For
fiscal year 2021, the Congress appropriated $404 million for
all of the EEOC's operations.
Enacting the bill could affect direct spending by some
agencies that are allowed to use fees, receipts from the sale
of goods, and other collections to cover operating costs. CBO
estimates that any net changes in direct spending by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
CBO has not reviewed H.R. 1065 for intergovernmental or
private-sector mandates. Section 4 of the Unfunded Mandates
Reform Act excludes from the application of that act any
legislative provisions that would establish or enforce
statutory rights prohibiting discrimination. CBO has determined
that the bill falls within that exclusion because it would
extend protections against discrimination in the workplace
based on sex to employees requesting reasonable accommodation
for pregnancy, childbirth, or related medical conditions.
The CBO staff contacts for this estimate are Lindsay Wylie
(for federal costs) and Lilia Ledezma (for mandates). The
estimate was reviewed by Leo Lex, Deputy Director of Budget
Analysis.
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. 1065.
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.
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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
MINORITY VIEWS
INTRODUCTION
Committee Republicans unequivocally believe discrimination
of any kind is abhorrent and should not be tolerated, and that
unlawful discrimination should not be permitted. This is why
federal laws already protect workers from discrimination in the
workplace, including discrimination because of pregnancy.
PURPOSE OF H.R. 1065
H.R. 1065, the Pregnant Workers Fairness Act, is a stand-
alone bill that would create a new federal statute. The bill
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 the accommodation
would impose an undue hardship on the operation of the
business.\1\ H.R. 1065 is intended to address perceived
shortcomings in the Supreme Court's 2015 decision in Young v.
United Parcel Service, Inc. (Young).\2\ In that case, the
Supreme Court 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 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. 1065, 117th Cong. Sec. 2(1) (2021).
\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).
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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. The Court indicated that under the PDA, a
plaintiff can reach a jury trial 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 occurred, ``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.
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H.R. 1065 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 as a stand-alone bill that does
not amend the PDA or the ADA.
NEGOTIATED IMPROVEMENTS TO THE PREGNANT WORKERS
FAIRNESS ACT
Prior to a previous Committee markup of the Pregnant
Workers Fairness Act in the 116th Congress,\7\ significant
progress was made negotiating bipartisan compromises, and
Committee Republicans commend Chairman Robert C. ``Bobby''
Scott (D-VA) for his willingness to negotiate on several
issues. In the 117th Congress, H.R. 1065 includes the language
which addresses the important concerns raised by Republicans,
resulting in a much-improved product compared to the bill as
introduced in the 116th Congress. However, as was the case with
the bill considered in the 116th Congress, one significant
issue remains to be addressed in H.R. 1065 relating to
protections for religious organizations which will be discussed
in more detail in another section of the Minority Views.
---------------------------------------------------------------------------
\7\H.R. 2694, 116th Cong. (2019).
---------------------------------------------------------------------------
Essential Functions Requirement
At a hearing on the Pregnant Workers Fairness Act in the
116th Congress 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.''\8\
Accordingly, H.R. 1065 incorporates the ADA definitions of
``reasonable accommodation'' and ``undue hardship.''\9\ 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.''\10\
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.''\11\
---------------------------------------------------------------------------
\8\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) (statement of Rep.
Jerrold Nadler at 4).
\9\H.R. 1065, 117th Cong. Sec. 5(7) (2021).
\10\42 U.S.C. Sec. 12112(a), (b)(5).
\11\Id. Sec. 12111(8).
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The Pregnant Workers Fairness Act as introduced in the
116th Congress 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 in 2019. 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?\12\
---------------------------------------------------------------------------
\12\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) (statement of Ellen
McLaughlin, Partner, Seyfarth Shaw LLP, at 7-8) (emphasis in original)
[hereinafter McLaughlin Statement].
To address these concerns, H.R. 1065 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.''\13\ In addition, to address concerns from
supporters of H.R. 1065 that workers with known limitations
related to pregnancy who are temporarily unable to perform an
essential function be able to receive an accommodation, the
bill 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.''\14\
---------------------------------------------------------------------------
\13\H.R. 1065, 117th Cong. Sec. 5(6) (2021).
\14\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. 1065 through
its adoption of the ADA definition of reasonable
accommodation--as well as leave.\15\ The ``essential
functions'' language in H.R. 1065 thus incorporates the ADA
concept of ``essential functions,'' although temporary
limitations related to pregnancy must also be considered when
determining the appropriate reasonable accommodation. Moreover,
under H.R. 1065, 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. H.R.
1065 therefore does not require an employer to allow an
employee to report for work but not do the job.
---------------------------------------------------------------------------
\15\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.''\16\ 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 the enterprise as a
whole can function and thrive. Under H.R. 1065, courts will
also need to consider the employer's judgment regarding the
essential functions of the job.
---------------------------------------------------------------------------
\16\42 U.S.C. Sec. 1A 12111(8).
---------------------------------------------------------------------------
Like the ADA, H.R. 1065 does not require ``red circle'' pay
rates 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. 1065, 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.\17\
---------------------------------------------------------------------------
\17\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 workers and employers understand what
impairments are covered by the statute.\18\ In contrast, the
Pregnant Workers Fairness Act, as introduced in the 116th
Congress, 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 is needed:
---------------------------------------------------------------------------
\18\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.\19\
---------------------------------------------------------------------------
\19\McLaughlin Statement, supra note 12, at 7.
To address these concerns, H.R. 1065 includes a definition
of ``known limitation,'' although this definition is far from
being as detailed or specific as the ADA definition of
``disability.'' The bill 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).''\20\ 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.
---------------------------------------------------------------------------
\20\H.R. 1065, 117th Cong. Sec. 5(5) (2021).
---------------------------------------------------------------------------
H.R. 1065's definition confirms ``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. 1065 were concerned 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 H.R. 1065 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. 1065'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.\21\ H.R. 1065
incorporates the definition of ``reasonable accommodation''
from the ADA, including a reference to the interactive process
that is typically used.\22\ However, Sections 2(2) and 2(4) of
the Pregnant Workers Fairness Act as introduced in the 116th
Congress seemed to give the employee unilateral veto power over
offered accommodations, in contrast to the ADA's balanced,
interactive process for determining reasonable
accommodations.\23\ Ms. McLaughlin raised concerns about
Section 2(2) in her testimony:
---------------------------------------------------------------------------
\21\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.'').
\22\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.'').
\23\See id. Sec. 2(2) (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. 2(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?\24\
---------------------------------------------------------------------------
\24\McLaughlin Statement, supra note 12, at 8 (emphasis in
original).
She had similar concerns with Section 2(4), which seemed 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.\25\
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\25\Id. at 8-9.
To address these concerns, H.R. 1065 amends Section 2(2) to
incorporate explicitly the ADA's balanced, interactive process.
Under Section 2(2) in H.R. 1065, 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 reasonable accommodations
agreed upon 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 H.R. 1065.
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.''\26\
Because H.R. 1065 incorporates the ADA definition of
``reasonable accommodation,'' including the interactive process
between the employee and employer typically used to determine a
reasonable accommodation, the bill presumably allows employers
to require such documentation when the need for an
accommodation is not obvious.
---------------------------------------------------------------------------
\26\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.''\27\ The Supreme Court has ruled this includes
a direct threat that may be posed to the individual's own
health or safety.\28\ The Occupational Safety and Health
Administration has noted that ``exposure to reproductive
hazards in the workplace is an increasing health concern.''\29\
Under H.R. 1065, 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.
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\27\42 U.S.C. Sec. 12113(b).
\28\See Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 83 (2002).
\29\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.\30\ The Pregnant Workers
Fairness Act as introduced in the 116th Congress 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, the legislation uses the
framework of the ADA. To address this omission and conform the
bill to Title VII's and the ADA's coverage, H.R. 1065 only
applies to employers with 15 or more employees by incorporating
this limitation from Section 701(b) of the CRA.\31\
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\30\42 U.S.C. Sec. 2000e(b); id. Sec. 12111(5)(A).
\31\H.R. 1065, 117th Cong. Sec. 5(2)(B)(i) (2021).
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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.''. . .
\32\ 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.
---------------------------------------------------------------------------
\32\42 U.S.C. Sec. 1981a(a)(3).
---------------------------------------------------------------------------
Such a provision was not included in the Pregnant Workers
Fairness Act as introduced in the 116th Congress, but H.R. 1065
includes this 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.\33\ H.R. 1065's remedies conform 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.
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\33\H.R. 1065, 117th Cong. Sec. 3(g) (2021).
---------------------------------------------------------------------------
Rulemaking Authority
H.R. 1065 requires the Equal Employment Opportunity
Commission (EEOC) to issue regulations within two years of the
bill's enactment. As introduced in the 116th Congress, the
rulemaking section in the Pregnant Workers Fairness Act stated:
``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.''\34\
---------------------------------------------------------------------------
\34\H.R. 2694, 116th Cong. Sec. 4 (2019) (emphasis added).
---------------------------------------------------------------------------
The italicized phrase was too prescriptive. It seemed 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, H.R. 1065 does not include 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.''
Excluding this phrase clarifies that the examples in the
regulation are merely examples of potential reasonable
accommodations and not mandatory.\35\
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\35\See H.R. 1065, 117th Cong. Sec. 4 (2021).
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UNRESOLVED CONCERN WITH H.R. 1065
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.''\36\ 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,\37\ but the CRA provision
is not a license to discriminate in employment on other
grounds.\38\ The CRA provision applies to ``the entire realm of
the employment arena,'' not just the hiring of individuals.\39\
Title I of the ADA includes a similar provision.\40\
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\36\42 U.S.C. Sec. 2000e-1(a).
\37\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).
\38\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'').
\39\Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 238 F.
Supp.2d 174, 180 (D.D.C. 2002).
\40\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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H.R. 1065 is stand-alone legislation that does not amend
any law and does not incorporate the CRA religious-organization
protection or any provision protecting religious organizations.
During negotiations over the Pregnant Workers Fairness Act in
the 116th Congress, Committee Republicans requested inclusion
of such a provision, but it is not included in H.R. 1065. Ms.
Camille Olson testified before the Subcommittee on Civil Rights
and Human Services and Subcommittee on Workforce Protections at
a joint hearing on several disparate bills, including H.R.
1065, on March 18, 2021. She noted in her testimony that
amending the PDA, which is a part of Title VII of the CRA,
would have the salutary effect of integrating H.R. 1065 with
Title VII, the contours and interpretations of which employers
are already familiar, and which would incorporate the
religious-organization protection from Title VII.\41\ As
Ranking Member Virginia Foxx (R-NC) stated during the Committee
markup, without the religious-organization protection, H.R.
1065 could force a religious organization to make employment
decisions in violation of the organization's faith.\42\
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\41\Fighting for Fairness: Examining Legislation to Confront
Workplace Discrimination: Hearing Before the Subcomm. on Civ. Rights &
Human Serv. & Subcomm. on Workforce Protections of the H. Comm. on
Educ. & Lab., 117th Cong. (2021) (statement of Camille Olson, Partner,
Seyfarth Shaw LLP, at 37).
\42\Press Release, Comm. on Educ. & Lab. Republicans, Foxx Opening
Statement at Markup of H.R. 7, H.R. 1065, and H.R. 1195 (Mar. 24,
2021), https://republicans-edlabor.house.gov/news/
documentsingle.aspx?DocumentID=407342.
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For example, if an employee working for a religious
organization requests time off to have an abortion procedure,
H.R. 1065 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
state pregnancy-accommodation laws. A Democrat-invited witness
at the October 22, 2019, Subcommittee on Civil Rights and Human
Services hearing on the Pregnant Workers Fairness Act 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.\43\
The Kentucky law includes a religious-organization protection
very similar to Title VII's protection.\44\ 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.\45\
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\43\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.).
\44\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.'').
\45\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).
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Committee Democrats contend 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 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.\46\
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\46\Id. Sec. 2000bb-1.
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Unfortunately, RFRA does not render the inclusion of a
religious-organization protection in H.R. 1065 unnecessary. The
CRA's provision provides stronger protections than those in
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. 1065 is enacted, federal agencies enforcing it 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.\47\ After
likely meeting this burden in a case brought under H.R. 1065,
the federal agency or private plaintiff would next argue an
accommodation pursuant to H.R. 1065 is the least restrictive
means to further this interest. At best, it is unclear 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.\48\ To ensure religious
organizations are not forced to violate their faith in
complying with H.R. 1065, 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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\47\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''), aff'd, Bostock v. Clayton Cty., 140
S.Ct. 1731 (2020); 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).
\48\Do No Harm: Examining the Misapplication of the ``Religious
Freedom Restoration Act'': Hearing Before the H. Comm. on Educ. & Lab.,
116th Cong. 53 (June 25, 2019) (statement of J. Matthew Sharp, Senior
Couns., Alliance Defending Freedom) (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.\49\ This substitute amendment offered by
Representative Russ Fulcher (R-ID), Ranking Member of the
Subcommittee on Civil Rights and Human Service, included H.R.
1065 in its entirety and simply added language incorporating
the religious-organization protection from the CRA.
Representative Fulcher's substitute amendment acknowledges the
improvements made to H.R. 1065 when compared to the bill
introduced in the 116th Congress, as discussed above. Although
H.R. 1065 is not the bill Committee Republicans would write
given a blank slate, the improvements included provide
sufficient clarity to pregnant workers and employers regarding
their rights and responsibilities, with the exception of the
omission relating to religious organizations. All Democrats
present voted against the amendment.
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\49\Markup of H.R. 1065, Pregnant Workers Fairness Act, Before the
H. Comm. on Educ. & Lab., 117th Cong. (Mar. 24, 2021) (substitute
amendment offered by Rep. Russ Fulcher (R-ID)).
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CONCLUSION
Committee Republicans strongly believe workplaces should be
free of discrimination, and pregnant workers deserve effective
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 existing provisions in H.R. 1065 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 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.
Tim Walberg.
Glenn Grothman.
Rick W. Allen.
Jim Banks.
James Comer.
Russ Fulcher.
Fred Keller.
Gregory F. Murphy, M.D.
Lisa C. McClain.
Diana Harshbarger.
Victoria Spartz.
Scott Fitzgerald.
Madison Cawthorn.
Julia Letlow.
[all]