With the pandemic disproportionately affecting women’s ability to maintain employment, it is time to provide greater job accommodation rights for pregnant workers across the United States.
The federal Pregnancy Discrimination Act (“PDA”) is not adequate to protect pregnant women from being fired or forced to quit when they need a simple, reasonable accommodation – like temporary light duty – to keep their jobs. To prevent pregnancy discrimination, protect public health, and promote women’s full and equal participation in the workforce, the PDA should be amended to expressly require employers to provide reasonable accommodation for pregnancy, childbirth, and related medical conditions.
The Supreme Court Refused to Invalidate Light Duty Policies That Don’t Apply to Pregnant Workers
In 2015, the Supreme Court of the United States (“SCOTUS”) ruled in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), that the PDA requires employers to accommodate a pregnant employee who is temporarily unable to perform or limited in performing the functions of her job because of pregnancy in the same manner as it accommodates other employees “who are similar in their ability or inability to work.” But SCOTUS rejected a rule that employers must provide light duty or other job accommodations to pregnant employees if they provide such accommodations to employees who are injured on the job or are disabled.
As a result, some employers still have a policy or practice of providing light duty only in the workers’ compensation context and refusing light duty to pregnant workers – and even when they could do so with little or no burden. In fact, even though it claims to have “updated” its policy, Walmart is currently defending a limited light duty policy as non-discriminatory against pregnant women in federal district court in Wisconsin.
The Supreme Court’s Unworkable Framework
Rather than provide a clear, practical framework, SCOTUS’s test for job accommodation discrimination under the PDA has bred more confusion and litigation.
- SCOTUS explained that an employer’s reason for denying accommodation “normally 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.” 135 S.Ct. at 1354. That leaves it to workers and employers to fight over, and for judges to decide, what is too expensive and too inconvenient.
- SCOTUS further explained that a plaintiff could get a jury trial on an accommodation discrimination claim “by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.” That leaves for a judge to decide what is a significant burden and a sufficiently strong reason?
- SCOTUS offered as an example of such evidence “that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” That, again, leaves to judges to decide what is a large percentage.
These amorphous provisions do not help employees and employers understand their rights and obligations. And having to resort to litigation, with judges interpreting and applying the framework, has led to inconsistent results and denials of many reasonable accommodations for pregnant women.
Amend the PDA To Stop Disadvantaging Women in the Workplace
As the #MeToo, #TimesUP, and other movements driven to achieve equality for women in the workplace have advocated, women should not be disadvantaged in employment for bearing the sole responsibility of carrying and conceiving children. They should be given added protection to keep jobs that their families depend upon.
It is time for the PDA to be amended to invalidate light duty and other job accommodation policies that do not apply to pregnant workers. It is time for the PDA to be amended to require reasonable accommodation (without undue hardship) of pregnant workers, like the laws of some states and the District of Columbia require. That would simplify the law, bring all employers into the 21st century, and help counter the pandemic’s strain on workplace gender equality.
Written by: Laura Lindner
For more than 27 years, Laura has represented employers in employment litigation cases. She is a tenacious and successful litigator who has tried many cases throughout the country and has resolved many disputes through tough, skilled negotiation. She is known for providing clients excellent advice, unmatched service, and steadfast emotional support throughout difficult employment situations.