Six months into her second pregnancy, Lauren Porter, a production scheduler at a Virginia shipyard, started struggling with back pain, which was aggravated by her commute and the eight-hour shifts at her desk. Porter had done her job remotely during the pandemic, and asked her manager—with a note from her chiropractor—if she could work from home for the remainder of pregnancy. Her request was rejected; she was told to take a leave of absence instead. Porter, whose family relies on her income, was at a loss. “I didn’t know what to do,” she says.
Looking online for resources, she came across legal advocacy group A Better Balance, who pointed her to a state law that requires employers to make accommodations for pregnant workers. She took that information to her company’s HR department, which signed off on her request to work from home. Porter did so until the baby arrived: her last day was on a Friday and her baby girl was born that Monday.
While Porter was fortunate enough to live in a place with a state law safeguarding pregnant workers, such protections have been unavailable to many—until this year. The federal Pregnant Workers Fairness Act (PWFA) took effect in June, becoming the first new federal law to address pregnancy protections since the 1970s. The legislation is a rarity for another reason too: it passed with broad bipartisan support and a coalition of backers rarely seen on the same side, including the ACLU, religious organizations, and the U.S. Chamber of Commerce.
The law fills a gap for women forced to choose between maintaining a healthy pregnancy and keeping their job, paycheck, and insurance, advocates say, particularly those in low-wage and male-dominated jobs. One survey last year found 20% of moms in the workplace had experienced pregnancy discrimination and 23% had considered leaving a job because accommodations were lacking or because they feared pregnancy discrimination, according to results from the Bipartisan Policy Center and pollster Morning Consult.
Before the passage of the PWFA, a growing number of state laws offered protections, but under federal law it could be difficult for employees to get accomodations. The 1978 Pregnancy Discrimination Act has offered some protections, but only requires employers to offer accommodations if a pregnant worker is deemed “similar” to other employees who get accommodations, such as workers who are injured on the job. Women have often lost those disputes in court; between 2015 and 2019 lower courts ruled in favor of employers that had denied pregnancy accommodations in more than two-thirds of cases, according to a study by A Better Balance. Under the Americans with Disabilities Act, some pregnancy-related complications might also qualify as a disability—like anemia or gestational diabetes—but the law does not apply broadly to pregnancy.
The new law aims to simplify that patchwork, requiring all businesses with 15 or more employees to give reasonable accommodations to pregnant workers, provided the changes don’t create an “undue hardship” for the employer. That framework borrows from the Americans with Disabilities Act, which is already familiar to many businesses. Changes for pregnant workers could be as simple as permitting an employee to carry water, sit on a stool, or take bathroom breaks.
In a deeply polarized country, where something as essential as funding the government or raising the debt ceiling becomes a high wire act, passing any piece of legislation—much less one that creates new worker protections—is a surprising achievement. The case of the PWFA, with its unlikely group of supporters, is particularly worth examining. It’s a story of compromise, patient coalition building, building from the grassroots up, and seeking win-win outcomes. And while it would be pure Pollyanna to think every piece of legislation could do the same, there may be lessons here that could help other bills succeed.
The first Congressional bill was introduced by Rep. Jerrold Nadler (D-NY) just ahead of Mother’s Day in May 2012. While the legislation didn’t get much traction in the House, the issue was starting to catch on at the local state and level, where A Better Balance, the ACLU, and others were applying their lobbying muscle. From 2013 to 2021, more than two dozen states and cities, both Blue and Red, adopted their own laws protecting pregnant workers, at times with crucial support from the business community.
The appeal across party lines at the state level was striking, says Deborah Widiss, an Indiana University law professor who has written about and supported PWFA legislation. In her view, the bills gained bipartisan votes not only because the existing standards were confusing, but because the idea that pregnant workers should be able to keep working, with small accommodations for their safety, resonated broadly. “That just feels right and fair for a lot of people, and that’s true regardless of party,” Widiss says.
A Kentucky bill, for instance, won the endorsement of local chamber of commerce Greater Louisville Inc. Legislators heard testimony from Greater Louisville Inc. connecting the need for pregnancy accommodations to the state’s labor-force participation rate for women, which was among the lowest in the country. The bill passed in that state’s Republican-controlled statehouse and was signed by its Republican governor in April 2019.
Liz McQuillen, the group’s former director of government affairs, says boosting workforce participation is a priority for Greater Louisville Inc. The new law establishes “clear guidelines for employers, to help encourage and support pregnant workers and new mothers that want to stay in the workforce—just by giving them common sense accommodations,” she says.
Such state-level wins helped boost lobbying efforts in Washington. “I think it showed Congress that this did go beyond ideological lines, that this was a real problem, that there was a fix,” says Vania Leveille, senior legislative counsel and chief lobbyist for women’s rights and disability rights with the ACLU.
The PWFA bill was introduced in the House for a fifth time in May 2019 and received its first Congressional hearing in October 2019. Michelle Durham, a former EMT in Alabama, testified about how her life was derailed when she was denied a reprieve from heavy lifting during her pregnancy, a modification that her employer made available to injured workers. Instead, she said, she was forced to go on unpaid leave, lost her health coverage, and had to move in with her grandmother when she couldn’t immediately find another job. Durham sued her former employer in 2016; the case settled in 2022, nearly seven years after she lost her job.
“All of my clients, to a one, have said, I just want to keep working,” says Gillian Thomas, a senior staff attorney with the ACLU who has litigated pregnancy cases for 15 years and represented Durham on appeal. “No person ever relishes suing and by the time they’re suing the damage has been. They’ve lost their job, they’ve lost their income, their credit’s been screwed up, they’ve been evicted.”
The desire to resolve such situations before they end up in court is something that both worker advocates and business groups had in common. “There was a need for some other legislative approach that says, OK, here’s what’s going to happen when you have a pregnant employee in the workplace who needs an accommodation,” says Marc Freedman, vice president of workplace policy for the Chamber of Commerce.
The Chamber didn’t support early versions of the bill that said employers couldn’t require a worker to accept an accommodation suggested by the company. But it did see enough potential in the bill to open negotiations with its supporters. Those talks yielded an agreement to incorporate a key concept from the Americans with Disabilities Act: the “interactive process”—a dialogue that includes both the employee’s needs and the employer’s assessment of the options it can provide.
The change gave more weight to provisions against creating an “undue hardship” for the employer. “It builds in some guardrails against some accommodations that just wouldn’t be feasible,” says Freedman. “That’s good for the employers, but we also think it benefits the employees in terms of getting to a resolution quicker and making the process more transparent.”
The bill passed the House with 315 votes in favor in May 2021, and got through the Senate the next year, when 73 Senators voted to include it in a larger appropriations package. The new law went into effect June 27.
Now comes the need to educate workers and employers on what the Pregnant Workers Fairness Act means for them. The U.S. Equal Employment Opportunity Commission, which oversees federal claims of workplace discrimination, is in charge of enforcing the law. The agency has issued proposed regulations that define terms and give examples of reasonable accommodations, including frequent breaks, schedule changes, telework, and modifying uniforms. A public comment period on the agency’s proposal closed Oct. 10.
The message to employers is: “Just accommodate,” says Liz Morris, deputy director of the Center for WorkLife Law at UC Law San Francisco. “The game has totally changed, and whereas in the past employers could often get away with not accommodating pregnant people, that is no longer the case.” Once workplaces get used to that, “it’s going to seem normal,” she says.
In parts of the country with no state laws requiring pregnancy accommodations, the learning curve may be steeper. The Center for WorkLife Law’s legal helpline has fielded calls from workers in states like Florida and Texas that didn’t previously have such protections, asking to clarify their rights and saying their employers weren’t aware of the new law.
Lauren Porter, the former shipyard worker, celebrated her daughter’s first birthday in May, and in June was invited to speak at a White House event celebrating the PWFA. She urges expectant moms who are struggling physically at work to look into ways their jobs could take a lesser toll, even something as simple as a foot stool or a desk closer to the bathroom. And no matter what, she says: “Put your health first, put your child’s health first.”
Write to Catherine Dunn at [email protected]
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