Last week marked a historic moment in the lives of our nation's pregnant workers: After more than a decade of advocacy on Capitol Hill, the Pregnant Workers Fairness Act, signed by President Joe Biden in December 2022, went into effect. PWFA mandates "reasonable accommodations" for pregnant workers unless providing them would impose an "undue hardship" on their employer. For millions of U.S. workers, the new law promises to assure they no longer will have to choose between their paycheck and a healthy pregnancy.
Pregnancy is a normal condition of employment; more than 80% of all working women will have at least one child during their lives. But existing legal protections have been glaringly insufficient for workers whose duties may conflict with pregnancy's physical realities — such as cashiers (prolonged standing), nurses (repetitive heavy lifting), custodians (exposure to chemicals) and firefighters (battling potentially lethal blazes). Under the Pregnancy Discrimination Act, enacted in 1978, pregnant workers have been entitled to temporary job modifications only if their employer provides them to others "similar in their ability or inability to work." That language long has been used to deny needed accommodations to pregnant workers, on the grounds that favored nonpregnant colleagues are insufficiently "similar."
Even after the Supreme Court's 2015 Young v. United Parcel Service, Inc. ruling clarified that employers must have a compelling reason for denying accommodations to pregnant workers while granting them to others, employers — and judges — continued to withhold them. One study found that more than two-thirds of workers brought PDA failure-to-accommodate claims after Young lost their court cases.
ACLU client Michelle Durham was one of them. In March 2015, Michelle learned that she was pregnant with her first child. Michelle's doctor told her not to lift anything over 50 pounds; because Michelle's job duties as an Emergency Medical Technician (EMT) regularly required that she lift patients and stretchers far heavier than that, she asked her employer, Rural/Metro Corporation — a company providing medical care to underserved communities — to temporarily reassign her.
What happened next derailed Michelle's life, and propelled her into the spotlight as an advocate for pregnant workers' rights. Rural/Metro gave Michelle an ultimatum: Keep lifting heavy loads in violation of her doctor's orders or go on an unpaid leave of absence for 90 days — after which she would be fired unless she returned to work. With six months to go until her due date, Michelle was terrified; she desperately needed her paycheck.
As she later put it, testifying in support of PWFA before Congress, "I wouldn't trade the experience of being (my son's) mom for anything. But I will never be able to get back those months before and after he was born, when all I could think about was what I was losing by being pregnant — not what I was gaining." Ultimately, Michelle left Rural/Metro rather than risk her pregnancy. She had to move in with her grandmother, racked up credit card debt and incurred crushing hospital bills when she delivered her son.
After filing a lawsuit, Michelle ultimately reached a settlement with Rural/Metro that provided some relief for the hardship she had experienced. The bad news is that her legal battle took seven years, in part due to a federal judge's ruling that, under the PDA, Michelle was not "similar" to EMTs with occupational injuries. The ACLU won reversal of that decision on appeal, but the same judge reached a similarly erroneous conclusion at a later stage of the case.
As detailed in a new explainer on PWFA's protections — co-authored by the ACLU and the Center for WorkLife Law — pregnant people needing accommodation no longer must identify "similar" nonpregnant co-workers. Modeled on the Americans with Disabilities Act, employers must grant pregnant workers an accommodation so long as it is "reasonable" and does not impose an "undue hardship" on the employer. Such clarity will aid workers and their employers alike in reaching mutually agreeable solutions, with less cost and disruption — not to mention delay — than litigation.
As Michelle Durham put it before Congress, "Pregnant workers need to be able to point to the law, in real time, to make their employers do the right thing so that a long-fought lawsuit isn't necessary." She added, "My employer could have kept me on the job, but it didn't — because it didn't think it had to." Now, Congress has left no doubt that they do.
Gillian Thomas is a senior staff attorney with the ACLU's Women's Rights Project. Vania Leveille is the senior legislative counsel at the ACLU's National Political Advocacy Department. For more than 100 years, the ACLU has worked in courts, legislaturesP and communities to protect the constitutional rights of all people. With a nationwide network of offices and millions of members and supporters, the ACLU takes on the toughest civil liberties fights in pursuit of liberty and justice for all. To find out more about the ACLU and read features by other Creators Syndicate writers and cartoonists, visit the Creators website at www.creators.com.
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