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Wednesday, May 9, 2012

Do We Need the Pregnant Workers Fairness Act?


Most employers treat pregnant women fairly.  Bathroom breaks, seated work, water and snacks, help with lifting and the like are made available as needed not only as a matter of human decency but also as a matter of good human resources management.  After all, keeping good employees and enabling their productivity accrues directly to the bottom line.

So do we need new federal legislation to treat pregnant workers fairly? Yesterday, Representatives Jerrold Nadler, Carolyn Maloney, and others  introduced a bill known as the “Pregnant Workers Fairness Act”  that would require employers to make reasonable accommodations that pregnant workers need to be able to keep working and would prevent employers from forcing pregnant workers to take leave that they do not want or need when a reasonable accommodation would make it possible for them to continue to work.  “Reasonable accommodation” would have the same meaning as under the Americans with Disabilities Act, and the bill contains a provision like the ADA’s that would protect employers from having to provide accommodations that would create an undue hardship.  The employers and employees covered would be the same as those covered by Title VII.

Unfortunately, this legislation is very much needed.  Too many employers force pregnant women to choose between health and a paycheck by refusing to let them do small things that would make it possible for them to work.  The WorkLife Law FRD Case Database that I maintain has hundreds of examples of pregnant women who were terminated when small, reasonable, temporary changes in their jobs were denied – sometimes by employers who expressly refused accommodation because no law required it. Examples include a pregnant retail worker who was fired for carrying a water bottle, pregnant women who were fired when they needed help lifting, a pregnant worker who was denied a stool to sit on, a pregnant hospital technician who was denied a sedentary position and then fired, a pregnant cable technician who could do buried cable work and requested the assistance of a bucket truck to do aerial work was terminated, and a pregnant Latina cashier who was forced to quit when she was not transferred to suitable position even though a position was open and pregnant white women had been transferred to similar positions in the past.

There are numerous reasons to pass the legislation, including that it will save jobs, prevent financial hardship for families, and decrease employee turnover.  There is little in the bill for employers to fear.  As noted, most already comply, and employers in several states already operate under statutes that require accommodation for pregnant workers.  Moreover, the proposed statutory framework is familiar: workers with disabilities are accommodated in the workplace and the bill requires only that pregnant workers be similarly accommodated.
 
There is another good reason to pass the bill: plaintiffs’ lawyers are bringing an increasing number of cases against employers for failing to accommodate pregnant workers, and the number is likely to grow as courts interpret the Americans with Disabilities Amendments Act to require more accommodation.  EEOC Commissioner Chai Feldblum asked at the February EEOC meeting if failing to accommodate pregnant workers is risky business – a question witnesses at the meeting clearly answered “yes.”  The proposed legislation would reduce employer’s litigation risk by clarifying employers’ obligations with respect to accommodation of pregnancy and ultimately reducing the number of failure-to-accommodate cases. 

As the best employers know, treating workers fairly is a surefire way to boost productivity, reduce costs, and provide great service and products – regardless of whether the workers are pregnant.

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