By Dina Bakst
Dina Bakst is a founder and co-president of the national nonprofit A Better Balance, a legal advocacy organization advancing justice for workers caring for themselves and their loved ones.
In July 2020, the free legal helpline my organization runs received a call from a pregnant nurse in Georgia who often had to lift patients on her own. The nurse — whose name I’m omitting to protect her privacy — was also forced to interact with suspected covid-19 patients in the emergency room, without the protection of an N95 mask. She told us she had requested reasonable accommodations from her employer — a temporary transfer, assistance with lifting, permission to wear an N95 — but the employer denied them. And so, worried about her ability to maintain a healthy pregnancy, she quit.
The United States has no federal law providing workers with an affirmative, clear and effective right to reasonable accommodations for pregnancy, childbirth and related medical needs. This woman’s experience, and those of thousands like her, illustrates the urgent need for such a law — especially when the pandemic has exacerbated the unjust, discriminatory treatment of pregnant workers.
What is clear from the calls we receive is that the realities for pregnant workers in inflexible, low-wage or physically demanding jobs — such as cashiers, nurses, restaurant servers and retail workers, the roles deemed so essential during the pandemic — stand in sharp contrast with those of higher-income workers who have had the luxury of working from home.
According to the National Women’s Law Center, more than 1 in 5 pregnant workers are employed in low-wage jobs, “which are particularly likely to be physically demanding.” A lack of accommodations in these and other front-line jobs during the pandemic has made matters even worse for pregnant people — who, according to the Centers for Disease Control and Prevention, “are more likely to get very sick from covid-19 compared to people who are not pregnant,” and who face increased risk during and for at least six weeks after pregnancy if they are older than 25 or have underlying medical conditions.
Pregnant workers do not just contend with health risks. They also encounter prejudice and rigidity that leads to immediate and long-term economic harm. When denied accommodations that would make it possible for them to keep working, they are routinely forced out on unpaid leave or fired — resulting in lost income, discontinuation of health care, and a loss of seniority and other benefits. These expectant parents often fall deeper into debt or must rely on public assistance to make ends meet.
Perhaps not surprisingly, data shows that low-wage pregnant workers are disproportionately Black and Latina women. Facing the confluence of racism and sexism, they toil in conditions that make them particularly vulnerable to mistreatment, discrimination and pregnancy complications, such as preterm delivery, low birth weight and miscarriage.
The inability of pregnant workers to receive accommodations is not only a social problem but also a legal one, rooted in fundamental gaps in our nation’s protections. The Pregnancy Discrimination Act (PDA), a 1978 law intended to root out centuries of discrimination, requires pregnant people to jump through hoops and identify someone else at their workplace “similar in their ability or inability to work” to win their own medically necessary accommodation — even if that accommodation is as basic as the use of a water bottle or the right to take a bathroom break.
A recent analysis of 200 cases conducted by my organization showed that in approximately two-thirds of relevant cases, federal courts have held that employers could deny accommodations under the PDA, largely because of this burdensome comparison standard. Pregnant workers also routinely fail to qualify for an accommodation under the Americans With Disabilities Act because pregnancy is not a disability; even those with high-risk conditions or severe complications have been denied protection.
The good news is that legislation to address this gap, the Pregnant Workers Fairness Act — introduced in the House 10 years ago this May — was approved last year by the House with overwhelming support from Republicans and Democrats. The bill, awaiting a vote in the Senate, would create a clear national standard requiring employers to provide accommodations to pregnant workers who need them, absent undue hardship to the employer — similar to the standard in place for workers with disabilities.
The bill has broad bipartisan support from legislators, voters and unions, as well as faith, health and civil rights groups, and the business community. As we approach Mother’s Day, the Senate should vote to pass the Pregnant Workers Fairness Act and finally put an end to this country’s unconscionable second-class treatment of pregnant and postpartum workers. The choice between a paycheck and safe pregnancy and recovery from childbirth is one that no person should have to make.