Mr. Speaker, I rise today in strong support of the Pregnant Workers Fairness Act. This meaningful legislation will protect pregnant workers who have suffered because of insufficient workplace protections, a story far too familiar to many…
Mr. Speaker, I rise today in strong support of the Pregnant Workers Fairness Act.
This meaningful legislation will protect pregnant workers who have suffered because of insufficient workplace protections, a story far too familiar to many workers in my district in Memphis, Tennessee.
In 2018, I was shocked to read of the disturbing workplace abuses in an XPO Logistics warehouse in Memphis, which was reported in The New York Times. Warehouse workers were denied minor and reasonable accommodations, like less taxing workloads and shortened work shifts. These were pregnant workers.
As a result, several women suffered miscarriages, some of which happened while they were still on the warehouse floor.
I, along with Congresswoman DeLauro and 97 of my colleagues, wrote to the Education and Labor Committee to urge the 115th Congress to take decisive action and consider the Pregnant Workers Fairness Act.
I also participated in the Education and Labor Committee's subcommittee hearing on this bill last Congress.
Many pregnant workers are being forced to choose between maintaining a healthy pregnancy and losing their jobs at a time when both their healthcare and their economic security are crucial.
The Pregnant Workers Fairness Act will ensure that pregnant workers get accommodations when they need them without facing discrimination or retaliation in the workplace by putting in place a clear, explicit pregnancy accommodation framework similar to the accommodation standard that has been in place for decades for workers with disabilities.
I urge passage of this bill. I include in the Record the Better Balance report on the need for this law in spite of inaction by the State and the need for the 14th Amendment to be invoked. About eight States are included here.
May 13, 2021.
A Better Balance Legal Analysis of State Actor Pregnancy-Related Gender
Discrimination
Decades after Congress passed the Pregnancy Discrimination
Act (``PDA''), pregnant workers continue to face pernicious
and unconstitutional gender discrimination at the hands of
their employers, including state actors.
Evidence of persistent discrimination by state actors
against pregnant workers in need of accommodation warrants--
and indeed demands--Congress's exercise of its Section 5
power under the Fourteenth Amendment to remedy and deter
violations of equal protection.
In the 21st century, sex discrimination against pregnant
workers often takes the form of reliance on insidious gender
role stereotyping concerning women's place in the home and in
the workplace. Too often, such stereotypes--such as, that
motherhood and employment are irreconcilable--force pregnant
women ``to choose between having a child and having a job.''
Stereotyping surrounding pregnancy and motherhood is
pervasive, and biases can be intentional, implicit,
unconscious, or structural. For instance, a study published
in June 2020 surveying pregnant women who work in physically
demanding jobs found that 63 percent of women surveyed
worried about facing negative stereotypes related to their
pregnancy, and many avoided asking for accommodations,
sensing instead that they needed to overexert themselves
physically in order to avoid stereotyping. As a result, the
study's authors recommended ``creat[ing] better social
support for utilizing pregnancy accommodation.'' Those
pregnant women who are let go or pushed out for needing
accommodation face a double burden based on stereotyping:
After losing critical income at the very moment their growing
family needs it most, they must then fight to re-enter a job
market that assumes new mothers are less competent and
committed than fathers and their childless peers.
As the Supreme Court has repeatedly reaffirmed, such sex
role stereotyping is a problem of constitutional magnitude.
Indeed, the constitutional right to be free of invidious sex
stereotyping ``at the faultline between work and family'' is
now well-established For instance, in Nevada Department of
Human Resources v. Hibbs, the Court rejected the ``sex-role
stereotype'' that ``women's family duties trump those of the
workplace. Craig v. Boren, the Court rejected ``outdated
misconceptions concerning the role of females in the home
rather than in the 'marketplace and world of ideas.' '' And,
in Califano v. Westcott, the Court rejected ``the baggage of
sexual stereotypes that presumes the father has the primary
responsibility to provide a home and its essentials, while
the mother is the center of home and family life.''
Yet state employers continue to participate in and foster
unconstitutional sex discrimination, including gender-role
stereotyping, by failing to provide reasonable accommodations
to allow pregnant women to be both mothers and wage earners.
The problem is pervasive. To offer just a handful of
examples:
In Alabama, Devyn Williams, a correctional officer trainee,
informed her employer, the Alabama Department of Corrections,
that she was pregnant. Corrections officials immediately
began to discuss how to terminate Williams, with one deputy
commissioner commenting in an email, ``Let me guess, we have
to pay this person [Williams] through the entire
pregnancy[?]''. At officials' urging, Williams provided a
doctor's note recommending she be excused from the state's
monthly physical training session due to her pregnancy. Upon
receipt of the note, one corrections official emailed the
others, ``[t]his [doctor's note] will give us grounds to
separate [Plaintiff] from service.'' The state promptly fired
Williams. In one sense, Williams was lucky: Alabama officials
had the poor judgment to document their animus. Their emails
made explicit the unconstitutional sex stereotypes motivating
their refusal to accommodate. Employers do not always put the
animus underlying their failures to accommodate in
discoverable emails. The PDA has failed to root out such
intentional yet ``subtle [forms of] discrimination that [are]
difficult to detect on a case-by-case basis,'' thanks in part
to a proof structure that demands onerous and lengthy
litigation. (Williams was still litigating her case nearly
five years after she requested accommodation.)
In Oklahoma, Clarisa Borchert, a childcare attendant,
informed her employer, a state university child care center,
that she was pregnant. When Borchert's doctor recommended a
20-pound lifting restriction--which Borchert believed would
allow her to continue to care for infants--the state told her
that she would not be permitted to work ``with restrictions
of any kind.'' The gender-based animus underlying the state's
blanket refusal to accommodate Borchert's pregnancy was
revealed by the ``daily disparaging comments'' made by
Borchert's boss and other employees about her pregnancy. For
instance, in response to Borchert's ``severe and ongoing
nausea and vomiting caused by her pregnancy,'' her boss told
her to ``get over it'' and accused her of feigning illness,
telling Borchert that she ``wasn't
really sick.'' Soon thereafter, the state issued Borchert a
Separation Notice.
In New York, Lakia Jackson, a nurse technician, informed
her employer, a state university, that she was pregnant.
Jackson repeatedly requested assistance changing patients,
which her state employer denied because, in the words of her
supervisors, the university ``does not accommodate pregnant
women.'' As a result of the strain of changing one patient,
Jackson had to be rushed to the emergency room and ``nearly
[went] into pre-term labor.'' In defense of its refusal to
accommodate Jackson's pregnancy, her state employer invoked a
common sex stereotype about pregnant women: that she was
simply ``using her pregnancy as an excuse for not doing her
work.'' The state terminated her shortly thereafter.
In Tennessee, Amber Burnett, a veterinary assistant,
informed her employer, a state university, that she was
pregnant. When Burnett alerted her employer that she could
still work but that her physician had advised minimal or no
contact with diseased animals placed in isolation, her
employer told her that ``she should begin looking for another
job.'' Shortly thereafter, the state terminated her. In
justifying the termination, the state claimed concern for the
potential for harm to Burnett's pregnancy--a rationale that
the Supreme Court recognized decades ago is rooted in
impermissible sex discrimination.
In North Carolina, Lauren Burch, a special agent, informed
her employer, the state alcohol enforcement agency, that she
was pregnant. On her doctor's advice, Burch requested light
duty status to avoid ``situations that would put her at risk
for physical altercations.'' Her state employer approved the
request but assigned her to a worksite that ``required a
daily, six-hour round-trip commute'' (for which she was
provided ``no work credit for travel time'' and was forced to
use ``her personal vehicle at her own expense''). The state
refused to grant her an assignment with a shorter commute--
despite Burch's doctor's recommendation that she travel no
more than 1.5 hours--and pushed her onto unpaid leave.
In Illinois, Tracy Atteberry, a police officer, informed
her employer, the Illinois State Police, that she was
pregnant. Upon the advice of her doctor, she requested light
duty, which the state denied, despite providing light duty to
other non-pregnant employees with medical needs. Instead, the
state forced Atteberry to use up her personal time prior to
giving birth to her child.
In Oregon, Maricruz Caravantes, a caregiver, informed her
employer, a state agency, that she had a high-risk pregnancy.
Upon the advice of her doctor, Caravantes requested--and was
denied--assistance with lifting patients, causing her to
``seriously injure[]'' her back.
In Kansas, Deanna Porter, a psychiatric aide, informed her
employer, a state hospital, that she was pregnant. When
Porter's doctor advised that she avoid lifting more than 40
pounds, the state refused to allow Porter to work with the
lifting restriction in place and sent her home. Shortly
thereafter, she was terminated.
Due to a combination of gaps in the law and narrow judicial
interpretations, Congress's efforts through the PDA to
eradicate ``the pervasive presumption that women are mothers
first, and workers second'' have ``proved ineffective for a
number of reasons.'' First, as described in A Better
Balance's report, ``Long Overdue,'' two-thirds of women lose
their PDA pregnancy accommodation claims in court. A high
percentage of these losses can be traced to courts' rejection
of pregnant workers' comparators or to workers' inability to
find a comparator, under the Supreme Court's Young framework.
The Young standard also has done little to create clarity in
the law, sowing confusion among lower courts, juries, and
litigants alike. As A Better Balance co-president Dina Bakst
testified earlier this year:
[R]ecent decisions further illustrate how steep a barrier
Young and its comparator standard have erected to proving
pregnancy discrimination in court. Workers, especially low-
wage workers--and particularly women of color--typically do
not have access to their coworkers' personnel files and do
not otherwise know how they are being treated. Often, this
information is rightly confidential, which means a pregnant
worker would be unable to find the information needed to show
they are entitled to an accommodation.
Second, litigating accommodation cases under the PDA has
proven so onerous and timeconsuming as to be wholly
ineffective in the lives of real women. As noted above, Devyn
Williams was still litigating her accommodation case nearly
five years after she requested accommodation. Such delay has
devastating consequences for pregnant workers who need
accommodation promptly, not five years later. As our co-
president testified:
Most pregnant workers do not have the resources, time, or
desire to engage in timeconsuming and stressful litigation to
attempt to obtain such information. They want, and need, to
be able to receive an accommodation promptly, so they can
continue earning income while maintaining a healthy
pregnancy.
Finally, even when pregnant workers win their PDA
accommodation cases, it is because they are lucky enough to
find the perfect comparator or, like Devyn Williams, to have
a state employer foolish enough to document their gender
animus in a ``smoking gun'' email--the kinds of evidence
courts have deemed necessary to prevail under the PDA. The
many pregnant women who lack such evidence--but who
nevertheless are denied the accommodations they need due to
their state employers' animus and stereotypes--do not bring
suit at all, a reality A Better Balance often hears from
workers on its legal helpline. If a standard is so onerous as
to prevent workers from seeking justice, that means current
law offers no adequate remedy for a pernicious,
unconstitutional form of discrimination.
The PDA's failure to combat states' record of
unconstitutional gender discrimination demands further action
by Congress. Where, as here, ``Congress ha[s] already tried
unsuccessfully'' to remedy violations of equal protection and
such ``previous legislative attempts ha[ve] failed,'' then
``added prophylactic measures'' are justified and, indeed,
imperative. The Pregnant Workers Fairness Act (PWFA) is just
such a measure.
The PWFA is narrow, tailored, and targeted to combat gender
discrimination, including invalid sex role stereotypes about
the place of ``mothers or mothers-to-be'' in the work sphere.
By requiring reasonable accommodation of pregnant workers
only where doing so would not cause employers undue hardship,
the PWFA is carefully crafted to deter and quickly remedy
unconstitutional sex discrimination in the hiring, retention,
and promotion of young (potentially-pregnant) women and soon-
to-become mothers. Moreover reasonable accommodations for
pregnancy are inherently time-limited, and the vast majority
of accommodations pregnant workers need, like the right to
carry a water bottle or sit on a stool at a retail counter,
are low-cost or no-cost. The minimal (or non-existent)
economic cost of a pregnancy accommodation is one reason
major industry groups, such as the U.S. Chamber of Commerce,
champion the PWFA.
We urge Congress to pass this much-needed legislation: