Pregnant and Finally Protected

The Pregnant Workers Fairness Act—which took effect one year ago—has finally put the law squarely on the side of pregnant workers.

Dina Bakst, co-founder and co-president of A Better Balance, joins advocates, legislators and pregnant workers at a rally on Capitol Hill in support of The Pregnant Workers Fairness Act on Dec. 1, 2022. (Paul Morigi / Getty Images for A Better Balance)

I’ll never forget the pregnant clerk at a large New York City hotel chain who asked her manager if she could sit periodically during her nine-hour shift to help with the swelling in her legs. Rather than consider her request, her employer pushed her out of her job and onto public assistance.

Or the pregnant care attendant from New Jersey who requested light duty work to avoid having another miscarriage. Rather than explore a temporary reassignment, her employer immediately sent her home. Without savings, she ended up moving into a shelter, 17 weeks pregnant.  

Both of these women, and so many others that A Better Balance was hearing for over a decade, faced the same impossible choice: Do I follow my doctor’s orders and risk losing my paycheck, or even my job? Or do I keep working with no accommodation, and jeopardize my health or the health of my pregnancy?

The problem was due to fundamental gaps in our nation’s civil rights laws. The Pregnancy Discrimination Act (PDA) of 1978, a law designed to level the playing field for pregnant women, was failing workers with pregnancy-related limitations. The PDA’s formal equality framework requires pregnant workers to compare themselves to others in order to obtain a workplace accommodation for their health. But the pregnant workers we were hearing from—who were overwhelmingly women in low wage, inflexible and physically demanding jobs—needed immediate answers. They simply couldn’t afford to wait months, let alone years, for a judge to rule on whether they could use a stool or carry a water bottle at work.

By contrast, the Americans with Disabilities Act has provided an affirmative right to accommodation for workers with disabilities since its passage in 1990—but most pregnancy-related conditions are not deemed “disabilities” and therefore do not trigger ADA protection. As a result, pregnant workers in need of accommodation remained unequal and left behind.

The pregnant workers we were hearing from … couldn’t afford to wait months, let alone years, for a judge to rule on whether they could use a stool or carry a water bottle at work.

A rally on Capitol Hill in support of The Pregnant Workers Fairness Act on Dec. 1, 2022. (Paul Morigi / Getty Images for A Better Balance)

I knew the status quo needed to change, so along with my colleagues at A Better Balance, we set out to change it. After demanding a legislative fix in The New York Times and leading an 11-year fight for fairness and equality for pregnant workers, as documented in our 2023 report “Winning the Pregnant Workers Fairness Act,” that’s finally happening.

A Better Balance released a new report this month, “Pregnant and Finally Protected,” detailing how the Pregnant Workers Fairness Act—which went into effect one year ago this month—has shifted the paradigm and finally put the law squarely on the side of pregnant workers. Similar to the ADA, the PWFA guarantees an affirmative right to accommodations for millions of workers affected by pregnancy, childbirth and related medical conditions—including lactation, miscarriage and postpartum depression—absent undue hardship to the employer. No longer can a pregnant worker be forced off the job when a temporary accommodation can keep them healthy and attached to the workforce.

The PWFA has been a lifeline for the vast majority of workers A Better Balance has spoken to on our free work-family legal helpline over the last year. With our direct support, nearly 500 workers have been able to use the PWFA to request and receive the accommodation they needed to protect their health during pregnancy and after childbirth, and keep their jobs.  Tens of thousands more have relied on our sample letters and “Know Your Rights” materials to advocate for themselves.

We’ve supported women like Victoria, a pregnant custodial worker in South Carolina, who was initially forced out on unpaid leave when she requested light duty work and extra breaks. But this time, relying on our resources, she successfully advocated for herself and returned to her normal shift the following day. 

And women like Kirsten, a part-time enrollment specialist at a community college in Arizona. With our support, Kirsten was also able to successfully request leave to recover from childbirth under the PWFA. This was a game changer for Kirsten, who wasn’t eligible for any job-protected leave under the Family and Medical Leave Act, and feared that she wouldn’t have a job to return to after she gave birth.

And finally, women like Beca, a certified nurse assistance in Massachusetts. With our guidance, Beca asserted her right to light duty work to accommodate her pregnancy-related condition.

“When I went into work, I wasn’t afraid to request reasonable accommodations because I wasn’t alone,” Beca said. “I didn’t have a person with me, I had a federal law to help me. Suddenly they agreed to accommodate me after being completely resistant before.”   

While we’ve witnessed the PWFA’s groundbreaking benefits this past year, enforcement challenges remain. Many employers remain unaware of the law’s requirements. They still reflexively place workers on leave, take far too long to respond to a worker’s request for accommodation or insist they complete onerous disability paperwork. Ongoing outreach, education and enforcement of the PWFA will be essential to realizing the full promise of this monumental new law in the years ahead.  

When I first called for the Pregnant Workers Fairness Act in 2012, I couldn’t have anticipated that it would take over a decade of tireless advocacy for such a vital yet common-sense law to pass. But, as the stories of so many individuals who are experiencing the life-changing health and economic benefits of this new law show, fighting for fairness, dignity and equality is always worth it.

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Dina Bakst is co-founder and co-president of A Better Balance, a national legal advocacy organization dedicated to promoting fairness in the workplace and helping workers care for their families without risking their economic security.