Background reading:

• “The Pregnant Workers Fairness Act Is Essential to Democracy.” — Ms. magazine x A Better Balance
• “Pregnant, and Pushed Out of a Job” — Dina Bakst

Transcript:

Dr. Michele Goodwin: Welcome to 15 Minutes of Feminism, part of our On The Issues with Michelle Goodwin at Ms. Magazine platform. As you know, on our shows, we report, rebel, and we tell it just like it is. And on 15 Minutes of Feminism, we dive right in, and we count the minutes in our own feminist terms. There’s much to report on and to discuss about what’s happening in our nation and across the world. Where does one even begin to discuss the issues that are so urgent that we unfold? How do we keep our eyes on the prize, our focus on democracy? How do we make sure that each member of our society is uplifted as they deserve to be? Well, we are doing this one foot in front of the other one podcast at a time, one commentary and op-ed, an article at a time at Ms. Magazine and Ms. Studios. And, we are also making sure that we center successes and joy, that which women are defending and building and preserving every day. And that’s what we’re doing in this particular episode. We know that the next four years will present, as they already have, any number of challenges to democracy, to constitutional law, to the rule of law, and we also know that this is not the first time that women have had to step into the fold in order to direct what should be the fabric of our democracy. And so, as we think about how feminists reckon with this administration, one that’s shown that it’s hostile to many women’s rights, and in fact, an administration that’s already directed that the terms ‘women,’ ‘woman’ be painted over in federal office buildings. But there is so much more for us to think about, including past wins that are delivering today, and we want to make sure that they deliver today. And really that’s part of the focus of our Women in Democracy series, and actually the subject of this podcast, one of those wins implemented in 2023 is the Pregnant Workers Fairness Act, and landmark piece of legislation that prohibits discrimination and ensures workplace accommodations related to pregnancy for workers. But what is the PWFA? Will it remain safe from dismantling during a Trump administration, while there is a crusade against reproductive rights and protections? So, joining me to discuss the history and the significance of the Pregnant Workers Fairness Act and what this means for women in the workforce. Is a very special guest. I’m joined by Dina Bakst. She is the co-founder and former co-president of A Better Balance, a national nonprofit legal advocacy organization that uses the power of the law to advance justice for workers. There is so much to unpack in this, including the people who have been directly impacted, the women who have been directly impacted by wanting to be treated fairly and the Pregnant Workers Fairness Act has done exactly that, protecting workers, women, workers in the workplace. 

So sit back and take a listen. Dina, it is such a pleasure to be with you. Thank you so much for joining. I want to start off this interview with thinking about the way in which we treat women in this country, and the way in which there has been a long time struggle towards equality in a variety of ways for women who are pregnant and experienced pregnancy, and now people were experiencing pregnancy. There was a bill that was introduced in 2012 as a standalone bill by Representative Jerry Nadler in New York, and it was introduced in the wake of a New York Times op-ed that you wrote, “Pregnant, and Pushed Out of a Job.” Take us back. That’s more than a decade ago, but take us back to why you wrote it, and then it became so impactful.

Dina Bakst: Thank you so much for having me. So back in 2010, 2011 I noticed in case law and through A Better Balance’s free legal clinic, that pregnant workers, particularly those in low-wage and physically demanding jobs, were facing terrible mistreatment at work and often losing their jobs and suffering devastating health and economic consequences due to a dangerous gap in federal civil rights protections. We heard from retail workers who were denied extra bathroom breaks and wound up with a UTI, a food service worker who was denied a water bottle on the job and wound up in the ER, a woman who was denied light duty and wound up homeless days before childbirth. And the reason this was happening, as I said, was a gap in civil rights protections due to structural limitations, both federal pregnancy discrimination and disability discrimination law so under the PDA, you know, a law that was intended to route out centuries of discrimination that’s been an important advancement for civil rights law, but it doesn’t provide an affirmative right to accommodations for pregnant workers. And what that meant was pregnant workers in low-wage and physically demanding jobs who needed immediate relief to protect their health and continue working were really out of luck. And we heard from women who were calling our helpline who wanted to know, can I follow my doctor’s orders and carry a water bottle on the retail floor or take extra bathroom breaks? And we couldn’t provide them clear answers, because the way the law was structured, and it was maddening, and because the case law also said there are no clear protections here, the PDA requires pregnant workers to find a comparator in the workplace in order to guarantee an accommodation, which is virtually impossible for women who need immediate relief, to find, to muster evidence of discrimination. So that framework wasn’t working, and under the Americans with Disabilities Act, which does guarantee accommodations protections for workers with disabilities, pregnant workers were often unprotected under the law. I mean, we heard from women with high risk pregnancies, women who had pregnancy-related bleeding, and courts found that they didn’t have conditions that rose to the level of a disability and therefore garnered protection. So it was outrageous to me at the time and I wrote an op-ed about it, just really laying out the problem, calling for a legislative fix. We were working on a New York bill with Senator Liz Krueger in New York at the time, and the response was overwhelming. I think it was a real wake-up call that as important as the Pregnancy Discrimination Act was to advancing, I’d say formal equality for pregnant workers, it was really leaving out the most vulnerable women and families in this country, and we needed the law to change.

Goodwin: Well, on that point, if I could just reflect back on that piece. It was published on January 30 in 2012 and you started so provocatively. It really touches the soul and is truly a punch in the gut for those that weren’t paying attention. You write, “few people realize that getting pregnant can mean losing your job. Imagine a woman who seven months into her pregnancy, is fired from her position as a cashier because she needed a few extra bathroom breaks. Or imagine another pregnant employee who was fired from her retail job after giving her supervisors a doctor’s note requesting she be allowed to refrain from heavy lifting and climbing ladders during the month and a half before her maternity leave.” And you say, “that’s what happened to Patricia Leahy. In 2008 a federal judge in Brooklyn ruled that her firing was fair because her employers were not obligated to accommodate her needs.” What a powerful opening to that op-ed. And in looking back, would you say that the actions then that were taken, such as the introduction of that 2012 stand-alone bill by Representative Jerry Nadler, and then what came after that, with the text of the bill inserted into the Senate’s Consolidated Appropriations Act of 2023 noticeably, that’s a decade later, which was then passed by Congress and signed into law by President Biden. Yes, that was quite the fight. 

Bakst: Yes, yes.

Goodwin: I mean, it seems so logical. I mean, when you reflect on the story of Patricia Leahy, how difficult then is that to understand, right, that a month and a half before delivery, that with a doctor’s note that someone should be in a position to keep her job when she requests refraining from lifting heavy materials and climbing ladders.

Bakst: Look, it was outrageous, and it was a grueling 10 year fight. We had some highs, we had hit roadblocks, but there was not a day that went by that women like Patricia Leahy or Amanda Legros or Natasha Jackson, women who were treated so terribly at work because they needed a simple accommodation to protect their health and continue working to be treated With a modicum of decency and respect in the workplace. And that really fueled me, personally. It kept me going because of just the profound mistreatment and the need for a legislative fix. And in 2012, I mean, I had no idea the road that we would be on, but we just kept going. We knew when the bill was introduced in Congress, it was super exciting to be a part of drafting a law and being there in May 2012 for Mother’s Day, when Congressman Nadler and also Congresswoman Maloney, you know, and others, were there to introduce the bill. But that’s not how laws get passed.

Goodwin: It’s a lot of behind the scenes work. So before we carry on with that thread, which is really important, I want to check in to ask you, if you don’t mind, personally, what was, because it strikes me that hearing these stories carries a lot of emotional weight itself. And of course, what they’ve endured is either put up or get out, put up with these demands or leave you know, as the judge said, you know, I don’t see this as being essentially unfair. So how did you navigate, then, trying to work through getting all of this done on a personal level, not just, on a professional level? 

Bakst: You know, just not taking no for an answer and understanding that we needed to use every tool in our toolbox to make the case to persuade legislators and the public that this was an important civil rights issue and a law that needed to be enacted.

Goodwin: Why do you think that the public has been so slow to get this? Or is it that the public does get it, but it’s been that lawmakers have failed to truly understand? One of the things that I’ve been thinking about is a failure to understand women’s citizenship, and that with women’s citizenship should come civil rights and civil liberties, that there should be a playing field that treats women with dignity and the integrity that they deserve, just as a matter of, you know, a human rights agenda as a matter of constitutionalism?

Bakst: Yeah, absolutely. I mean, I think at the time when actually we founded A Better Balance, my nonprofit in 2005, there was just a blindness to the needs of low-wage working mothers and even among reporters. I mean, there was a whole lot of conversation around the opt-out revolution, about professional workers choosing to leave their jobs, as opposed to being pushed out of work due to a discriminatory and lack of supportive work-family policies like paid leave. And so the public conversation, and the people that were reporting on it were largely focused on, you know, workers who didn’t face these really outrageous, you know, challenges and but were widespread. They just weren’t being reported on. And so I felt it was our obligation to bring those stories front and center. We represented, you know, countless women in court. Those cases were covered by prominent publications that litigation. Ray started to raise the bill of visibility of the issue, but really working tirelessly to center the voices and tell the public that this is a problem, you know. And frankly, there was complacency, you know, among some in the civil rights community, thinking that current law was sufficient, that the Pregnancy Discrimination Act just needed, you know, people just needed to better understand their rights under the Pregnancy Discrimination Act that the ADA really did solve the problem. We just needed to educate and do a better job in the courts on that law. But to my mind, no, that wasn’t the problem. That wasn’t it wasn’t enough. There was a structural limitation in the law. Pregnant Workers needed immediate relief, just like the way workers with disabilities in the workforce are entitled to under the Americans with Disabilities Act to protect their health and continue working. It’s a fun matter of fundamental fairness. It’s about equal opportunity. And I thought, hey, wait, if we’re already doing this for workers with disabilities, why can’t we also extend these protections to pregnant and postpartum workers so they too have a shot at fair treatment in the workplace and equality at, you know, equal opportunity. 

Goodwin: So, in building on that, the Pregnant Workers Fairness Act. That’s the title of the Act, otherwise known as the PWFA, and it’s been a crucial piece of legislation, as you note because other legislation simply wasn’t getting the job done. So, similar to the Americans with Disabilities Act, the Pregnant Workers Fairness Act, it 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. And there have been the challenges, though, to enforcement, or potentially there might be, and I wonder if you might speak to some of that. So, for example, many employers might remain unaware of the law’s requirements. And so what do you see as both the opportunities which seem quite obvious in coming forward, and what if any, do you see as challenges on the horizon?

Bakst: Sure, look, passing a law is vitally important, and was just thrilling after this decade-long fight, but we knew when this law went into effect that our work really, in some ways, was just beginning, because unless workers can understand their rights and feel that they can meaningfully enforce them, rights are meaningless, so ABB has been committed since the moment that PWFA went into effect in June 2023 of doing, first of all, creating educational materials to get the word out about the law, to representing pregnant and postpartum workers to direct our free legal helpline and ensuring that they can enforce their rights. What we began to see, which was absolutely thrilling, whereas before the law went into effect, you know, as I mentioned earlier, we couldn’t point to clear law. Now that we could arm pregnant workers with resources on the law. Most of the time, they found success just going to their employer and asserting their rights and getting the accommodation, whether it was a modified work schedule or, you know, a few hours off for a prenatal appointment or a lactation accommodation at work, and seeing the law work for workers. We (ABB) recently wrote a report, “Pregnant and Finally Protected,” really showcasing how the law was working in the first year it went into effect. So with that being said, you know, there’s still ongoing enforcement challenges, as you pointed out, you know, making sure that workers understand their rights, making sure that workers are fully protected and don’t face, you know, and are protected. There are ongoing, you know, currently, at this moment, challenges to the law, and we are fighting tooth and nail to ensure that the law remains intact, because a threat to the PWFA is not only horrible for millions of pregnant and postpartum workers in this country, to their health and to their economic security, but also to our democracy.

Goodwin: I’m glad that you mentioned that this is a matter of our democracy, because those threads aren’t often sewn and stitched together. It’s perceived sometimes that the concerns with regard to pregnancy, or concerns regarding abortion, or anywhere on the reproductive health rights and justice scale are just contained there, but they’re not really questions about our democracy, but they don’t really have much to do with constitutionalism, that They don’t have much to do with our societies. And I think that that is a misstep. I think it fails to take much into account. What’s the argument that you pose back to those that say, Well, this is a pregnant workers issue. It’s not really a matter about our democracy. How do you respond back to that?

Bakst: You know, the PWFA exemplifies the best of our nation’s democratic values. You know, it showed how sustained civic engagement and movement building, you know, can result in tangible change. You know, we had Congress responding to the needs of the American people. And you know, after a 10 year fight, we won bipartisan support for this landmark civil rights law. And you know, we also engaged a broad and diverse coalition of stakeholders to secure these protections. We worked state by state to win similar protections until Congress finally acted. You know, this is democracy at its best. Democracy thrives when individuals are empowered to exercise their rights in their community when it fosters participation and inclusivity and listens to the voices of the most marginalized communities in this country, and so you know, enforcing and defending this crucial bipartisan legislation, which is an embodiment of democracy at its best, must remain a top priority, priority for the civil rights community and All those are who are committed to, to democracy. It’s just so much more than you know, the rights of pregnant workers. I think it threatens, you know, other aspects of constitutional law, of protecting the rights of other workers. It’s a real slippery slope.

Goodwin: In that vein, we now have a different president than the one who signed the law into effect, Donald Trump is now in office, and there is concern that’s been expressed in publications, that it’s anticipated that aim will be taken at PWFA, either directly or indirectly, and potentially limit its application on January 21 of this year, President Trump fired two Democrat members of the EEOC and appointed Andrea Lucas as acting chair, who was appointed during his first term, and I’m quoting here, it’s expected that President Trump will replace these two members with commissioners who are aligned with his agenda. As it pertains to PWFA, Ms Lucas voted against the final rule, which signals that a Trump EEOC may drastically modify or rescind the final rule altogether. And there’s more that could be unpacked that that’s been analysis of this legislation, but I get the sense that you’re not done with the fight at all. So let me put this to you. There can be an assumption in light of all of this, and I suppose part of the articulation in an effort to try to justify this would be the assumption that women don’t work while pregnant, right? So if you have government officials who want to constrain the reach of the legislation, it seems to me that the argument that they might make is that it’s not necessary, and it’s not necessary because women don’t work while they’re pregnant, they’re at home taking care of themselves or at home taking care of their kids. Tell us, Dina, why that doesn’t make sense.

Bakst: Look, those are the types of biases that led to the introduction of the Pregnancy Discrimination Act. Right? Because we know that pregnant workers want and need to continue working to be able to support their families, and those biased assumptions are terribly dangerous, and their ability to be able to earn a paycheck and advance in the workplace. And so, you know, I agree. I think it sends a terrible message. I think it sends women back, as you said, to the home, and makes it all the more difficult for them to secure the basic, modest protections they need to be able to do their jobs and protect their health. 

Goodwin: I mean, it seems that it’s just suffering because if you’re low income, you’re going to work, you have no choice. And here’s the data that we know if, in fact, there are constraints that are placed on this legislation that you’ve fought so hard for in your organization, we know that nearly 3 million pregnant workers will be affected by this. We know in fact that three-quarters of pregnant women are black, nearly three-quarters of pregnant white women would be affected, more than two-thirds of pregnant Asian, American, Native, Hawaiian and Pacific Islander women would be affected by any kind of constraints on this legislation. We know that more than six in 10 pregnant Latina women would be negatively impacted by any kind of constraints on this legislation, and the list goes on from there. More than half of pregnant women with a disability would be affected by this, and this would only exacerbate the concerns of those who are already economically vulnerable. It’s staggering. So that’s a lot that we’ve shared on this. I’m wondering, how you think that the public can fight back before I turn to my final question, which we always like to end on a high note, and ask about a silver lining. And I think it’s so critically important at a time in which there are so many people who feel despondent. Quite frankly, I think just the legacy of your fight in this is a sign of hope. That op-ed triggering so much and your work along the way, because it’s not just what you wrote. It was the work that you were doing in the space of that and that you’ve continued to do has been a shining light. So before we get to that, what can people do? Do you think to make sure that this hard-earned legislation can continue to protect pregnant workers?

Bakst: Yeah, thank you so much. Look, I think that we all need to stay vigilant and in this fight, working to protect these long-fought-for protections, and making sure that first that workers know that these protections still exist. I think, with the conversation in the media about some threats to the law, the statute still stands, and we need to arm our friends and our neighbors and let people know that they have the support and the tools that they need to assert their rights during pregnancy, for pregnancy, childbirth and related conditions. It’s just super important, and with you know, the EEOC being gutted, it’s even more the important that we turn to one another to help get the word out and enforce the law, because the agency is, you know, less focused on doing that right now. And I just think also you talked about hope. I mean, I do think that the multiple strategies that we used over a 10 year fight to pass the Pregnant Worker Fairness Act, from centering workers to working state by state, to engaging, you know, unusual allies like the business community, to continually make the case to lawmakers and the public. I mean, this work, it can be tedious, it can be exhausting, but stay in the fight, because you can’t give up now. And you know, there were so many times I thought that we were done, but we just knew that we were on the right path and that we had to continue fighting, and that even when we were the very end, at the end of ‘22 when we thought the law wasn’t going to be passed because of political, you know, delays in the Senate. You know, we brought the most incredible women, these women who had fought with us for a decade, to Washington and set to refuse to take no for an answer, and I think we all need to take no for an answer and just stay in the fight and understand that it may take longer than we wish, but you know, change is possible.

Goodwin: It’s been such a pleasure, Dina, being with you. Thank you so much for your advocacy, for the important work that it is that you do, and for lifting the sails in the boat of pregnant workers throughout our country and serving as a model, and perhaps we’ve been learning from models elsewhere. Thank you so much.

Bakst: Thank you so much for having me.