In May 2012, Democrats in the House of Representatives introduced the Pregnant Workers Fairness Act (PWFA). The bill would guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of a particular job, as long as the accommodation does not impose an undue hardship on the employer. This chapter examines the ways in which courts have unjustifiably narrowed protection under existing statutes and the realities of the situations of pregnant women at work that make existing interpretations of the law insufficient.

UNDERSTANDING PREGNANCY DISCRIMINATION RIGHTS IN PRACTICE

The most significant impact of the Pregnancy Discrimination Act (PDA) of 1978, at least initially, was to invalidate widespread formal policies that told pregnant women when they could and could not work, and in which sorts of jobs. The PDA forced employers to shift to a more individualized model under which pregnant women could not be fired, not hired, or otherwise disadvantaged just for being pregnant. Decisions about employment now had to be made based on capacity to work, rather than pregnancy status.

The second and important impact of the PDA was to force changes to standard employer benefit and leave policies, many of which excluded pregnancy altogether. Under the second clause of the act, employers must treat pregnant employees at least as well as they treat other temporarily disabled workers. Employers thus must, for example, provide paid or unpaid leave to pregnant women who medically require it if they would do so for something who needed it because of some other temporary disability.

In practice, the PDA protects some pregnant women, some of the time, as follows:

1. • For a pregnant woman who can work at full capacity – that is, she has no physical effects that interfere with her job responsibilities – the PDA can be effective in protecting her against the stereotypes and animus her employer might harbor about pregnant women generally. If a pregnant woman is able to perform all aspects of her job, she cannot be assumed to have limitations that, in fact, she does not have, nor can she be denied the opportunity to work just because she is pregnant.