In 1978, Congress passed the Pregnancy Discrimination Act to protect pregnant women in the workplace by making it illegal to fire them because they are pregnant.  Still, it is shocking to see how women continue to face .blatant discrimination at work.  In September, Bayou City Wings, a Texas-based restaurant chain fired eight employees because they got pregnant.  In fact, the employee handbook specifically instructed managers to fire pregnant employees three months into their pregnancy.  The Pregnancy Discrimination Act explicitly prohibits this type of discrimination and yet it continues to exist, more than thirty years after the Act was passed.

The still more prevalent situation for pregnant women at work is much more subtle and “legal,” at least as far as the Pregnancy Discrimination Act implies. In these cases, pregnancy is not the sole reason why women are fired; rather, they are fired for certain additional requests or small limitations on their ability to work because of their pregnancy. In fact, this form of discrimination is on the rise.  In 2011, the EEOC received 5,797 charges of pregnancy discrimination, up from 4,120 in 2000.  Many low-wage women face this increasingly common pattern of discrimination in which termination is based on unfounded assumptions that pregnant women cannot do their jobs well, rather than on medical need.  Summarized in a report compiled by the National Women’s Law Center, these situations begin to show a systemic problem in the United States when employers face pregnant employees.

For example, in one appalling situation a pregnant worker in Washington, D.C. was denied bathroom and water breaks.  Her supervisor berated her publicly because she was taking more frequent bathroom breaks and he ordered her – but no one else – to get consent from the other employees before she used the bathroom.  He also refused to let her take snack breaks during her four-hour shifts, also refusing her access to water.  At one point, she requested advance permission to leave early for a prenatal appointment but got no response from her supervisor.  Right before she left for the appointment, her supervisor refused to let her go, firing her when she did.

It is clear that the Pregnancy Discrimination Act is not enough to protect pregnant women at work.  Pregnant women are beginning to work much longer into their pregnancies, and they need protection from unlawful or unreasonable termination.  Compounding this problem is the fact that women often need their jobs to support their new children.  Often, that is the reason women are working longer – because they need the money.  When they are fired, they are not only drained of the few resources that they have before the baby, but they are forced into a situation where they have to perform a time-consuming job search while trying to care for their newborns.

In September, Senators Bob Casey and Jeanne Shaheen introduced the Pregnant Workers Fairness Act (PWFA) to combat the problem of subtle discrimination against pregnant women in the workplace.  The Act aims to equate pregnancy with a disability so that employers are required to make reasonable accommodations for pregnant employees.  Modeled after the ADA, the Act would prevent employers from placing women on unpaid leave, firing them, or forcing them to quit when they employers deny them accommodations.  This would also mean that employers must honor medical restrictions put in place by doctors.  The Act would allow women the ability to contribute to a productive economy and to provide for their families, while maintaining their good health during pregnancy.

Unfortunately, the bill faces a lot of opposition in both the Senate and the House.  In fact, the Act only has about a 24% chance of passage. In fact, the House has consistently opposed similar bills, including the Paycheck Fairness Act, which would have addressed discrepancies in pay between men and women.

The PWFA should be passed because pregnant women need the protection that it would afford.  However, the Act needs to clarify guidelines for implementation.  “Reasonable accommodations” would have to be defined to exclude the necessity for employers to completely alter the job description in order to accommodate pregnant women.  However, it would also need to ensure that the women could keep their jobs if they are unable to complete unessential tasks, like climbing a ladder.

It might be easy to discern which types of tasks are not integral in a given employment context and which types of tasks form the very essence of the job.  However, such distinctions would not be so clear the middle of the spectrum.  For example, what would the Act require in a situation in which a woman is unable to lift over twenty pounds in a job which deals primarily with lifting boxes?  Of course, she is still able to lift boxes under that weight, but her employer hired her because she was able to lift ALL the boxes.  The Act will probably require some sort of individual assessments, and it could provide a slight extra burden to employers.  However, it will not cause the excessive burden that members of the House are worried about, just as the ADA does not cause an excessive burden as it relates to employees with disabilities.  Further, if passed, the PWFA would finally be a step in the right direction towards actually achieving a workplace free from discrimination.