Pregnant Workers Fairness Act

Floor Speech

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Mr. COHEN. 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:

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