I met Sarah Fleisch Fink last year when my firm worked with the National Partnership for Women & Families on an amicus brief in support of Peggy Young, a worker challenging pregnancy discrimination before the U.S. Supreme Court in Young v. UPS. Sarah, senior policy counsel for workplace programs at the National Partnership, works on issues relating to paid family and medical leave, paid sick days, fair pay, and pregnancy discrimination. I was excited that Sarah agreed to be a panelist for a Women’s Bar Association program on pregnancy discrimination. For more information on the March 15 panel, including how to register, click here.
Kate
Can you talk about the efforts of the National Partnership for Women & Families in fighting pregnancy discrimination?
Sarah
The National Partnership played a lead role in the passage of the Pregnancy Discrimination Act, or PDA, nearly 40 years ago. The PDA amended Title VII of the Civil Rights Act of 1964 to protect employees from discrimination based on pregnancy, childbirth or pregnancy-related conditions. Since the PDA’s passage, we have continued to promote its enforcement and to advocate for stronger protections for pregnant workers. For example, as you know, we submitted an amicus brief in the U.S. Supreme Court case on pregnancy discrimination, Young v. UPS, in 2014.
We also co-lead a national coalition that supports the Pregnant Workers Fairness Act, proposed federal legislation that, if passed, would create a clear standard for workers and employers that ensures the same workplace protections for women with pregnancy-related limitations as the protections already in place for workers with similar limitations. The bill would prevent employers from forcing pregnant women out of the workplace and help ensure that employers provide reasonable accommodations to pregnant women who want to continue working. We work with advocates and legislators on similar laws at the state level.
Kate
In an interview with Professor Naomi Schoenbaum I posted last year, prior to the Supreme Court’s decision in Young, we learned that similar laws had been enacted in twelve states. Today, sixteen states, the District of Columbia, and four cities have passed laws requiring some employers to provide reasonable accommodations to pregnant workers. Can you talk about why laws requiring reasonable accommodations are necessary, particularly in light of the Supreme Court’s decision in Young that UPS had to give pregnant workers the accommodations the company gave to other employees?
Sarah
The Young decision tells employers that if they are accommodating most non-pregnant workers who have injuries or disabilities, while refusing to accommodate most pregnant workers, they are likely violating the Pregnancy Discrimination Act.
However, individual pregnant workers may still face uncertainty about their rights based on the specific contexts of their workplaces. For example, if an employer does not accommodate a certain percentage of non-pregnant workers, pregnant workers may not be entitled to the same accommodations. Additionally, it is often difficult for women in smaller workplaces, those who are new to a job, or those with little bargaining power to know what percentage of their co-workers are being accommodated or what their employers’ specific accommodation policies are. These pregnant women could face significant challenges under the Young decision and need additional protections.
In short, the Young decision leaves some questions unanswered, and the need for clarity makes the case for the type of protections and clear standards the Pregnant Workers Fairness Act and similar state laws would establish.
Kate
Short of enacting the Pregnant Workers Fairness Act, what more needs to be done to ensure workplace fairness for pregnant workers? In other words, how can we ensure greater compliance with the laws that we already have?
Sarah
The U.S. Equal Employment Opportunity Commission, or EEOC, must continue to educate employers and employees about the rights and protections included in the Pregnancy Discrimination Act and to strongly enforce the law. The EEOC’s enforcement guidance on pregnancy discrimination and related issues published last year is key to this education and enforcement, as is the agency’s guidance on workers with caregiving responsibilities.
The EEOC’s pregnancy guidance specifically addresses the interaction between the Pregnancy Discrimination Act and the 2008 amendments to the Americans with Disabilities Act, which broadened the definition of a covered disability or impairment, as well as requirements affecting pregnant workers under other laws, including the Family and Medical Leave Act, which guarantees job-protected, unpaid leave.
Kate
I reviewed your comments to U.S. News and World Report on how to tell your boss that you’re pregnant, and particularly the importance of knowing your rights and benefits under the law. I think our readers would be interested in hearing additional advice you may have on this, including recommendations and pitfalls to avoid.
Sarah
Every conversation in which an employee tells her boss she is pregnant is different and depends, in part, on that employee’s relationship with her boss and how formal or familiar it is, as well as the type of workplace. In all cases, I think it is important for an employee to be prepared for the conversation, to know her rights under the law and any policies her employer has in place, and to be direct.
Specifically, employees should know that:
- if they work for an employer with 15 or more employees, they cannot be discriminated against for being pregnant under the PDA;
- they may have rights to reasonable accommodations for pregnancy-related limitations under the PDA or the Americans with Disabilities Act; and
- if they work for a covered employer (generally, a private sector employer with 50 or more employees within 75 miles, or a public sector employer) and are eligible (generally, have worked for that employer for at least 12 months and have worked at least 1,250 hours during the 12-month period prior to when leave would start), they are entitled to up to 12 weeks of unpaid leave under the Family and Medical Leave Act, or FMLA.
Laws in some states provide greater protections than the FMLA by covering more workers, offering more time, or providing paid leave. Several state and local laws also guarantee workers access to pregnancy disability leave, to guarantee time off to prepare for and recover physically from giving birth, or to paid sick days, which in some circumstances can be used for the birth of a new child. Employees should also consult their employers’ specific leave policies.
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For more information on the National Partnership for Women & Families and its workplace fairness efforts, click here.
For more information on Sarah’s upcoming panel discussion with the Women’s Bar Association, click here.
