Pregnant Workers Fairness Act — Rept. 116-494, Part 1 (House of Representatives, 116th Congress, September 8, 2020)
Summary
Report 116-494, Part 1, dated September 8, 2020, is the Committee on Education and Labor report on the Pregnant Workers Fairness Act, submitted by Scott of Virginia with minority views. The committee reports the bill favorably with an amendment. The amendment makes it an unlawful employment practice for a covered entity not to make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless the entity can demonstrate an undue hardship. The Equal Employment Opportunity Commission is to issue regulations not later than 2 years after enactment. The minority views, signed by Virginia Foxx as Ranking Member, state that the omission of a protection for religious organizations must be addressed.
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“Pregnant Workers Fairness Act — Rept. 116-494, Part 1 (House of Representatives, 116th Congress, September 8, 2020).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crpt-crpt-116hrpt494-crpt-116hrpt494-pt1/
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116TH CONGRESS REPT. 116–494
" HOUSE OF REPRESENTATIVES !
2d Session Part 1
PREGNANT WORKERS FAIRNESS ACT
SEPTEMBER 8, 2020.—Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. SCOTT of Virginia, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2694]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 2694) to eliminate discrimination and promote wom-
en’s health and economic security by ensuring reasonable work-
place accommodations for workers whose ability to perform the
functions of a job are limited by pregnancy, childbirth, or a related
medical condition, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
Purpose and Summary ............................................................................................ 5
Committee Action .................................................................................................... 7
Committee Views ..................................................................................................... 11
Section-by-Section Analysis .................................................................................... 32
Explanation of Amendments ................................................................................... 35
Application of Law to the Legislative Branch ....................................................... 35
Unfunded Mandate Statement ............................................................................... 35
Earmark Statement ................................................................................................. 35
Roll Call Votes ......................................................................................................... 35
Statement of Performance Goals and Objectives .................................................. 38
Duplication of Federal Programs ............................................................................ 38
Hearings ................................................................................................................... 38
Statement of Oversight Findings and Recommendations of the Committee ...... 38
New Budget Authority and CBO Cost Estimate ................................................... 38
Committee Cost Estimate ....................................................................................... 39
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99–006
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Changes in Existing Law Made by the Bill, as Reported ..................................... 39
Committee Correspondence .................................................................................... 40
Minority Views ......................................................................................................... 49
The amendment is as follows:
Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Pregnant Workers Fairness Act’’.
SEC. 2. NONDISCRIMINATION WITH REGARD TO REASONABLE ACCOMMODATIONS RELATED
TO PREGNANCY.
It shall be an unlawful employment practice for a covered entity to—
(1) not make reasonable accommodations to the known limitations related to
the pregnancy, childbirth, or related medical conditions of a qualified employee,
unless such covered entity can demonstrate that the accommodation would im-
pose an undue hardship on the operation of the business of such covered entity;
(2) require a qualified employee affected by pregnancy, childbirth, or related
medical conditions to accept an accommodation other than any reasonable ac-
commodation arrived at through the interactive process referred to in section
5(7);
(3) deny employment opportunities to a qualified employee if such denial is
based on the need of the covered entity to make reasonable accommodations to
the known limitations related to the pregnancy, childbirth, or related medical
conditions of a qualified employee;
(4) require a qualified employee to take leave, whether paid or unpaid, if an-
other reasonable accommodation can be provided to the known limitations re-
lated to the pregnancy, childbirth, or related medical conditions of a qualified
employee; or
(5) take adverse action in terms, conditions, or privileges of employment
against a qualified employee on account of the employee requesting or using a
reasonable accommodation to the known limitations related to the pregnancy,
childbirth, or related medical conditions of the employee.
SEC. 3. REMEDIES AND ENFORCEMENT.
(a) EMPLOYEES COVERED BY TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.—
(1) IN GENERAL.—The powers, remedies, and procedures provided in sections
705, 706, 707, 709, 710, and 711 of the Civil Rights Act of 1964 (42 U.S.C.
2000e–4 et seq.) to the Commission, the Attorney General, or any person alleg-
ing a violation of title VII of such Act (42 U.S.C. 2000e et seq.) shall be the
powers, remedies, and procedures this Act provides to the Commission, the At-
torney General, or any person, respectively, alleging an unlawful employment
practice in violation of this Act against an employee described in section 5(3)(A)
except as provided in paragraphs (2) and (3) of this subsection.
(2) COSTS AND FEES.—The powers, remedies, and procedures provided in sub-
sections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall
be the powers, remedies, and procedures this Act provides to the Commission,
the Attorney General, or any person alleging such practice.
(3) DAMAGES.—The powers, remedies, and procedures provided in section
1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations con-
tained in subsection (b)(3) of such section 1977A, shall be the powers, remedies,
and procedures this Act provides to the Commission, the Attorney General, or
any person alleging such practice (not an employment practice specifically ex-
cluded from coverage under section 1977A(a)(1) of the Revised Statutes).
(b) EMPLOYEES COVERED BY CONGRESSIONAL ACCOUNTABILITY ACT OF 1995.—
(1) IN GENERAL.—The powers, remedies, and procedures provided in the Con-
gressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.) to the Board (as
defined in section 101 of such Act (2 U.S.C. 1301)) or any person alleging a vio-
lation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)) shall be the powers,
remedies, and procedures this Act provides to the Board or any person, respec-
tively, alleging an unlawful employment practice in violation of this Act against
an employee described in section 5(3)(B), except as provided in paragraphs (2)
and (3) of this subsection.
(2) COSTS AND FEES.—The powers, remedies, and procedures provided in sub-
sections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall
be the powers, remedies, and procedures this Act provides to the Board or any
person alleging such practice.
(3) DAMAGES.—The powers, remedies, and procedures provided in section
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1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations con-
tained in subsection (b)(3) of such section 1977A, shall be the powers, remedies,
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3
and procedures this Act provides to the Board or any person alleging such prac-
tice (not an employment practice specifically excluded from coverage under sec-
tion 1977A(a)(1) of the Revised Statutes).
(4) OTHER APPLICABLE PROVISIONS.—With respect to a claim alleging a prac-
tice described in paragraph (1), title III of the Congressional Accountability Act
of 1995 (2 U.S.C. 1381 et seq.) shall apply in the same manner as such title
applies with respect to a claim alleging a violation of section 201(a)(1) of such
Act (2 U.S.C. 1311(a)(1)).
(c) EMPLOYEES COVERED BY CHAPTER 5 OF TITLE 3, UNITED STATES CODE.—
(1) IN GENERAL.—The powers, remedies, and procedures provided in chapter
5 of title 3, United States Code, to the President, the Commission, the Merit
Systems Protection Board, or any person alleging a violation of section 411(a)(1)
of such title shall be the powers, remedies, and procedures this Act provides to
the President, the Commission, the Board, or any person, respectively, alleging
an unlawful employment practice in violation of this Act against an employee
described in section 5(3)(C), except as provided in paragraphs (2) and (3) of this
subsection.
(2) COSTS AND FEES.—The powers, remedies, and procedures provided in sub-
sections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall
be the powers, remedies, and procedures this Act provides to the President, the
Commission, the Board, or any person alleging such practice.
(3) DAMAGES.—The powers, remedies, and procedures provided in section
1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations con-
tained in subsection (b)(3) of such section 1977A, shall be the powers, remedies,
and procedures this Act provides to the President, the Commission, the Board,
or any person alleging such practice (not an employment practice specifically ex-
cluded from coverage under section 1977A(a)(1) of the Revised Statutes).
(d) EMPLOYEES COVERED BY GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991.—
(1) IN GENERAL.—The powers, remedies, and procedures provided in sections
302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–
16b; 2000e–16c) to the Commission or any person alleging a violation of section
302(a)(1) of such Act (42 U.S.C. 2000e–16b(a)(1)) shall be the powers, remedies,
and procedures this Act provides to the Commission or any person, respectively,
alleging an unlawful employment practice in violation of this Act against an em-
ployee described in section 5(3)(D), except as provided in paragraphs (2) and (3)
of this subsection.
(2) COSTS AND FEES.—The powers, remedies, and procedures provided in sub-
sections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall
be the powers, remedies, and procedures this Act provides to the Commission
or any person alleging such practice.
(3) DAMAGES.—The powers, remedies, and procedures provided in section
1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations con-
tained in subsection (b)(3) of such section 1977A, shall be the powers, remedies,
and procedures this Act provides to the Commission or any person alleging such
practice (not an employment practice specifically excluded from coverage under
section 1977A(a)(1) of the Revised Statutes).
(e) EMPLOYEES COVERED BY SECTION 717 OF THE CIVIL RIGHTS ACT OF 1964.—
(1) IN GENERAL.—The powers, remedies, and procedures provided in section
717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16) to the Commission,
the Attorney General, the Librarian of Congress, or any person alleging a viola-
tion of that section shall be the powers, remedies, and procedures this Act pro-
vides to the Commission, the Attorney General, the Librarian of Congress, or
any person, respectively, alleging an unlawful employment practice in violation
of this Act against an employee described in section 5(3)(E), except as provided
in paragraphs (2) and (3) of this subsection.
(2) COSTS AND FEES.—The powers, remedies, and procedures provided in sub-
sections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall
be the powers, remedies, and procedures this Act provides to the Commission,
the Attorney General, the Librarian of Congress, or any person alleging such
practice.
(3) DAMAGES.—The powers, remedies, and procedures provided in section
1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations con-
tained in subsection (b)(3) of such section 1977A, shall be the powers, remedies,
and procedures this Act provides to the Commission, the Attorney General, the
Librarian of Congress, or any person alleging such practice (not an employment
practice specifically excluded from coverage under section 1977A(a)(1) of the Re-
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vised Statutes).
(f) PROHIBITION AGAINST RETALIATION.—
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(1) IN GENERAL.—No person shall discriminate against any employee because
such employee has opposed any act or practice made unlawful by this Act or
because such employee made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this Act.
(2) PROHIBITION AGAINST COERCION.—It shall be unlawful to coerce, intimi-
date, threaten, or interfere with any individual in the exercise or enjoyment of,
or on account of such individual having exercised or enjoyed, or on account of
such individual having aided or encouraged any other individual in the exercise
or enjoyment of, any right granted or protected by this Act.
(3) REMEDY.—The remedies and procedures otherwise provided for under this
section shall be available to aggrieved individuals with respect to violations of
this subsection.
(g) LIMITATION.—Notwithstanding subsections (a)(3), (b)(3), (c)(3), (d)(3), and
(e)(3), if an unlawful employment practice involves the provision of a reasonable ac-
commodation pursuant to this Act or regulations implementing this Act, damages
may not be awarded under section 1977A of the Revised Statutes (42 U.S.C. 1981a)
if the covered entity demonstrates good faith efforts, in consultation with the em-
ployee with known limitations related to pregnancy, childbirth, or related medical
conditions who has informed the covered entity that accommodation is needed, to
identify and make a reasonable accommodation that would provide such employee
with an equally effective opportunity and would not cause an undue hardship on
the operation of the covered entity.
SEC. 4. RULEMAKING.
Not later than 2 years after the date of enactment of this Act, the Commission
shall issue regulations in an accessible format in accordance with subchapter II of
chapter 5 of title 5, United States Code, to carry out this Act. Such regulations shall
provide examples of reasonable accommodations addressing known limitations re-
lated to pregnancy, childbirth, or related medical conditions.
SEC. 5. DEFINITIONS.
As used in this Act—
(1) the term ‘‘Commission’’ means the Equal Employment Opportunity Com-
mission;
(2) the term ‘‘covered entity’’—
(A) has the meaning given the term ‘‘respondent’’ in section 701(n) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e(n)); and
(B) includes—
(i) an employer, which means a person engaged in industry affecting
commerce who has 15 or more employees as defined in section 701(b)
of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e(b));
(ii) an employing office, as defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301) and section 411(c) of title 3,
United States Code;
(iii) an entity employing a State employee described in section 304(a)
of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–
16c(a)); and
(iv) an entity to which section 717(a) of the Civil Rights Act of 1964
(42 U.S.C. 2000e–16(a)) applies;
(3) the term ‘‘employee’’ means—
(A) an employee (including an applicant), as defined in section 701(f) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e(f));
(B) a covered employee (including an applicant), as defined in section 101
of the Congressional Accountability Act of 1995 (2 U.S.C. 1301);
(C) a covered employee (including an applicant), as defined in section
411(c) of title 3, United States Code;
(D) a State employee (including an applicant) described in section 304(a)
of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a));
or
(E) an employee (including an applicant) to which section 717(a) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e–16(a)) applies;
(4) the term ‘‘person’’ has the meaning given such term in section 701(a) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e(a));
(5) the term ‘‘known limitation’’ means physical or mental condition related
to, affected by, or arising out of pregnancy, childbirth, or related medical condi-
tions that the employee or employee’s representative has communicated to the
employer whether or not such condition meets the definition of disability speci-
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fied in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12102);
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(6) the term ‘‘qualified employee’’ means an employee or applicant who, with
or without reasonable accommodation, can perform the essential functions of
the employment position, except that an employee or applicant shall be consid-
ered qualified if—
(A) any inability to perform an essential function is for a temporary pe-
riod;
(B) the essential function could be performed in the near future; and
(C) the inability to perform the essential function can be reasonably ac-
commodated; and
(7) the terms ‘‘reasonable accommodation’’ and ‘‘undue hardship’’ have the
meanings given such terms in section 101 of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12111) and shall be construed as such terms are con-
strued under such Act and as set forth in the regulations required by this Act,
including with regard to the interactive process that will typically be used to
determine an appropriate reasonable accommodation.
SEC. 6. WAIVER OF STATE IMMUNITY.
A State shall not be immune under the 11th Amendment to the Constitution from
an action in a Federal or State court of competent jurisdiction for a violation of this
Act. In any action against a State for a violation of this Act, remedies (including
remedies both at law and in equity) are available for such a violation to the same
extent as such remedies are available for such a violation in an action against any
public or private entity other than a State.
SEC. 7. RELATIONSHIP TO OTHER LAWS.
Nothing in this Act shall be construed to invalidate or limit the powers, remedies,
and procedures under any Federal law or law of any State or political subdivision
of any State or jurisdiction that provides greater or equal protection for individuals
affected by pregnancy, childbirth, or related medical conditions.
SEC. 8. SEVERABILITY.
If any provision of this Act or the application of that provision to particular per-
sons or circumstances is held invalid or found to be unconstitutional, the remainder
of this Act and the application of that provision to other persons or circumstances
shall not be affected.
PURPOSE AND SUMMARY
When Congress passed the Pregnancy Discrimination Act of
1978,1 which amended Title VII of the Civil Rights Act of 1964,2
its objective was to eradicate pregnancy discrimination in the work-
place and ensure that pregnant workers were treated the same as
their coworkers. Yet nearly 42 years after its passage, federal law
still falls short of guaranteeing that all pregnant workers have rea-
sonable workplace accommodations. H.R. 2694, the Pregnant Work-
ers Fairness Act, ensures that pregnant workers who work for em-
ployers with 15 or more employees have access to reasonable ac-
commodations in the workplace for pregnancy, childbirth, and re-
lated medical conditions. When pregnant workers do not have ac-
cess to reasonable workplace accommodations, they are often forced
to choose between their financial security and a healthy pregnancy.
Ensuring that pregnant workers have access to reasonable accom-
modations will promote the economic well-being of working moth-
ers and their families and promote healthy pregnancies.
H.R. 2694, as amended in markup, has been endorsed by 1,000
Days, 9to5, 9to5 California, 9to5 Colorado, 9to5 Georgia, 9to5 Wis-
consin, A Better Balance, Adobe, Advocates for Youth, African
American Ministers In Action, Alianza Nacional de Campesinas,
All-Options, Amalgamated Bank, American Association of Univer-
sity Women (AAUW), American Civil Liberties Union (ACLU),
American Federation of Labor and Congress of Industrial Organi-
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1 42 U.S.C. § 2000e(k).
2 42 U.S.C. § 2000e.
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6
zations (AFL–CIO), American Federation of State, County, and Mu-
nicipal Employees (AFSCME), American Federation of Teachers
(AFT), Asian Pacific American Labor Alliance, Association of Ma-
ternal & Child Health Programs, Association of Women’s Health,
Obstetric and Neonatal Nurses, Breastfeeding Mother, Building
Pathways, California Breastfeeding Coalition, California Women’s
Law Center, California Work & Family Coalition, Casa de
Esperanza: National Latin@ Network for Healthy Families and
Communities, Center for Parental Leave Leadership, Center for
Public Policy Priorities, Center for Reproductive Rights, Centro de
Trabajadores Unidos (United Workers Center), U.S. Chamber of
Commerce, Child Care Law Center, Chinese Progressive Associa-
tion (San Francisco), Church World Service, Citizen Action of NY,
Center for Law and Social Policy (CLASP), Clearinghouse on Wom-
en’s Issues, Closing the Women’s Health Gap, Coalition on Human
Needs, Coalition of Labor Union Women, Coalition of Labor Union
Women Philadelphia Chapter, Communication Workers of America
(CWA), Congregation of Our Lady of the Good Shepherd, U.S. Prov-
inces, DC Jobs with Justice, Disciples Center for Public Witness,
Economic Policy Institute, EMC Strategies, Equal Pay Today,
Equal Rights Advocates, Family Equality, Family Values @ Work,
Farmworker Justice, Feminist Majority Foundation, Friends Com-
mittee on National Legislation, Futures Without Violence, Gender
Justice, Hadassah, Healthy Work Campaign, Center for Social Epi-
demiology, ICM Partners, In Our Own Voice: National Black Wom-
en’s Reproductive Justice Agenda, Indiana AFL–CIO, Indiana
Chapter of Unite Here Local 23, Indiana Institute for Working
Families, Interfaith Worker Justice, Jewish Women International,
Jobs With Justice, Justice for Migrant Women, Kansas
Breastfeeding Coalition, Inc., Kentucky Equal Justice Center,
KWH Law Center for Social Justice and Change, Labor Council for
Latin American Advancement (LCLAA), Labor Project, Leadership
Conference for Civil and Human Rights (LCCHR), Legal Aid at
Work, Legal Momentum, L’Oreal USA, Legal Voice, Levi Strauss &
Co, Main Street Alliance, Maine Women’s Lobby, Make the Road
New York, MANA, A National Latina Organization, March of
Dimes, Massachusetts Coalition for Occupational Safety & Health,
Metro-Detroit Chapter of the Coalition of Labor Union Women
(CLUW), Michigan Immigrant Rights Center, Microsoft Corpora-
tion, MomsRising, MS Black Women’s Roundtable, Mujeres Unidas
y Activas, NARAL Pro-Choice America, NARAL Pro-Choice Colo-
rado, National Advocacy Center of the Sisters of the Good Shep-
herd, National Advocates for Pregnant Women, National Asian Pa-
cific American Women’s Forum (NAPAWF), National Association
for the Advancement of Colored People (NAACP), National Center
for Lesbian Rights, National Center for Transgender Equality, Na-
tional Consumers League, National Council for Occupational Safety
and Health (COSH), National Council of Jewish Women, National
Council of Jewish Women California, National Domestic Workers
Alliance, National Education Association (NEA), National Employ-
ment Law Project (NELP), National Employment Lawyers Associa-
tion, National Immigration Law Center, National Network to End
Domestic Violence, National Organization for Women, National Re-
source Center on Domestic Violence, National Partnership for
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Women & Families, National WIC Association, NC National Orga-
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7
nization for Women (NC NOW), Nebraska Appleseed, NETWORK
Lobby for Catholic Social Justice, New Working Majority, NJ Cit-
izen Action; NJ Time to Care Coalition, North Carolina Justice
Center, Oxfam America, PA NOW, Parent Voices CA, PathWays
PA, PhilaPOSH, Prevent Child Abuse NC, Physicians for Reproduc-
tive Health, Poligon Education Fund, PowHer New York, Pride at
Work, Public Citizen, Quetzal, Restaurant Opportunities Centers
United, RESULTS, RI CLUW, San Francisco CLUW Chapter, Serv-
ice Employees International Union, SEIU 32BJ, Sexuality Informa-
tion and Education Council of the United States (SIECUS), Shriver
Center on Poverty Law, Silver in the City, Society for Human Re-
source Management (SHRM), Southern CA Coalition for Occupa-
tional Safety & Health, Southwest Pennsylvania National Organi-
zation for Women, Southwest Women’s Law Center, Spotify, TASH,
Technology Concepts Group International, LLC, The Greenlining
Institute, The Leadership Conference on Civil and Human Rights,
The Ohio Women’s Public Policy Network, The Women’s Zionist Or-
ganization of America, Inc., The Zonta Club of Greater Queens,
TIME’S UP Now, United Food and Commercial Workers Inter-
national Union (UFCW), Ujima Inc: The National Center on Vio-
lence Against Women in the Black Community, UltraViolet,
UnidosUS, Union for Reform Judaism, United Electrical, Radio and
Machine Workers of America, United Food and Commercial Work-
ers International Union (UFCW), United for Respect, United State
of Women, United States Breastfeeding Committee, U.S. Women’s
Chamber of Commerce, United Steelworkers, United Way of Ken-
tucky, University of Illinois at Chicago, School of Public Health, Di-
vision of Environmental &, Occupational Health Sciences, Vision y
Compromiso, Voices for Children in Nebraska, Voices for Progress,
Warehouse Worker Resource Center, Western Center on Law and
Poverty, William E. Morris Institute for Justice Arizona,
Women4Change, Women’s Achievement Network and Development
Alliance, Women & Girls Foundation, Women Employed, Women of
Reform Judaism, Women’s Center for Education and Career Ad-
vancement, Women’s Employment Rights Clinic Golden Gate Uni-
versity, Women’s Foundation of California, Women’s Fund of Rhode
Island, Women’s Law Project, Women’s March, Women’s Rights
and Empowerment Network, The Women’s Legal Defense and Edu-
cation Fund, Work Equity, Workers’ Center of Central New York,
Worker Justice Center of New York, Worksafe, Workplace Fair-
ness, YWCA Mahoning Valley, YWCA McLean County, YWCA New
Hampshire, YWCA Northwestern Illinois, YWCA USA, and ZERO
TO THREE.
COMMITTEE ACTION
112TH CONGRESS
On May 8, 2012, Representative Jerrold Nadler (D–NY–10) intro-
duced H.R. 5647, the Pregnant Workers Fairness Act. The bill had
112 Democratic cosponsors. The bill required employers to make
reasonable accommodations for the known limitations related to
pregnancy, childbirth, or related medical conditions, unless the ac-
commodation imposed an undue hardship on the business. The bill
also made it unlawful for employers to deny employment opportu-
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nities based on the need for reasonable accommodations; require
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employees to accept an accommodation they did not choose; and re-
quire employees to take leave if another accommodation could be
provided. The bill was referred to the House Committees on Edu-
cation and the Workforce, Administration, Oversight and Govern-
ment Reform, and Judiciary. Subsequently, the Committee on Edu-
cation and the Workforce referred the bill to the Subcommittee on
Health, Employment, Labor, and Pensions. The Judiciary Com-
mittee referred the bill to the Subcommittee on the Constitution.
No further action was taken on the bill.
On September 19, 2012, Senator Robert P. Casey, Jr. (D–PA) in-
troduced S. 3565, the Pregnant Workers Fairness Act, as a com-
panion bill to H.R. 5647. The bill had nine cosponsors: eight Demo-
crats and one Independent. The bill was referred to the Senate
Committee on Health, Education, Labor, and Pensions. No further
action was taken on the bill.
113TH CONGRESS
On May 14, 2013, Representative Nadler introduced H.R. 1975,
the Pregnant Workers Fairness Act. This bill was identical to the
version introduced in the 112th Congress and had 142 Democratic
cosponsors. The bill was referred to the House Committees on Edu-
cation and the Workforce, Administration, Oversight and Govern-
ment Reform, and Judiciary. Subsequently, the Committee on Edu-
cation and the Workforce referred the bill to the Subcommittee on
Workforce Protections, and the Judiciary Committee referred the
bill to the Subcommittee on the Constitution and Civil Justice. No
further action was taken on the bill.
On the same day, Senator Casey introduced an identical com-
panion bill in the Senate: S. 942, the Pregnant Workers Fairness
Act. It had 33 cosponsors: 32 Democrats and one Independent. The
bill was referred to the Committee on Health, Education, Labor,
and Pensions. No further action was taken on the bill.
114TH CONGRESS
On June 4, 2015, Representative Nadler introduced H.R. 2654,
the Pregnant Workers Fairness Act. The bill had 149 sponsors: 146
Democrats and three Republicans. This version of the bill had the
same four protections as the previously introduced bills, but also
added a provision protecting workers from retaliation for request-
ing or using reasonable accommodations. The bill was referred to
the House Committees on Education and the Workforce, Adminis-
tration, Oversight and Government Reform, and Judiciary. The
Committee on Education and the Workforce referred the bill to the
Subcommittee on Workforce Protections, and the Judiciary Com-
mittee referred the bill to the Subcommittee on the Constitution
and Civil Justice. No further action was taken on the bill.
On the same day, Senator Casey introduced S. 1512, the Preg-
nant Workers Fairness Act, as a companion bill. This bill also main-
tained the same four protections from prior versions and added a
provision protecting workers from retaliation for requesting or
using reasonable accommodations. The bill had 31 cosponsors, in-
cluding one Independent and three Republicans. It was referred to
the Committee on Health, Education, Labor, and Pensions. No fur-
dlhill on DSK120RN23PROD with HEARING
ther action was taken on the bill.
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9
115TH CONGRESS
On May 11, 2017, Representative Nadler introduced H.R. 2417,
the Pregnant Workers Fairness Act. This version of the bill was
identical to the one introduced in the 114th Congress. The bill had
131 cosponsors: 129 Democrats and two Republicans. The bill was
referred to the House Committees on Education and the Workforce,
Administration, Oversight and Government Reform, and Judiciary.
The Judiciary Committee referred the bill to the Subcommittee on
the Constitution and Civil Justice. No further action was taken on
the bill.
On the same day, Senator Casey introduced S. 1101, the Preg-
nant Workers Fairness Act, in the Senate. This version of the bill
was identical to the one introduced in the 114th Congress. The bill
had 27 cosponsors: 24 Democrats, two Independents, and one Re-
publican. The bill was referred to the Committee on Health, Edu-
cation, Labor, and Pensions. No further action was taken on the
bill.
116TH CONGRESS
On May 14, 2019, Representative Nadler introduced H.R. 2694,
the Pregnant Workers Fairness Act. This version of the bill is iden-
tical to the one introduced in the 115th Congress. The bill was re-
ferred to the House Committees on Education and Labor, Adminis-
tration, Oversight and Reform, and Judiciary. Subsequently, the
Committee on Education and Labor referred the bill to the Sub-
committee on Civil Rights and Human Services, and the Judiciary
Committee referred the bill to the Subcommittee on the Constitu-
tion, Civil Rights, and Civil Liberties. There are 233 cosponsors as
of the date of the filing of this report, including 16 Republicans.
The bill makes it an unlawful employment practice to: (1) refuse
to make reasonable accommodations for the known limitations re-
lated to the pregnancy, childbirth, or related medical conditions of
a job applicant or qualified employee, unless the accommodation
would impose an undue hardship on an entity’s business operation;
(2) require job applicants or employees to accept an accommodation
that they do not want, if such accommodation is unnecessary to
perform the job; (3) deny employment opportunities based on the
need of the entity to make such reasonable accommodations to an
applicant or employee; (4) require employees to take paid or unpaid
leave if another reasonable accommodation can be provided; or (5)
take adverse action in terms, conditions, or privileges of employ-
ment against an employee requesting or using reasonable accom-
modations. The bill sets forth enforcement procedures and remedies
under various statutes that cover different types of employees, in-
cluding private sector, state, local, federal, and congressional em-
ployees. The bill requires the Equal Employment Opportunity Com-
mission to issue regulations within two years after the date of en-
actment. The bill makes clear that States are not immune from
legal action under the Eleventh Amendment to the U.S. Constitu-
tion.
To date, there is no Senate companion bill.
On October 22, 2019, the House Committee on Education and
Labor’s Subcommittee on Civil Rights and Human Services held a
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legislative hearing entitled ‘‘Long Over Due: Exploring the Preg-
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10
nant Workers Fairness Act (H.R. 2694)’’ (October 22nd Hearing).
The hearing examined the health and economic effects of pregnant
workers’ lack of access to reasonable accommodations. The hearing
also examined how H.R. 2694 would fill a gap in the existing legal
framework by guaranteeing pregnant workers the right to reason-
able workplace accommodations. The witnesses were: The Honor-
able Jerrold Nadler (D–NY–10); Michelle Durham, former Emer-
gency Medical Technician (EMT), Arab, AL; Iris Wilbur, Vice Presi-
dent of Government Affairs and Public Policy at Greater Louisville
Inc. The Metro Chamber of Commerce, Louisville, KY; Dina Bakst,
Co-Founder and Co-President of A Better Balance, New York, NY;
and Ellen McLaughlin, Partner at Seyfarth Shaw LLP, Chicago, IL.
On January 14, 2020, the House Committee on Education and
Labor marked up H.R. 2694 and ordered it to be reported favor-
ably, as amended, to the House of Representatives by a vote of 29
Yeas and 17 Nays.
At the markup, the Committee considered the following amend-
ments to H.R. 2694:
• Representative Robert C. ‘‘Bobby’’ Scott (D–VA–3), Chair-
man of the House Committee on Education and Labor, offered
an amendment in the nature of a substitute (ANS). The ANS:
(1) amended Section 2 to ensure that an employer cannot re-
quire a qualified employee to accept an accommodation other
than one established during the employer-employee interactive
negotiation process; (2) amended Section 3 to add a good faith
defense for covered entities and provided that damages may
not be awarded if the covered entity demonstrates good faith
in engaging in the interactive process to identify and make
reasonable accommodations; (3) amended Section 4 to remove
unnecessary rulemaking language but preserves the Equal
Employment Opportunity Commission’s obligation to promul-
gate regulations that provide examples of reasonable accom-
modations within two years of enactment; (4) amended Section
5 to clarify that the term ‘‘employer’’ means a person engaged
in an industry affecting commerce who has 15 or more employ-
ees as defined in Title VII of the Civil Rights Act of 1964 3; (5)
amended Section 5 to add a new definition of who is considered
a ‘‘qualified employee’’ by incorporating key elements from the
Americans with Disabilities Act of 1990 4; (6) amended Section
5 to add a new definition of the term ‘‘known limitations’’; and
(7) added a new Section 8 to include a severability clause in
the legislation. The ANS was adopted by voice vote.
• Representative Virginia Foxx (R–NC–5), Ranking Member
of the House Committee on Education and Labor, offered an
amendment in the nature of a substitute. It was similar to the
ANS offered by Chairman Scott but included a provision to ex-
empt religious organizations from coverage under the bill and
would have allowed religious employers to deny workers rea-
sonable accommodations under the law. The amendment was
defeated by a vote of 17 Yeas and 27 Nays.
dlhill on DSK120RN23PROD with HEARING
3 42 U.S.C. § 2000e(b).
4 42 U.S.C. § 12101.
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COMMITTEE VIEWS
The Committee on Education and Labor (Committee) is com-
mitted to protecting pregnant workers’ health and economic secu-
rity. No worker should have to choose between their health, the
health of their pregnancy, and the ability to earn a living. H.R.
2694, the Pregnant Workers Fairness Act (PWFA), makes clear that
pregnant workers have the right to reasonable accommodations ab-
sent undue hardship on the employer. The PWFA eliminates a lack
of clarity in the current legal framework that has frustrated preg-
nant workers’ legal rights to reasonable accommodations while pro-
viding clear guidance to both workers and employers.
THE PREGNANCY DISCRIMINATION ACT OF 1978 AND THE AMERICANS
WITH DISABILITIES ACT OF 1990 ARE INSUFFICIENT TO GUARANTEE
PREGNANT WORKERS REASONABLE ACCOMMODATIONS
Seventy-five percent of working women will become pregnant
while employed at some time in their lives.5 Women are increas-
ingly either the primary or co-breadwinners of households.6 As a
result, more pregnant women work later into their pregnancies. Re-
search suggests that more than 80 percent of first-time mothers
work until their final month of pregnancy.7 Pregnant workers may
need reasonable accommodations to protect the health of both
mother and baby. Reasonable accommodations can include pro-
viding seating, water, and light duty. They do not need to be, nor
are they typically, complicated or costly. But when pregnant work-
ers do not have access to the reasonable workplace accommodations
they need, they are forced to choose between their financial secu-
rity and a healthy pregnancy.
Although workers in need of pregnancy-related accommodations
may be able to seek recourse under the Pregnancy Discrimination
Act of 1978 (PDA) 8 and Title I of the Americans with Disabilities
Act of 1990 (ADA),9 varying interpretations have created an un-
workable legal framework. This has frustrated pregnant workers’
ability to secure reasonable accommodations. Under the PDA, a
pregnant worker must show that her employer accommodated a co-
worker who is ‘‘similar in their ability or inability to work’’ (known
as a comparator), which is a burdensome and often impossible
standard to meet. Under the ADA, a pregnancy-related impairment
that substantially limits a major life activity is a disability for
which an employer may be required to provide reasonable accom-
modations.10 However, this standard leaves women with less seri-
ous pregnancy-related impairments, and who need accommoda-
tions, without legal recourse. As explained further below, the pro-
5 Melissa Alpert, Center for American Progress, Labor Pains: Improving Employment and In-
come Security for Pregnant Women and New Mothers, 2 (2009), https://
cdn.americanprogress.org/wp-content/uploads/issues/2009/08/pdf/
labor_pains.pdf?_ga=2.262643852.1428433223.1599244597-106194704.1597112689.
6 Sarah Jane Glynn, Center for American Progress, Breadwinning Mothers Continue To Be
the U.S. Norm, 1 (2019) https://cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf?_ga=2.257334027.1474637733.1598641131-
106194704.1597112689.
7 Lynda Laughlin, U.S. Census Bureau, Maternity Leave and Employment Patterns: 2006–
2008 8 (2011), https://www.census.gov/prod/2011pubs/p70-128.pdf.
8 42 U.S.C. § 2000e(k).
dlhill on DSK120RN23PROD with HEARING
9 42 U.S.C. §§ 12111–12117.
10 29 C.F.R. §1630.
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tections under these two statutes are insufficient to ensure that
pregnant workers receive the accommodations they need.
HISTORY OF PREGNANT WORKERS’ STATUTORY PROTECTIONS: THE
PREGNANCY DISCRIMINATION ACT OF 1978
COURTS MISINTERPRETED CONGRESSIONAL INTENT IN TITLE VII OF
THE CIVIL RIGHTS ACT OF 1964
Congress passed Title VII of the Civil Rights Act of 1964 11 (Title
VII) to eliminate discrimination in employment on the basis of
race, sex, color, national origin, and religion. In 1972, the Equal
Employment Opportunity Commission (EEOC) issued guidelines on
pregnancy discrimination, concluding that Title VII’s prohibition
against sex discrimination in the workplace included discrimination
based on pregnancy.12 However, in two U.S. Supreme Court deci-
sions in the 1970s, the Court ruled that pregnancy discrimination
was not considered sex discrimination.
In Geduldig v. Aiello,13 the Court analyzed whether California’s
exclusion of pregnancy-related disabilities from its disability insur-
ance program was a violation of the Equal Protection Clause of the
Fourteenth Amendment to the Constitution and concluded it was
not. The Court held that because benefits were not denied on the
basis of gender,
[t]he California insurance program does not exclude any-
one from benefit eligibility because of gender but merely
removes one physical condition—pregnancy—from the list
of compensable disabilities. While it is true that only
women can become pregnant, it does not follow that every
legislative classification concerning pregnancy is a sex-
based classification.14
Two years later, the Supreme Court decided General Electric
Company v. Gilbert.15 At issue in Gilbert was a private employee
disability benefits plan that excluded pregnancy-related disability
from coverage. Relying heavily on the prior decision in Aiello, the
Court ruled that the exclusion did not constitute sex discrimination
as prohibited by Title VII.16
WITH THE PREGNANCY DISCRIMINATION ACT OF 1978, CONGRESS
SOUGHT TO OVERTURN SUPREME COURT PRECEDENT
Congress passed the PDA to overturn the Supreme Court’s erro-
neous interpretation of Title VII. The Senate Committee on Human
Resources report for the PDA stated:
[T]he assumption that women will become pregnant and
leave the labor market is at the core of the sex stereo-
typing resulting in unfavorable disparate treatment of
women in the workplace. A failure to address discrimina-
tion based on pregnancy, in fringe benefits or in any other
11 42 U.S.C. § 2000e
12 29 CFR §1604.10(b) (1973).
13 Geduldig v. Aiello, 417 U.S. 484 (1974).
14 417 U.S. 484, 496–97 n. 20 (1974).
dlhill on DSK120RN23PROD with HEARING
15 General Electric Company v. Gilbert, 429 U.S. 125, 135–36 (1976).
16 Id.
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13
employment practice, would prevent the elimination of sex
discrimination in employment.17
Congress sought, through the PDA, to codify the EEOC’s original
interpretation of Title VII and ‘‘make clear that the prohibitions
against sex discrimination in the act include discrimination in em-
ployment on the basis of pregnancy.’’ 18 In order to overturn Gil-
bert, the PDA amended Title VII in two parts. First, it amended
the Title VII’s definition of ‘‘sex’’ to include discrimination on the
basis of pregnancy, childbirth, or related medical conditions as sex
discrimination.19 In doing so, the PDA made clear that discrimina-
tion on the basis of pregnancy was discrimination on the basis of
sex.20 Second, it added a provision that stated that pregnant work-
ers ‘‘shall be treated the same for all employment-related purposes
. . . as other persons not so affected but similar in their ability or
inability to work.’’ 21 This language created the need for a pregnant
worker to identify a comparable coworker or group of coworkers to
determine whether she’s been discriminated against. According to
the House Committee on Education and Labor report for the PDA:
This legislation would clearly establish that the prohibi-
tion against sex discrimination in Title VII of the Civil
Rights Act of 1964 includes a prohibition against employ-
ment-related discrimination on the basis of pregnancy,
childbirth, or related medical conditions. As an amend-
ment to Title VII, the bill will apply to all aspects of em-
ployment—hiring, reinstatement, termination, disability
benefits, sick leave, medical benefits, seniority, and other
conditions of employment currently covered by Title VII.
Pregnancy-based distinctions will be subject to the same
scrutiny on the same terms as other acts of sex discrimina-
tion proscribed in the existing statute.22
At the October 22nd Hearing, Ms. Bakst summarized Congress’
intent with respect to the PDA:
Thus, when Congress mandated that employers treat
pregnant women the same as ‘other persons similar in
their ability or inability to work’ the intended result was,
and continues to be, that such treatment would lead to
women’s equality in the workplace. While the comparative
standard has led to positive results for some pregnant
workers, for far too many, equality in the workplace re-
mains elusive.23
17 S. Rep. No. 95–331, at 3 (1977).
18 Id. at 1.
19 42 U.S.C. § 2000e(k).
20 Brief for Members of Congress as Amici Curiae Supporting Petitioner at 9, Young v. United
States Parcel Service, Inc., 135 S. Ct. 1338 (2015) (No. 12–1226).
21 42 U.S.C. § 2000e(k).
22 H. Rep. No. 95–948, at 4 (1978).
23 Long Over Due: Exploring the Pregnant Workers Fairness Act (H.R. 2694) Before the
Subcomm. on Civil Rights & Human Servs. of the H. Comm. on Educ. & Labor, 116th Cong.
dlhill on DSK120RN23PROD with HEARING
(2019) (Testimony of Dina Bakst, Co-Founder & Co President, A Better Balance: The Work &
Family Legal Center, at 10) [hereinafter Bakst Testimony].
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COURT INTERPRETATIONS OF THE PDA LEFT NUMEROUS GAPS IN
PROTECTIONS
Prior to 2015, the circuit courts were split on how to determine
which type of workers were ‘‘similar in their ability or inability to
work’’ or would serve as a valid and relevant comparator to a preg-
nant worker for the purpose of securing reasonable accommoda-
tions under the PDA. In identifying a ‘‘relevant comparator,’’ the
majority of circuits focused on the source of the injury by com-
paring the pregnant worker’s treatment to those employees who
had sustained non-ADA-qualifying, off-the-job injuries.24 ‘‘In other
words, a pregnant worker was only entitled to be treated as well
(or as poorly) as those injured off the job.’’ 25 Only the Sixth Circuit
interpreted the PDA to mean that if a nonpregnant worker with a
lifting restriction, for example, was accommodated, then a pregnant
worker with a similar lifting restriction should likewise be accom-
modated.26
The PDA does not affirmatively require that an employer reason-
ably accommodate a pregnant worker. Ms. Bakst testified at the
October 22nd Hearing to the legal obstacles encountered by preg-
nant workers leading up to the landmark 2015 decision regarding
the PDA in Young v. United Parcel Service, Inc. (UPS): 27
[W]e reviewed 200 Pregnancy Discrimination Act cases
in the two years leading up to the Young decision and
found that of those cases that dealt with an issue of preg-
nancy accommodation, in nearly two-thirds of cases, courts
rejected the plaintiff’s PDA claim largely because the preg-
nant worker could not provide adequate comparators.28
THE SUPREME COURT DECISION IN YOUNG V. UNITED PARCEL SERVICE,
INC. ESTABLISHED A NEW STANDARD THAT IS UNWORKABLE IN
PRACTICE
In 2015, the Supreme Court decided Young v. UPS,29 which set
forth a new, controlling standard for a plaintiff to establish a dis-
parate treatment claim of discrimination in securing a reasonable
accommodation under the PDA.
In that case, Peggy Young worked as a part-time delivery driver
for UPS, and her job consisted of picking up and delivering pack-
ages. When Young became pregnant, her doctor advised her to lift
no more than twenty pounds. Young, who was required by company
policy to be able to lift up to 70 pounds, requested a light-duty
work assignment for the duration of her pregnancy. Because UPS’s
policy was to only grant an accommodation to employees who had
been injured on the job, were eligible for an ADA accommodation,
or had lost their Department of Transportation (DOT) certification,
UPS denied her request for a light-duty accommodation.30
24 Lara Grow, Pregnancy Discrimination in the Wake of Young v. UPS, 19 U.PA. J.L. & Soc.
Change 133, 144, (2016).
25 Id. at 145.
26 Id. at 144.
27 Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015).
28 Bakst Testimony at 12.
29 135 S. Ct. 1338 (2015).
dlhill on DSK120RN23PROD with HEARING
30 Lara Grow, Pregnancy Discrimination in the Wake of Young v. UPS, 19 U. Pa. J.L. & Soc.
Change 133, 147 (2016).
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UPS did not consider Young’s pregnancy to constitute an on-the-
job injury. Because of the unwillingness of her employer to place
her on light duty due to her pregnancy-related lifting restriction,
Young was forced to take an extended leave of absence without pay
or medical coverage.
Young sued UPS alleging disparate treatment under the PDA
and pursued her case to the U.S. Supreme Court.31 In a 6–3 deci-
sion, the Supreme Court set out a new test for pregnant workers
to prove that their employers acted unlawfully under the PDA
when the employer denied the pregnant worker an accommoda-
tion.32
• First, a plaintiff must demonstrate ‘‘that she belongs to the
protected class, that she sought accommodation, that the em-
ployer did not accommodate her, and that the employer did ac-
commodate others ‘similar in their ability or inability to
work.’’ 33
• Second, the employer can rebut this showing by providing
‘‘legitimate, nondiscriminatory reasons for denying her accom-
modation.’’ 34 In making such a showing, the Court made clear
that the employer’s reason ‘‘cannot consist simply of a claim
that it is more expensive or less convenient to add pregnant
women to the category of those (‘‘similar in their ability or in-
ability to work’’) whom the employer accommodates.’’ 35 Essen-
tially, the employer must provide a non-economic justification
for its actions.
• Third, if the employer successfully demonstrates ‘‘legiti-
mate, nondiscriminatory reasons’’ for its actions, the employee
must rebut the employer’s justification. The Court held that a
plaintiff can rebut this argument as pretextual ‘‘by providing
sufficient evidence that the employer’s policies impose a signifi-
cant burden on pregnant workers’’ and that the employer’s
‘‘reasons are not sufficiently strong to justify the burden.’’ 36
The Court explained that the employee can demonstrate that
the policy imposes a significant burden ‘‘by providing evidence
that the employer accommodates a large percentage of non-
pregnant workers while failing to accommodate a large per-
centage of pregnant workers.’’ 37 But the Court failed to define
‘‘a large percentage’’ and, critically, who of the non-pregnant
workers should be considered ‘‘relevant comparators’’ when
crafting that percentage.
31 See Brief of Petitioner at 13, Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015)
(Young filed suit in a Maryland District Court. The court granted summary judgement to UPS.
Young appealed to the Fourth Circuit. The Fourth Circuit ruled in favor of UPS, holding that
the company’s policy was neutral with respect to pregnancy, as pregnant workers were treated
the same as other similarly situated employees who sustained off-the-job injuries, and thus did
not constitute unlawful pregnancy discrimination. Young appealed the ruling to the Supreme
Court.).
32 The six to three decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015), was
rooted in the legal framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
33 Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354 (2015).
34 Id.
35 Id.
dlhill on DSK120RN23PROD with HEARING
36 Id.
37 Id.
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THE TEST UNDER YOUNG DOES NOT ADEQUATELY PROTECT PREGNANT
WORKERS
The Court’s holding in Young does not guarantee pregnant work-
ers a reasonable accommodation. Under the Young framework,
pregnant workers face high evidentiary hurdles to prove that their
employer should provide them with reasonable accommodations.
The decision still requires pregnant workers who bring a failure to
accommodate claim under the PDA to provide a comparator, but it
did little to provide clarity as to who constitutes a relevant com-
parator other than to say the standard should not be ‘‘onerous’’ on
workers.38 Forcing pregnant workers to identify a comparator cre-
ates an oftentimes insurmountable hurdle.
At odds with Justice Breyer’s majority opinion in Young stating
that the comparator standard should not be onerous on workers,
testimony received by the Committee at the October 22nd Hearing
points out that a requirement to establish a valid comparator
‘‘places a unique burden on pregnant workers’’ and ‘‘is also tone
deaf to the realities of the American workplace, where workers lack
clout, bargaining power, and access to their co-workers’ accom-
modations requests or personnel files.’’ 39 Indeed, in an analysis of
reasonable accommodation PDA cases decided after Young, ‘‘over
two-thirds of workers lost their pregnancy accommodation cases.
Nearly seventy percent of those losses can be traced to courts’ re-
jection of women’s comparators or inability to find comparators.’’ 40
Additionally, some courts have placed categorical bans on certain
types of comparators.41 This was the experience of Kimberlie Dur-
ham, who testified at the October 22nd Hearing. Ms. Durham, an
Emergency Management Technician (EMT), requested a temporary
reassignment after being told by her doctor that she should not lift
anything over 50 pounds; her job required lifting patients and
stretchers on a regular basis.42 Despite her employer’s policy of giv-
ing ‘‘light duty’’ or ‘‘modified duty’’ assignments to EMTs with lift-
ing restrictions for reasons other than pregnancy and the avail-
ability of vacant positions that Durham could fill that would not re-
quire lifting, Durham’s employer denied her request. Durham’s em-
ployer would only offer light or modified duty to EMTs injured on
the job, and pregnant workers didn’t qualify; instead, she would
had to have taken an unpaid leave of absence.43 Durham tried to
work with her employer to come to a solution, but her employer
was unresponsive until she filed for unemployment insurance:
After a month of silence, I filed for unemployment bene-
fits so that I could at least pay my bills. That’s what got
a response from Rural/Metro: the company opposed my ap-
plication, telling the state that I still worked there—even
though it had refused to schedule me for any shifts. After
that, I had no choice but to file a charge of discrimination
38 Id.
39 Bakst Testimony at 14.
40 Id. at 3.
41 Id.
42 Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694) Before the
Subcomm. on Civil Rights & Human Servs. of the H. Comm. on Educ. & Labor, 116th Cong.
dlhill on DSK120RN23PROD with HEARING
(2019) (Written testimony of Kimberlie M. Durham, at 4) [Hereinafter Durham Testimony].
43 Durham Testimony at 5.
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17
with the Equal Employment Opportunity Commission, fol-
lowed by a lawsuit in federal court in the fall of 2016.44
In Durham v. Rural/Metro Corporation,45 the federal district
court for the Northern District of Alabama found that Durham did
not have a PDA claim for the employer’s failure to accommodate
her lifting restriction, even though she could point to three other
co-workers who were given light or modified duty when they too
had lifting restrictions. The court’s reasoning hinged on the fact
that those three people had on-the-job injuries. In April 2020, an
appellate court ruled in Ms. Durham’s favor after nearly five years
in litigation.46
Pregnant workers must also discredit their employer’s justifica-
tion for failing to accommodate them. The Young decision requires
that the pregnant worker demonstrate that the ‘‘employer’s policies
impose a significant burden on pregnant workers.’’ 47 Ms. Bakst
testified at the October 22nd Hearing, ‘‘the ‘significant burden’
standard the Court laid out in Young as part of the pretext anal-
ysis in the third step of the test [sic] has also proven harmful to
women. If workers are even able to make it to this step in the anal-
ysis, the ‘significant burden’ analysis remains an additional hur-
dle.’’ 48
Additionally, using the Young framework can take years to get
a remedy. As Ms. Bakst testified at the October 22nd Hearing:
[U]nder the framework established by the court’s major-
ity in Young, a pregnant worker who wants to prove un-
lawful treatment based on her employer’s failure to accom-
modate her pregnancy must go through a multi-step proc-
ess that can only be fleshed out through lengthy litigation.
Yet most workers we hear from simply want an accommo-
dation to continue working and comply with their doctor’s
orders. They cannot afford to wait weeks, months, or years
for a court decision. Once their baby has started elemen-
tary school, it is obviously too late to ensure the pregnancy
is healthy at the outset and to prevent a downward spiral
of financial woes.49
Even if a pregnant worker can surmount the evidentiary hurdles
under the Young framework, her case will likely take years, lasting
well past the pregnancy and leaving her without a remedy during
her pregnancy. In the case of Ms. Durham, for example, by the
time a court finally ruled in her favor, her child was four years old.
Her remedy was long overdue.
THE HISTORY OF PREGNANT WORKERS’ PROTECTIONS: THE AMERICANS
WITH DISABILITIES ACT OF 1990
The ADA defines a disability as ‘‘a physical or mental impair-
ment that substantially limits one or more major life activities of
such individual; a record of such an impairment; or being regarded
44 Id.
45 Durham v. Rural/Metro Corp., No. 4:16–CV–01604–ACA, 2018 U.S. Dist. LEXIS 173461
(N.D. Ala. Oct. 9, 2018).
46 Durham v. Rural/Metro Corp., 955 F.3d 1279 (11th Cir. 2020).
47 135 S. Ct. 1338, 1354 (2015).
dlhill on DSK120RN23PROD with HEARING
48 Bakst Testimony at 16.
49 Bakst Testimony at 21.
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as having such an impairment.’’ 50 Title I of the ADA further pro-
vides that, ‘‘[n]o covered entity shall discriminate against a quali-
fied individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment.’’ 51 Since the passage of the ADA,
there has been a significant amount of debate over whether preg-
nancy could ever be considered a disability under the definition
above.52
Prior to the passage of the ADA Amendments Act of 2008
(ADAAA),53 the EEOC took the position that pregnancy was not an
‘‘impairment’’ and therefore could not be considered a disability
even if it was the cause of a substantial limitation.54 Courts relied
on this guidance and held in a line of cases that ‘‘absent unusual
circumstances, pregnancy does not constitute a ‘physical impair-
ment’ under the ADA.’’ 55 In addition to the EEOC’s determination
that pregnancy was not an ‘‘impairment,’’ EEOC regulations in
1999 listed as factors that should be considered in determining
whether an individual is substantially limited in a major life activ-
ity: the nature and severity of the impairment; the duration or ex-
pected duration of the impairment; and the permanent or long
term impact, or the expected permanent or long term impact of or
resulting from the impairment.56 Given that pregnancy lasts ap-
proximately nine months and any limitations resulting from preg-
nancy may last only for a portion of that timespan, it is not sur-
prising that few courts determined that pregnancy was covered by
the ADA prior to the ADAAA.
THE ADA AMENDMENTS ACT OF 2008 PROVIDES LIMITED PROTECTIONS
FOR PREGNANT WORKERS
Under the ADAAA, pregnancy itself may not be considered a dis-
ability but pregnant workers may have conditions that could qual-
ify them for accommodations under the law. The ADAAA was
passed in response to a series of cases in which the Supreme Court
limited who could be considered disabled under the ADA and
‘‘[n]arrowed the broad scope of protection intended to be afforded
by the ADA, thus eliminating protection for many individuals
whom Congress intended to protect.’’ 57
In guidance related to pregnancy discrimination adopted after
the ADAAA, the EEOC advised that, ‘‘[a]lthough pregnancy itself
is not a disability, pregnant workers may have impairments related
to their pregnancies that qualify as disabilities under the ADA . . .
A number of pregnancy-related impairments are likely to be dis-
abilities, even though they are temporary, such as pregnancy-re-
50 42 U.S.C. § 12102.
51 42 U.S.C. § 12112(a).
52 Samuel R. Bagenstos, Subordination, Stigma, and ‘‘Disability,’’ 86 Va. L. Rev. 397, 407
(2000) (citing Mary Crossley, The Disability Kaleidoscope, 74 Notre Dame L. Rev. 621, 668–716
(1999)).
53 42 U.S.C. § 12102.
54 29 U.S.C. Pt. 1630; See also, U.S. Equal Emp’t Opportunity Comm’n, The Family and Med-
ical Leave Act, the ADA, and Title VII of the Civil Rights Act of 1964 (1995), https://
www.eeoc.gov/laws/guidance/family-and-medical-leave-act-ada-and-title-vii-civil-rights-act-1964.
55 Villarreal v. J.E. Merit Constructors, 895 F. Supp. 149, 152 (S.D. Tex. 1995).
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56 29 C.F.R. § 1630.2.
57 42 U.S.C. § 12101 (see note on Findings and Purposes of Pub. L. 110–325).
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lated carpal tunnel syndrome, gestational diabetes, pregnancy-re-
lated sciatica, and preeclampsia.’’ 58
The ADAAA also expanded the definition of ‘‘major life activities’’
to include ‘‘major bodily functions.’’ 59 Additionally, ‘‘[u]nder the
ADAAA and its implementing regulations, an impairment is not
categorically excluded from being a disability simply because it is
temporary.’’ 60 Therefore, a pregnant worker may be a qualified in-
dividual with a disability for purposes of the ADA if her pregnancy
impairs a major bodily function (such as functions of the immune
system, normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive func-
tions) or her ability to perform a major life activity (such as caring
for oneself, performing manual tasks, sleeping, walking, standing,
lifting, bending, speaking, learning, reading, concentrating, think-
ing, communicating, and working).
Although the ADAAA’s definition of disability is almost broad
enough to cover any limitation related to pregnancy, courts have
been reticent to apply the broad definition of disability urged by
the ADAAA.61 While the EEOC has been careful to adhere to the
ADAAA’s expansive view of disability in the context of pregnancy,
a review of the caselaw suggests that courts have been more ag-
gressive in limiting the application of the ADAAA to pregnant
workers. ‘‘In order to make out a prima facie case of disability dis-
crimination under the ADA, [the plaintiff] must establish that she
(1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has suf-
fered an adverse employment action because of that disability.’’ 62
In order to establish the prima facie case for discrimination on the
basis of an employer’s failure to make a reasonable accommodation,
a plaintiff must show that: ‘‘(1) plaintiff is a person with a dis-
ability under the meaning of the ADA; (2) an employer covered by
the statute had notice of [her] disability; (3) with reasonable accom-
modation, plaintiff could perform the essential functions of the job
at issue; and (4) the employer has refused to make such accom-
modations.’’ 63
To determine whether a plaintiff’s condition meets the legal defi-
nition of ‘‘disability,’’ courts must assess whether the worker has ‘‘a
physical or mental impairment that substantially limits one or
more major life activities of such individual.’’ 64 If the court deter-
mines that the plaintiff did not have an ‘‘impairment,’’ the indi-
vidual will not reach the second part of the inquiry to determine
whether the individual is substantially limited in one or more
major life activities. Numerous courts applying the ADAAA have
continued to hold that, ‘‘pregnancy, absent unusual circumstances,
58 Fact Sheet for Small Businesses: Pregnancy Discrimination, U.S. Equal Emp’t Opportunity
Comm’n, https://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm (last visited Mar. 18,
2020).
59 42 U.S.C. § 12102.
60 Summers v. Altarum Inst., Corp., 740 F.3d 325, 333 (4th Cir. 2014).
61 Nicole B. Porter, Explaining ‘‘Not Disabled’’ Cases Ten Years After the ADAAA: A Story of
Ignorance, Incompetence, and Possibly Animus, 26 Geo. J. Poverty Law & Pol’y 383, 392 (2019).
Of nearly 1,000 ADA cases decided between 2014 and 2018, the federal courts erroneously ruled
that workers were not individuals with disabilities entitled to the protections of the ADA in 210
of them.
62 Turner v. Hershey Chocolate, 440 F.3d 604, 611 (3d Cir. 2006).
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63 Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 577 (S.D.N.Y. 2008).
64 42 U.S.C. § 12102(1)(a).
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is not considered a disability under the ADA.’’ 65 In response to
questions for the record for the October 22nd Hearing submitted by
Representative Suzanne Bonamici (D–OR–1), Chair of the Commit-
tee’s Subcommittee on Civil Rights and Human Services, Ms. Bakst
stated:
Disturbingly, courts are finding that even when preg-
nant women have quite serious complications, those com-
plications do not merit ADAAA protections . . . Courts
also explicitly distinguish ‘pregnancy-related complications’
from an ADAAA qualifying ‘disability,’ thus acknowledging
that even those pregnant women with complications may
have no recourse under the ADAAA.66
In fact, one court stated, ‘‘only in extremely rare cases have
courts found that conditions that arise out of pregnancy qualify as
a disability.’’ 67 Another court acknowledged, ‘‘[a]lthough the 2008
amendments broadened the ADA’s definition of disability, these
changes only have had a modest impact when applied to preg-
nancy-related conditions.’’ 68
There are many cases where courts have found that even severe
complications related to pregnancy do not constitute disabilities
triggering ADAA protection. In Adireje v. ResCare, Inc.,69 the court
dismissed a health care worker’s ADAAA claim even though she ex-
perienced unbearable cramping, bleeding, and a miscarriage. The
court held, ‘‘even if Adireje had a pregnancy-related complication
. . . [she] was not disabled for purposes of the ADA because there
is no evidence that her cramps limited her ability to work or other
major life activities.’’ 70
In addition to the general reticence to equate pregnancy and dis-
ability, courts have sometimes pointed to the short duration of
pregnancy complications as a reason to reject an ADAAA claim.
The EEOC’s guidance on the ADAAA states that, ‘‘[i]mpairments
that last only for a short period of time are typically not covered,
65 See Tomiwa v. PharMEDium Servs., LLC, No. 4:16–CV–3229, 2018 U.S. Dist. LEXIS 66772,
at *13 (S.D. Tex. Apr. 20, 2018) (‘‘Absent unusual circumstances, pregnancy and related medical
conditions do not constitute a physical impairment.’’); Mayorga v. Alorica, Inc., No. 12–21578–
CIV–HUCK/BANDSTRA, 2012 U.S. Dist. LEXIS 3043021, at *32 (S.D. Fla. July 25, 2012) (cit-
ing, inter alia, Selkow v. 7-Eleven, Inc., No. 11–CV–456–T–33EAJ, 2012 U.S. Dist. LEXIS 79265,
at *37 (M.D. Fla. June 7, 2012) (‘‘Absent unusual circumstances, pregnancy is not considered
a disability—temporary or otherwise—under the ADA or FCRA.’’); Jeudy v. Holder, No. 10–
22873–CIV–HUCK/BANDSTRA, 2011 U.S. Dist. LEXIS 128746, at *13 (S.D. Fla. Nov. 7, 2011)
(noting ‘‘that pregnancy is not normally considered a disability’’)).
66 Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694) Before the
Subcomm. on Civil Rights Human. & Servs. of the H. Comm. on Educ. & Labor, 116th Cong.
(2019) (Questions for the record submitted by Dina Bakst, Co-Founder & Co-President, A Better
Balance, at 7–10).
67 Sam-Sekur v. Whitmore Grp., Ltd., No. 11–CV–4938 (JFB) (GRB), 2012 U.S. Dist. LEXIS
83586, at *24 (E.D.N.Y. June 15, 2012); see also Wanamaker v. Westport Board of Education,
899 F.Supp.2d 193, 211 (D. Conn. 2012) (Citing to Sam-Sekur and the EEOC guidance that
short-term impairments must be ‘‘sufficiently severe’’ for the proposition that pregnancy-related
conditions are only ADAAA-qualifying in rare cases. Additionally, finding plaintiff teacher could
not pursue her ADA claim because she ‘‘failed to allege that her transverse myelitis limit[ed]
a major life activity and that any impairment as a result of her transverse myelitis was not
for a short period of time’’ and ‘‘no other facts indicating that [her] condition was chronic.’’ Id.
at 212.).
68 Scheidt v. Floor Covering Assocs., Inc., No. 16–CV–5999, 2018 U.S. Dist. LEXIS 167480, at
*23–24 (N.D. Ill. Sept. 28, 2018) (holding allergies, including rashes and breathing problems,
do not constitute a disability that impairs a major life activity).
69 Adireje v. ResCare, Inc., No. 1:18–CV–01429–TWP–DLP, 2019 U.S. Dist. LEXIS 170125
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(S.D. Ind. Sept. 30, 2019).
70 Id. at 24.
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although they may be covered if sufficiently severe.’’ 71 Courts con-
tinue to read a durational requirement into the ADAAA.72 For ex-
ample, one court held that ‘‘temporary, non-chronic impairments of
short-duration, with little or no long term or permanent impact,
are usually not disabilities.’’ 73 Regardless of the merits of the indi-
vidual cases, the reality is that, as one court stated, ‘‘only in ex-
tremely rare cases have courts found that conditions that arise out
of pregnancy qualify as a disability.’’ 74 As Ms. Bakst noted at the
October 22nd Hearing, ‘‘courts consistently make clear that preg-
nancy itself is not a disability and does not merit reasonable ac-
commodations under the ADAAA . . . courts have been unwilling
to extend ADAAA coverage for pregnancy-related disabilities, even
in cases where workers have presented serious pregnancy complica-
tions.’’ 75
Given the case law, it is abundantly clear that the ADA, as
amended by the ADAAA, does not provide a sufficient avenue for
receiving reasonable accommodations that would allow a worker to
continue to earn a living while maintaining a healthy pregnancy.76
THE PREGNANT WORKERS FAIRNESS ACT PROMOTES PREGNANT
WORKERS’ HEALTH AND ECONOMIC WELLBEING
Women comprise nearly half the U.S. workforce.77 Women are
the primary, sole, or co-breadwinners in nearly 64 percent of fami-
lies, earning at least half of their total household income.78 Not
surprisingly, women are increasingly working later into their preg-
nancies. According to the U.S. Census Bureau, between 2006 and
2008, 88 percent of first-time mothers worked during their last tri-
mester and 82 percent worked into their last month of pregnancy.79
When pregnant workers are not provided reasonable accommoda-
71 See 29 C.F.R. § 1630 (Appendix to Part 1630, Interpretive Guidance on Title I of the Ameri-
cans with Disabilities Amendments Act).
72 Love v. First Transit, Inc., No. 16–CV–2208, 2017 U.S. Dist. LEXIS 37716, at *16 (N.D. Ill.
Mar. 16, 2017). See also Lang v. Wal-Mart Stores East, L.P., No. 13–CV–349–LM, 2015 U.S.
Dist. LEXIS 44185, at *4 (D.N.H. Apr. 3, 2015) (‘‘[P]regnancy is not an actionable disability, un-
less it is accompanied by a pregnancy-related complication.’’); Annobil v. Worcester Skilled Care
Ctr., Inc., No. 11–40131–TSH, 2014 U.S. Dist. LEXIS 126643, at *36 (D. Mass. Sept. 10, 2014)
(granting summary judgment for defendant where plaintiff ‘‘provides no legal argument as to
whether such symptoms [including headaches, nausea and vomiting] differ from normal symp-
toms of pregnancy and how these complications are disabling’’); Mayorga v. Alorica, Inc., No.
12–21578–CIV–HUCK/BANDSTRA, 2012 U.S. Dist. LEXIS 103766, at *5 (S.D. Fla. July 25,
2012).
73 Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 211 (D. Conn. 2012).
74 Sam-Sekur v. Whitmore Grp., Ltd., No. 11–CV–4938 (JFB) (GRB), 2012 U.S. Dist. LEXIS
83586, at *24 (E.D.N.Y. June 15, 2012); see also Wanamaker v. Westport Board of Education,
899 F. Supp. 2d 193, 211 (D. Conn. 2012) (Citing to Sam-Sekur and the EEOC guidance that
short-term impairments must be ‘‘sufficiently severe’’ for the proposition that pregnancy-related
conditions are only ADAAA-qualifying in rare cases. Additionally, finding plaintiff teacher could
not survive her ADA claim because she ‘‘failed to allege that her transverse myelitis limit[ed]
a major life activity and that any impairment as a result of her transverse myelitis was not
for a short period of time’’ and ‘‘no other facts indicating that [her] condition was chronic.’’ Id.
at 212.).
75 Bakst Testimony at 17.
76 Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694) Before the
Subcomm. on Civil Rights Human. & Servs. of the H. Comm. on Educ. & Labor, 116th Cong.
(2019) (Questions for the record submitted by Dina Bakst, Co-Founder & Co-President, A Better
Balance, at 7–10).
77 Catalyst, Quick Take: Women in the Workforce—United States (June 5, 2019), https://
www.catalyst.org/research/women-in-the-workforce-united-states/.
78 Sarah Jane Glynn, Center for American Progress, Breadwinning Mothers Continue to be
the U.S. Norm 5 (2019), https://cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf.
79 Lynda Laughlin, U.S. Bureau of the Census, Maternity Leave and Employment Patterns
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of First-Time Mothers: 1961–2008 6 (2011), https://www.census.gov/library/publications/2011/
demo/p70-128.html.
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tions on the job, they are oftentimes forced to choose between eco-
nomic security and their health or the health of their babies.
REASONABLE ACCOMMODATIONS FOR PREGNANT WORKERS PROMOTE
HEALTHY PREGNANCIES
According to the American College of Obstetricians and Gyne-
cologists (ACOG), providing reasonable accommodations to preg-
nant workers is critical for the health of women and their chil-
dren.80 Depending on the circumstances of the pregnancy, physi-
cians recommend that pregnant women avoid or limit certain risks
in the workplace, including exposure to certain compounds, heavy
lifting, overnight work, extended hours, or prolonged periods of sit-
ting or standing.81 Some studies have shown increased risk of mis-
carriage, preterm birth, low birth weight, urinary tract infections,
and fainting as a result of these exposures.82
According to ACOG, these health risks can be addressed with
simple accommodations such as: seating; water; closer parking;
flexible hours; appropriately sized uniforms and safety apparel; ad-
ditional breaktime to use the bathroom, eat, and rest; excusing the
worker from strenuous activities; and excusing the worker from ac-
tivities that involve exposure to compounds not safe for preg-
nancy.83 A 2014 survey found that the most common temporary
pregnancy-related accommodation sought (71 percent of partici-
pants) was more frequent breaks (e.g., bathroom breaks).84
A 2014 survey issued by the National Partnership for Women
and Families estimated that one quarter million pregnant workers
are denied their requests for reasonable workplace accommodations
nationally each year.85 Additionally, women of color are especially
impacted as they are more likely to work in low wage, physically
demanding jobs. In written testimony submitted for the record for
the October 22nd Hearing, Emily Martin of the National Women’s
Law Center stated:
[O]ver 40 percent of full-time workers in low-wage jobs
report that their employers do not permit them to decide
when to take breaks, and roughly half report having very
little or no control over the scheduling of hours. This cul-
ture of inflexibility can lead to reflexive denials when
workers in low-wage jobs seek pregnancy-related accom-
modations, which is of particular concern given that more
than one in five (20.9%) pregnant workers is employed in
a low-wage job. Moreover, pregnant Black women and
Latinas are disproportionately represented in low-wage
jobs. Nearly one in three Black and Latina pregnant work-
ers hold low-wage jobs (30.0 percent and 31.3 percent, re-
80 The American College of Obstetricians and Gynecologists, Employment Considerations Dur-
ing Pregnancy and the Postpartum Period e117 (2018), https://www.acog.org/-/media/project/
acog/acogorg/clinical/files/committee-opinion/articles/2018/04/employment-considerations-during-
pregnancy-and-the-postpartum-period.pdf.
81 Id. at, e120.
82 Dina Bakst et al., A Better Balance, Long Overdue: It’s Time for the Federal Pregnant
Workers Fairness Act 23 (2019), https://www.abetterbalance.org/wp-content/uploads/2019/05/
Long-Overdue.pdf.
83 Id.
84 Nat’l Partnership for Women and Families, Listening to Mothers: The Experiences of Ex-
pecting and New Mothers in the Workplace 2 (2014), https://www.nationalpartnership.org/our-
work/resources/economic-justice/pregnancy-discrimination/listening-to-mothers-experiences-of-ex-
dlhill on DSK120RN23PROD with HEARING
pecting-and-new-mothers.pdf.
85 Id. at 3.
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spectively). This means a lack of clear legal rights to preg-
nancy accommodations likely hits Black women and
Latinas particularly hard.86
When simple accommodations like those suggested by ACOG are
not provided, the impacts on a worker’s health and pregnancy can
be deadly. At the October 22nd Hearing, Representative Steve
Cohen (D–TN–9) highlighted a constituent’s experience at a ware-
house in Memphis, TN:
Memphis has a plant that XPO ran. It was the subject
of a major story in the New York Times concerning work
conditions there and particularly pregnant women . . .
One of the former employees, Ms. Tasha Morelle brought
her doctor’s note instructing that she do no heavy lifting.
The supervisor did not accommodate the doctor’s note, nor
reassign her to a different area. Ms. Morelle continued
doing her assigned work of lifting boxes weighing almost
50 pounds. As a result, she suffered a miscarriage.87
At the October 22nd Hearing, Representative Jahana Hayes (D–
CT–5), a member of the Committee, described her experience when
reasonable accommodations were not provided to her at work:
I was a working mom, an educator who had an unevent-
ful pregnancy. I was not older [sic] I did not have any com-
plications and what I thought was a reasonable accommo-
dation [became] a tremendous inconvenience. I was a
classroom teacher and all I needed was to go to the bath-
room which I thought was a reasonable request to ask but
you can imagine in a high school with more than 1,000
kids, to get coverage, I was often told ‘well you just had
your break’ or ‘we only have two more periods before it’s
time for lunch.’ And thinking that I have to go right now
was just something that I just dealt with which led to fur-
ther complications with bladder issues so what started out
as an uneventful pregnancy ended up having complications
as a result of this minor accommodation not being met.88
With the COVID–19 health pandemic ravaging the country, preg-
nant workers are in even greater need of reasonable accommoda-
tions. According to the Centers for Disease Control and Prevention
(CDC), ‘‘pregnant people might be at an increased risk for severe
illness from COVID–19.’’ 89 Pregnant women who contract COVID–
19 ‘‘are more likely to be hospitalized and are at increased risk for
intensive care unit (ICU) admission and receipt of mechanical ven-
86 Long Overdue: Exploring the Pregnant Workers Fairness Act (H.R. 2694). Before the
Subcomm. on Civil Rights & Human Servs. of the H. Comm. on Educ. & Labor, 116th Cong.
(2019) (Statement of Emily Martin, Vice President for Education and Workplace Justice, Na-
tional Women’s Law Center, at 3).
87 House Committee on Educ. & Labor, Long Over Due: Exploring the Pregnant Workers’ Fair-
ness Act, YouTube (Oct. 22, 2019), https://www.youtube.com/watch?time_continue=2&v=SI3WK-
7KVNE&feature=emb_logo (See statement of Rep. Steve Cohen, at 1:52:15).
88 House Committee on Educ. & Labor, Long Over Due: Exploring the Pregnant Workers’ Fair-
ness Act, YouTube (Oct. 22, 2019), https://www.youtube.com/watch?time_continue=2&v=SI3WK-
7KVNE&feature=emb_logo (See statement of Rep. Jahana Hayes, at 1:08:43).
89 Pregnancy & Breastfeeding, Ctr. For Disease Control and Prevention, https://www.cdc.gov/
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coronavirus/2019-ncov/need-extra-precautions/pregnancy-breastfeeding.html (last visited Aug.
31, 2020).
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tilation than nonpregnant women.’’ 90 Women, and in particular
women of color, make up a disproportionate share of the essential
workforce.91 Pregnant workers on the frontlines could be at in-
creased risk of contracting COVID–19 and complicating their preg-
nancies. One study of pregnant women in Philadelphia found that
Black and Hispanic women are ‘‘five times more likely to be ex-
posed to coronavirus.’’ 92 Guaranteed reasonable accommodations
could be pivotal in pregnant workers maintaining healthy preg-
nancies during COVID–19.
REASONABLE ACCOMMODATIONS FOR PREGNANT WORKERS PROMOTE
FAMILIES’ ECONOMIC STABILITY
Families increasingly rely on pregnant workers’ income. Seventy-
five percent of women will be pregnant and employed at some point
in their careers.93 In 2017, 41 percent of mothers were the sole or
primary breadwinners in their households, and one-quarter of
mothers were co-breadwinners, bringing home 25 percent to 49 per-
cent of earnings for their families.94 Ensuring pregnant workers
have reasonable accommodations helps ensure that pregnant work-
ers remain healthy and earn an income when they need it the
most. Pregnant mothers want, and oftentimes need, to keep work-
ing during their pregnancies, both for income and to retain health
insurance.95 According to an analysis from the non-profit organiza-
tion A Better Balance:
Many pregnant workers are forced to use up allotted
leave time early, sometimes even before they give birth,
leaving no time remaining for recovery from childbirth.
Others are fired when they request accommodations or ex-
haust their leaves of absence, and then face a particularly
difficult time re-entering the workforce as new mothers.
Some women lose their health benefits when they are fired
or forced onto unpaid leave and then must switch pro-
viders and/or delay medical care while securing replace-
ment health insurance. For women who lose their health
insurance shortly before going into labor, they could be
looking at staggering healthcare costs for childbirth, which
90 Pregnancy Data, Ctr. For Disease Control and Prevention, https://www.cdc.gov/coronavirus/
2019-ncov/cases-updates/special-populations/pregnancy-data-on-covid-19.html (last visited Au-
gust 31, 2020).
91 See Hye Jin Rho, Ctr. for Econ. And Policy Research, A Basic Demographic Profile of Work-
ers in Frontline Industries 3 (2020), https://cepr.net/a-basic-demographic-profile-of-workers-in-
frontline-industries/. See also Jocelyn Frye, Ctr. For American Progress, On the Frontlines at
Work and at Home: The Disproportionate Economic Effects of the Coronavirus Pandemic on
Women of Color 8 (2020), https://www.americanprogress.org/issues/women/reports/2020/04/23/
483846/frontlines-work-home/
92 News Release, Penn Medicine News, Pregnant Black and Hispanic Women Five Times More
Likely to Be Exposed to Coronavirus (July 29, 2020), https://www.pennmedicine.org/news/news-
releases/2020/july/pregnant-black-and-hispanic-women-five-times-more-likely-to-be-exposed-to-
coronavirus.
93 Dina Bakst et al., A Better Balance, Long Overdue: It’s Time for the Federal Pregnant
Workers Fairness Act 23 (2019), https://www.abetterbalance.org/wp-content/uploads/2019/05/
Long-Overdue.pdf.
94 Sarah Jane Glynn, Center for American Progress, Breadwinning Mothers Continue to be
the U.S. Norm 5 (2019), https://cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf.
95 A Better Balance, Pregnant and Jobless: Thirty-Seven Years after Pregnancy Discrimina-
dlhill on DSK120RN23PROD with HEARING
tion Act, Pregnant Women Still Choose Between a Paycheck and a Healthy Pregnancy 11 (2015),
https://www.abetterbalance.org/wp-content/uploads/2017/01/PregnantandJobless.pdf.
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25
averages $30,000 for a vaginal delivery and $50,000 for a
C-section in the U.S.96
Pregnant workers who are pushed out of the workplace might
feel the effects for decades, losing out on everything from 401(k) or
other retirement contributions to short-term disability benefits, se-
niority, pensions, social security contributions, life insurance, and
more.97
Guaranteeing reasonable accommodations for pregnant workers
also promotes women’s labor force participation. In a letter to Con-
gress, eighteen leading members of the employer community en-
couraged Congress to pass the PWFA because ‘‘[w]omen’s labor
force participation is critical to the strength of our companies the
growth of our economy and the financial security of most modern
families’’ 98 As Ms. Wilbur testified at the October 22nd Hearing:
The Act would help boost our country’s workforce par-
ticipation rate among women. In states like Kentucky,
which ranks 44th in the nation for female labor force par-
ticipation, we know one contributor to this abysmal sta-
tistic is a mother or soon-to-be mother who is forced out
or quits a job due to a lack of reasonable workplace accom-
modations. We can help prevent such situations by clearly
laying the groundwork for an informed dialogue between
employers and employees on how these employees can con-
tinue working safely and productively throughout the
course of a pregnancy and afterwards.99
THE PREGNANT WORKERS FAIRNESS ACT ENSURES WORKERS HAVE
THE RIGHT TO REASONABLE ACCOMMODATIONS
The PWFA establishes a pregnant worker’s right to reasonable
accommodations and eliminates the evidentiary hurdles to defend
that right. It applies to private sector employers with 15 or more
employees as well as public sector employers. Covered employers
must make reasonable accommodations and cannot deny employ-
ment opportunities for job applicants or employees affected by a
‘‘known limitation’’ related to pregnancy, childbirth, or a related
medical condition.100 Under the PWFA, a ‘‘known limitation’’
means a physical or mental condition related to, affected by, or
arising out of pregnancy, childbirth, or related medical conditions
that the pregnant worker or her representative has communicated
to the employer. Similar to the ADA, employers are not required
to make an accommodation if it imposes an undue hardship on an
employer’s business.
96 Dina Bakst et al., A Better Balance, Long Overdue: It’s Time for the Federal Pregnant
Workers Fairness Act 23 (2019), https://www.abetterbalance.org/wp-content/uploads/2019/05/
Long-Overdue.pdf.
97 Pregnant and Jobless, supra note 96, at 11.
98 Letter from Adobe et al., to Members of Congress (June 17, 2020) https://
www.nationalpartnership.org/our-work/resources/economic-justice/coalition/an-open-letter-in-
support-of-PWFA-from-private-sector-employers.pdf.
99 Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694) Before the
Subcomm. on Civil Rights & Human Servs. of the H. Comm. on Educ. & Labor, 116th Cong.
(2019) (Written testimony of Iris Wilbur, Vice President of Government Affairs & Public Policy,
Greater Louisville Inc.—The Metro Chamber of Commerce, at 2).
100 National Partnership For Women And Families, Pregnant Workers Fairness Act Section
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by Section 1 (2019), http://www.nationalpartnership.org/our-work/resources/workplace/
pregnancy-discrimination/pregnant-workers-fairness-act-section-by-section.pdf.
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For private sector employees and job applicants, the PWFA is
written to mirror the enforcement powers, procedures, and rem-
edies established under the Civil Rights Act of 1964.101 A court
may award lost pay, interest, compensatory damages, punitive
damages, costs, reasonable attorneys’ fees, and experts’ fees, to the
extent that such relief is available under the law. For public sector
employees and job applicants, the PWFA provides mirrors the pow-
ers, remedies, and procedures under the Congressional Account-
ability Act,102 Title V of the United States Code,103 Section 717 of
the Civil Rights Act of 1964,104 and the Government Employee
Rights Act of 1991.105 For both the private and public sectors, if
the employer engaged in good faith negotiations with the employee
during the interactive process but the parties cannot agree to a
reasonable accommodation, the employer is not liable for damages.
THE PREGNANT WORKERS FAIRNESS ACT MIRRORS KEY PROVISIONS OF
THE AMERICANS WITH DISABILITIES ACT OF 1990
The PWFA requires private sector employers with 15 or more
employees and public sector employers to make ‘‘reasonable accom-
modations’’ to the ‘‘known limitations’’ related to pregnancy, child-
birth, or related medical conditions of a ‘‘qualified’’ employee unless
doing so would be an ‘‘undue hardship’’ for the employer. Addition-
ally, the PWFA uses ADA terminology to require the use of the
‘‘interactive process’’ for establishing reasonable accommodations.
THE PREGNANT WORKERS FAIRNESS ACT INCLUDES A WIDE ARRAY OF
PREGNANCY-RELATED CONDITIONS
Throughout the bill’s text, the PWFA ensures that workers have
access to reasonable accommodations for conditions connected with
a pregnancy, not just a pregnancy itself. Section 2 guarantees
workers reasonable accommodations for the ‘‘known limitations re-
lated to the pregnancy, childbirth, or related medical conditions of
a qualified employee.’’ The bill further defines ‘‘known limitations’’
to mean a physical or mental condition related to, affected by, or
arising out of pregnancy, childbirth, or related medical conditions
that the employee has communicated to the employer, whether or
not such limitation meets the definition of disability outlined in the
ADA. The definition of ‘‘known limitation’’ allows the worker to
communicate her need for a reasonable accommodation. However,
this provision is broad and recognizes that there may be times
when a worker’s representative may communicate this request on
her behalf. Importantly, PWFA does not import the ADA’s defini-
tion of disability, but rather requires employers to make accom-
modations to the ‘‘known limitations’’ related to pregnancy, child-
birth, or related medical conditions.
ONLY ‘‘QUALIFIED EMPLOYEES’’ ARE ELIGIBLE FOR THE PREGNANT
WORKERS FAIRNESS ACT’S REASONABLE ACCOMMODATIONS
The PWFA limits which employees are eligible for reasonable ac-
commodations to those employees and applicants who are qualified.
101 42 U.S.C. § 2000e.
102 2 U.S.C. § 1301.
103 3 U.S.C. § 411.
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104 42 U.S.C. § 2000e–16.
105 42 U.S.C. § 2000e–16b.
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The definition of qualified under PWFA is very similar to the defi-
nition used in the ADA, which requires that the applicant or em-
ployee must ‘‘satisfy job requirements for educational background,
employment experience, skills, licenses, and any other qualification
standards that are job related and be able to perform those tasks
that are essential to the job (‘‘essential functions’’), with or without
reasonable accommodation.’’ 106
The PWFA defines a qualified employee as ‘‘an employee or ap-
plicant who, with or without reasonable accommodations, can per-
form the essential functions of the employment position.’’ 107
PWFA’s ‘‘qualified individual’’ definition deviates from the ADA’s
by providing the following caveat: ‘‘[E]xcept that an employee or
applicant shall be considered qualified if—(A) any inability to per-
form an essential function is for a temporary period; (B) the essen-
tial function could be performed in the near future; and (C) the in-
ability to perform the essential function can be reasonably accom-
modated.’’ 108
This language was inserted into the PWFA to make clear that
the temporary inability to perform essential functions due to preg-
nancy does not render a worker ‘‘unqualified.’’ Just as there is
precedent under the ADA for the temporary excusal of essential
functions, there may be a need for a pregnant worker to tempo-
rarily perform other tasks before fully returning to her position.
Under the ADA, courts have found workers are entitled to reason-
able accommodations if they only need a finite leave of absence or
a transfer that would allow them to perform the essential functions
of the job ‘‘in the near future.’’ 109
Because the ADA’s ‘‘essential functions’’ language is mirrored in
the PWFA, current understanding of ‘‘essential functions’’ under
the ADA is instructive to the PWFA. According to the EEOC, fac-
tors to consider in determining if a function is ‘‘essential’’ include:
• whether the reason the position exists is to perform that
function;
• the number of other employees available to perform the
function or among whom the performance of the function can
be distributed; and
• the degree of expertise or skill required to perform the
function.110
A written job description prepared before advertising or inter-
viewing for a job will be considered as evidence of ‘‘essential func-
tions,’’ but it is not the only evidence considered. Other kinds of
evidence that the EEOC will consider include:
• the actual work experience of present or past employees in
the job;
• the time spent performing a function;
• the consequences of not requiring that an employee per-
form a function; and
106 The ADA: Your Responsibilities as an Employer, U.S. Equal Emp’t Opportunity Comm’n
(Jan. 15, 1997) https://www.eeoc.gov/facts/ada17.html#:∼:text=Essential%20functions%20are%
20the%20basic,tasks%20are%20essential%20to%20performance.
107 H.R. 2694, 116th Cong. § 5(6) (2019) (as reported).
108 Id.
109 See, e.g. Robert v. Bd. of Cty. Comm’rs of Brown Cty., Kans., 691 F.3d 1211, 1218 (10th
Cir. 2012).
110 The ADA: Your Responsibilities as an Employer, U.S. Equal Emp’t Opportunity Comm’n
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(Jan. 15, 1997) https://www.eeoc.gov/facts/ada17.html#:∼:text=Essential%20functions%20
are%20the%20basic,tasks%20are%20essential%20to%20performance.
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• the terms of a collective bargaining agreement.111
THE PREGNANT WORKERS FAIRNESS ACT USES THE REASONABLE AC-
COMMODATION FRAMEWORK WITHIN THE AMERICANS WITH DISABIL-
ITIES ACT OF 1990
The PWFA uses the term ‘‘reasonable accommodation,’’ as de-
fined under the ADA, throughout the bill’s text. Under the ADA,
a ‘‘reasonable accommodation’’ means:
(i) Modifications or adjustments to a job application process
that enable a qualified applicant with a disability to be consid-
ered for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or
to the manner or circumstances under which the position held
or desired is customarily performed, that enable an individual
with a disability who is qualified to perform the essential func-
tions of that position; or
(iii) Modifications or adjustments that enable a covered enti-
ty’s employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other similarly
situated employees without disabilities.112
Job restructuring, part-time or modified work schedules, reas-
signment to a vacant position, acquisition or modification of equip-
ment or devices, appropriate adjustment or modifications of exami-
nations, training materials or policies, and the provision of quali-
fied readers or interpreters are all included in a non-exhaustive list
of possible ADA accommodations.113
The Job Accommodation Network (JAN), an ADA technical as-
sistance center funded by the U.S. Department of Labor’s Office of
Disability Employment Policy (ODEP), lists numerous potential ac-
commodations related to disabilities that might arise during preg-
nancy, including more than 20 suggested accommodations just for
a lifting restriction related to pregnancy; the PWFA would include
all of these accommodations as possibilities as well. Other possible
accommodations that would be available under the PWFA include
scheduling changes due to morning sickness or reassignment to a
vacant position. Under the ADA, ‘‘[a] qualified individual with a
disability may work part-time in his/her current position, or occa-
sionally take time off, as a reasonable accommodation if it would
not impose an undue hardship on the employer.’’ 114 Similarly,
leave is one possible accommodation under the PWFA, including
time off to recover from delivery. However, Section 2(4) of the
PWFA makes clear that an employer ‘‘cannot require a qualified
employee to take leave, whether paid or unpaid, if another reason-
able accommodation can be provided.’’ 115
EMPLOYERS ARE NOT REQUIRED TO PROVIDE REASONABLE
ACCOMMODATIONS THAT CREATE AN UNDUE HARDSHIP
As with the ADA, Section 2 of the PWFA does not require em-
ployers to provide reasonable accommodations that would impose
111 Id.
112 29 C.F.R. § 1630.2(o).
113 42 U.S.C. § 12111.
114 U.S. Equal Emp’t Opportunity Comm’n, The Family and Medical Leave Act, the ADA, and
Title VII of the Civil Rights Act of 1964 (1995), https://www.eeoc.gov/laws/guidance/family-and-
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medical-leave-act-ada-and-title-vii-civil-rights-act-1964.
115 H.R. 2694, 116th Cong. § 2(4) (2019) (as reported).
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an undue hardship on the employer. Under the ADA, an undue
hardship is a ‘‘significant difficulty or expense incurred by a cov-
ered entity, when considered in light of a variety of factors includ-
ing the structure and overall resources of the employer and the im-
pact of the accommodation on the operations of the covered enti-
ty.’’ 116 Moreover, although ‘‘undue hardship’’ under the ADA is al-
ways determined on a case-by-case basis, ‘‘[i]n general, a larger em-
ployer with greater resources would be expected to make accom-
modations requiring greater effort or expense than would be re-
quired of a smaller employer with fewer resources.’’ 117 Like the
ADA, the PWFA seeks to balance the interests of the employer and
employee and, although there may be some costs associated with
making a reasonable accommodation, the ‘‘undue hardship’’ stand-
ard limits the employer’s exposure both to overly burdensome ac-
commodation requests and lawsuits that would attempt to hold the
employer liable for failing to provide a prohibitively expensive ac-
commodation.
THE PREGNANT WORKERS FAIRNESS ACT USES THE AMERICANS WITH
DISABILITIES ACT OF 1990’S ‘‘INTERACTIVE PROCESS’’ FOR REASON-
ABLE ACCOMMODATIONS
The PWFA explicitly references the ‘‘interactive process’’ that has
long been used under the ADA—and even before that under Sec-
tion 504 of the Rehabilitation Act of 1973 118—to determine an ef-
fective reasonable accommodation.119 In the context of the ADA,
the interactive process ‘‘simply means that employers and employ-
ees with disabilities who request accommodations work together to
come up with accommodations.’’ 120 In some cases under the PWFA,
the worker will request an accommodation that will easily address
a known limitation of pregnancy, rendering the ‘‘interactive proc-
ess’’ either unnecessary or virtually non-existent. For example, a
pregnant worker who is in the last trimester of her pregnancy who
usually stands to do her job may request a stool to sit on. In this
case, the worker’s pregnancy is likely known to the employer or
readily apparent, and the solution is inexpensive, readily available,
and—depending on the exact nature of the job minimally disruptive
to the employer’s operation. As Ms. Bakst stated at the October
22nd Hearing:
The beauty of the flexible reasonable accommodation
standard within the PWFA is that it makes no assump-
tions about what pregnant workers may need or not need,
and therefore it ensures that the law does not perpetuate
gender inequality by providing women with overly broad
and unnecessary protections. Instead, in recognition that
every pregnancy and workplace is different, the PWFA re-
quires only an interactive process between employer and
employee to determine whether a reasonable accommoda-
116 29 C.F.R. § 1630.2.
117 What is Considered an ‘‘Undue Hardship’’ for a Reasonable Accommodation?, ADA National
Network, https://adata.org/faq/what-considered-undue-hardship-reasonable-accommodation (last
visited Mar. 19, 2020).
118 29 U.S.C. § 701.
119 See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir 2000), rev’d on other
grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
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120 Accommodation and Compliance: Interactive Process, Job Accommodation Network, https://
askjan.org/topics/interactive.cfm (last visited Mar. 19, 2020).
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30
tion will allow the worker to continue working without
jeopardizing her health.121
However, under the ADA, there may be times when the ‘‘inter-
active process’’ is critical to providing reasonable accommodations,
and an employer may be committing a prohibited act of discrimina-
tion if it fails to engage in the interactive process in good faith. In
interpreting the ADA, one court noted, ‘‘[t]he ADA imposes upon
employers a good-faith duty to engage [with their employees] in an
interactive process to identify a reasonable accommodation. This
duty is triggered when an employee communicates her disability
and desire for an accommodation—even if the employee fails to
identify a specific, reasonable accommodation.’’ 122 This good-faith
duty will apply to employers under the PWFA.
Under the PWFA, once an employer has been made aware of a
‘‘known limitation’’ related to pregnancy, childbirth, or a related
medical condition, the employer will be required to engage with the
employee in the process of identifying a reasonable accommodation.
According to the JAN, there are six steps to the interactive process
under the ADA: recognizing the request, gathering information in-
cluding documentation of disability, exploring accommodation op-
tions, choosing an accommodation, implementing the accommoda-
tion, and monitoring the effectiveness of the accommodation.123
Under the PWFA, the interactive process would operate in a
similar way for pregnant workers as it has for decades under the
ADA. Both the employer and employee are responsible for engaging
in the interactive process in good faith. Not all of the steps are re-
quired in determining reasonable accommodations for pregnant
workers; oftentimes, the interactive process can take place in a
short amount of time.
An employee who fails to engage in the interactive process may
not later claim that their employer failed to accommodate their dis-
ability under the ADA, or the known limitations of pregnancy
under the PWFA; numerous courts have rejected claims under the
ADA on these grounds.124 Additionally, an employer will not be lia-
ble for failure to engage in the interactive process if the employee
ultimately fails to demonstrate the existence of a reasonable accom-
modation that would allow her to perform the essential functions
of the position.125
THE PREGNANT WORKERS FAIRNESS ACT PROVIDES CLARITY FOR
EMPLOYERS
As of September 2020, 30 states, the District of Columbia, and
4 cities require employers to provide accommodations to pregnant
workers. Still, workers and employers face a patchwork of state
and local laws that leave many pregnant workers with no protec-
tions at all. Ms. Wilbur urged Congress to create a federal standard
during the October 22nd Hearing, ‘‘Greater Louisville is home to
many multi-state businesses and corporate headquarters, so the
121 Bakst Testimony at 23.
122 Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 (4th Cir. 2015)
123 Accommodation and Compliance: Interactive Process, Job Accommodation Network, https://
askjan.org/topics/interactive.cfm (last visited Mar. 19, 2020).
124 Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 225 (5th Cir. 2011) (quoting Loulseged
v. Akzo Nobel Inc., 178 F.3d 731, 734 (1999)).
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125 Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 (4th Cir. 2015) (internal
quotation marks omitted).
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31
ability to have uniformity related to pregnant worker accommoda-
tions throughout our region and entire country is important. There-
fore, [Greater Louisville Inc.—The Metro Chamber of Commerce]
urges Congress to advance the PWFA at the federal level.’’ 126
By guaranteeing pregnant workers the right to reasonable ac-
commodations in the workplace, the PWFA could also decrease em-
ployers’ legal uncertainty. Ms. Wilbur attested to this at the Octo-
ber 22nd Hearing:
The PWFA also gives much-needed clarity because it ex-
plicitly provides ‘reasonable accommodations’ for pregnant
and new mothers, in addition to the proper procedures for
providing them, thereby increasing the potential to resolve
requests for accommodations quickly and informally (as
employers have done for decades for workers with disabil-
ities) and reducing the potential for costly litigation. We
believe that the Act will lead to a reduction, not an in-
crease, in litigation for precisely this reason. At least two
states with pregnant worker accommodation laws have re-
ported a reduction in litigation since the laws went into ef-
fect. Before Kentucky’s law was enacted this summer, our
employers were forced to navigate a complex web of federal
laws and court decisions to figure out what their obliga-
tions are when it comes to appropriately accommodating
pregnant workers and new mothers. Clearly defining what
constitutes ‘reasonable accommodations’ and when an em-
ployer is and is not obligated to provide them will estab-
lish important guidance for businesses, especially the
smaller and mid-size companies we represent who cannot
afford expensive legal advisors.127
The PWFA would provide clarity and uniformity for employers
and would not come at significant cost to employers. The JAN
found that ‘‘fifty-seven percent of requested accommodations by em-
ployees were granted at no cost, while thirty-six percent of employ-
ers reported a one-time cost.’’ 128
THE PREGNANT WORKERS FAIRNESS ACT DOES NOT ALTER RELIGIOUS
EXEMPTIONS THAT MAY EXIST UNDER CURRENT LAW
The PWFA does not change existing exemptions for religious em-
ployers under current law.129 Further, the PWFA remains neutral
with respect to claims that may be brought under the Religious
126 Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694) Before the
Subcomm. on Civil Rights & Human Servs. of the H. Comm. on Educ. & Labor, 116th Cong.
(2019) (Written testimony of Iris Wilbur, Vice President of Government Affairs & Public Policy,
Greater Louisville Inc.—The Metro Chamber of Commerce, at 2).
127 Id.
128 Job Accommodation Network, Workplace Accommodations: Low Cost, High Impact 3 (2019)
https://askjan.org/publications/Topic-
Downloads.cfm?pubid=962628&action=download&pubtype=pdf.
129 Religious employers may be afforded a limited exemption from, for example, Title VII of
the Civil Rights Act of 1964’s prohibition on religious discrimination. See e.g., Rayburn v. Gen.
Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (‘‘The language and the
legislative history of Title VII both indicate that the statute exempts religious institutions only
to a narrow extent.’’) Furthermore, the constitutional ‘‘ministerial exception’’ applies to employ-
ees of houses of worship and religious schools who carry out important religious functions at
houses of worship and religious schools. Although the types of positions that are covered by the
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‘‘ministerial exception’’ are limited, it allows religious employers to disregard altogether Title VII
and other civil rights employment laws for those positions.
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32
Freedom Restoration Act (RFRA) 130 and does not include language
exempting PWFA-covered employers from RFRA’s provisions. Al-
though religious employers may claim that a required accommoda-
tion is a substantial burden on their free exercise of religion under
RFRA, fundamentally the Committee believes that nondiscrimina-
tion provisions are a compelling government interest and the least
restrictive means to achieve the policy of equal employment oppor-
tunity. Moreover, even though this Administration seeks to erro-
neously use RFRA to undermine nondiscrimination provisions, 131
RFRA cannot and should not be used to create exemptions that
would harm the rights of an employee.132
THE PREGNANT WORKERS FAIRNESS ACT ENJOYS BROAD BIPARTISAN
SUPPORT
According to a recent poll, 89 percent of voters favor the PWFA,
with 69 percent of voters strongly favoring it.133 The PWFA has
‘‘high levels of support across the political spectrum including Re-
publicans (81%), Independents (86%), and Democrats (96%) along
with Trump voters (80%) and Clinton voters (97%), very conserv-
ative voters (80%), and liberals (95%).’’ 134
The PWFA is about ensuring that pregnant workers can stay
safe and healthy on the job by being provided reasonable accom-
modations for pregnancy, childbirth, or related medical conditions
unless those accommodations are an undue burden for the em-
ployer. The PWFA is one crucial step needed to reduce the dispari-
ties pregnant workers face by ensuring that pregnant women, and
especially pregnant women of color, can remain safe and healthy
at work.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This section states that the title of the bill is the Pregnant Work-
ers Fairness Act (the Act or this Act).
Section 2. Nondiscrimination with regard to reasonable accom-
modations related to pregnancy
This section makes it unlawful for a covered entity to:
• Fail to provide reasonable accommodations for pregnant
workers (Pregnant workers covered under the Act are those
qualified employees with known limitations related to preg-
nancy, childbirth, or related medical conditions. Covered enti-
130 42 U.S.C. § 2000bb.
131 U.S. Department of Labor, Guidance Regarding Federal Grants and Executive Order
13798, https://www.dol.gov/agencies/oasam/grants/religious-freedom-restoration-act (last visited
July 7, 2020).
132 The Establishment Clause of the First Amendment limits the government’s ability to pro-
vide religious exemptions from generally applicable laws for religious or moral reasons. The
Constitution requires that any ‘‘accommodation must be measured so that it does not override
other significant interests’’ or have a ‘‘detrimental effect on any third party.’’ Cutter v.
Wilkinson, 544 U.S. 709, 722 (2005); Burwell v. Hobby Lobby Stores, Inc., 123 S. Ct. 2751, 2781
n. 37 (citing Cutter, 544 U.S. at 720). Providing such an exemption under the PWFA would un-
doubtedly cause harm to women.
133 Brian Nienaber, The Tarrance Group, Pregnant Workers Fairness Act Survey Memo 2
(2020) https://www.aclu.org/sites/default/files/field_document/pwfa_survey_memo_2-20-
dlhill on DSK120RN23PROD with HEARING
20_1_1_2.pdf.
134 Id.
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ties do not have to provide reasonable accommodations if doing
so would cause them undue hardship.);
• Require pregnant workers to accept an accommodation
other than a reasonable accommodation arrived at through the
interactive process (as set forth in Section 5);
• Deny employment opportunities to pregnant workers be-
cause of the need for a reasonable accommodation;
• Require a pregnant worker to take paid or unpaid leave if
another reasonable accommodation can be provided; or
• Take adverse employment actions against a pregnant
worker for requesting or using a reasonable accommodation.
Section 3. Remedies and enforcement
In general under this section, pregnant workers alleging preg-
nancy discrimination under the Act shall have the same rights and
remedies available to those employees alleging discrimination on
the basis of race, color, religion, sex, or national origin under Title
VII of the Civil Rights Act of 1964,135 the Congressional Account-
ability Act of 1995,136 Chapter 5 of Title 3 of the United States
Code,137 Section 717 of the Civil Rights Act of 1964,138 and the
Government Employee Rights Act of 1991.139 Remedies include eq-
uitable relief, including back pay, and reasonable attorney’s fees.
Claimants may also be awarded compensatory and punitive dam-
ages.140
Prohibition Against Retaliation. The Act makes it unlawful to co-
erce, intimidate, threaten, or interfere with any individual who has
exercised rights provided under the Act or who has helped another
individual exercise rights provided under the Act.
Limitation. The Act provides covered entities with a good faith
defense. The Act provides that damages may not be awarded if the
covered entity demonstrates good faith in engaging in the inter-
active process with the pregnant worker to identify and make a
reasonable accommodation. This provision mirrors a similar provi-
sion under the Americans with Disabilities Act of 1990.141
Section 4. Rulemaking
This section requires the EEOC to issue regulations, including
examples of reasonable accommodations under the Act, within two
years.
Section 5. Definitions
This section defines the following key terms used throughout the
Act.
Commission. The term Commission refers to the Equal Employ-
ment Opportunity Commission (EEOC).
135 42 U.S.C. § 2000e.
136 2 U.S.C. § 1301.
137 3 U.S.C. § 411.
138 42 U.S.C. § 2000e–16.
139 42 U.S.C. § 2000e–16b.
140 Punitive damages generally cannot be awarded to employees of the legislative, judicial, or
executive branch. Compensatory and punitive damages are subject to statutory caps. For em-
ployers with 15–100 employees, the limit is $50,000. For employers with 101–200 employees,
the limit is $100,000. For employers with 201–500 employees, the limit is $200,000. For employ-
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ers with more than 500 employees, the limit is $300,000.
141 42 U.S.C. § 12101.
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Covered Entity. A covered entity includes a private sector em-
ployer who has 15 or more employees, employment agencies, labor
organizations, legislative branch employers, executive branch em-
ployers, governmental agencies (including state and local govern-
ments and the government of the District of Columbia), political
subdivisions, units of the judicial branch of the Federal Govern-
ment having positions in the competitive service, and the offices of
state and local elected officials.
Employee. An employee is someone who is employed by a private-
sector employer; this includes job applicants. The term employee
also includes those in the legislative branch; the executive branch;
certain federal judicial branch employees (those with positions in
the competitive service); and state and local government employees,
including those who work for elected officials.
Person. A person is defined the same way such term is defined
under Title VII of the Civil Rights Act of 1964.
Known Limitation. A known limitation means a physical or men-
tal condition related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions that the employee has
communicated to the employer, whether or not such limitation
meets the definition of disability outlined in the Americans with
Disabilities Act of 1990.
Qualified Employee. A qualified employee is an employee, or job
applicant, who, with or without reasonable accommodation, can
perform the essential functions of the job (essential function). An
individual is considered qualified if any inability to perform an es-
sential function is for a temporary period, the essential function
could be performed in the near future, and the inability to perform
the essential function can be reasonably accommodated.
Reasonable Accommodation. A reasonable accommodation is de-
fined the same way such term is defined under the Americans with
Disabilities Act of 1990. This definition adopts the requirement for
a good faith interactive negotiation between employers and employ-
ees to determine a reasonable accommodation (interactive process).
Under the Act, reasonable accommodations would be provided in
light of known limitations related to pregnancy, rather than a dis-
ability.
Undue Hardship. An undue hardship is defined the same way
such term is defined under the Americans with Disabilities Act of
1990. An undue hardship means an action requiring significant dif-
ficulty or expense, when considering factors such as the nature and
cost of the accommodation and the employer’s overall financial re-
sources.
Section 6. Waiver of State Immunity
This section makes clear that States shall not be immune from
the Act under the 11th amendment to the U.S. Constitution.
Section 7. Relationship to Other Laws
This section makes clear that nothing in the Act limits pregnant
workers’ rights under a federal, State, or local law that provides
greater or equal protection.
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Section 8. Severability
This section states that if any portion of the Act is found uncon-
stitutional, the remainder of the Act shall not be affected.
EXPLANATION OF AMENDMENTS
The amendments, including the amendments in the nature of a
substitute, are explained in the descriptive portions of this report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Pursuant to section 102(b)(3) of the Congressional Accountability
Act of 1995, Pub. L. No. 104–1, H.R. 2694, as amended, applies to
terms and conditions of employment within the legislative branch.
Section 5(2)(B)(i) includes an employing office as defined by section
101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301)
and section 411(c) of title 3, United States Code, in the definition
of a ‘‘covered entity.’’
UNFUNDED MANDATE STATEMENT
Pursuant to Section 423 of the Congressional Budget and Im-
poundment Control Act of 1974, Pub. L. No. 93–344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of 1995,
Pub. L. No. 104–4), the Committee traditionally adopts as its own
the cost estimate prepared by the Director of the Congressional
Budget Office (CBO) pursuant to section 402 of the Congressional
Budget and Impoundment Control Act of 1974. The Committee re-
ports that because this cost estimate was not timely submitted to
the Committee before the filing of this report, the Committee is not
in a position to make a cost estimate for H.R. 2694, as amended.
EARMARK STATEMENT
In accordance with clause 9 of rule XXI of the Rules of the House
of Representatives, H.R. 2694 does not contain any congressional
earmarks, limited tax benefits, or limited tariff benefits as de-
scribed in clauses 9(e), 9(f), and 9(g) of rule XXI.
ROLL CALL VOTES
In compliance with clause 3(b) of rule XIII of the Rules of the
House of Representatives, the Committee advises that the following
roll call votes occurred during the Committee’s consideration of
H.R. 2694:
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STATEMENT OF PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause (3)(c) of rule XIII of the Rules of the House
of Representatives, the goals of H.R. 2694 are to establish an af-
firmative right to reasonable accommodations for workers with
known limitations relating to childbirth, pregnancy, or related
medical conditions without imposing an undue hardship for em-
ployers.
DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the House
of Representatives, the Committee states that no provision of H.R.
2694 establishes or reauthorizes a program of the Federal Govern-
ment known to be duplicative of another federal program, a pro-
gram that was included in any report from the Government Ac-
countability Office to Congress pursuant to section 21 of Public
Law 111–139, or a program related to a program identified in the
most recent Catalog of Federal Domestic Assistance.
HEARINGS
Pursuant to section 103(i) of H. Res. 6 for the 116th Congress,
on October 22, 2019, the Committee on Education and Labor’s Sub-
committee on Civil Rights and Human Services held a hearing en-
titled ‘‘Long Over Due: Exploring the Pregnant Workers Fairness
Act (H.R. 2694),’’ which was used to consider H.R. 2694. The hear-
ing explored the health and economic effects of pregnant workers’
lack of access to reasonable accommodations and examined how
H.R. 2694 would fill a gap in the existing legal framework by guar-
anteeing pregnant workers the right to reasonable workplace ac-
commodations. The Committee heard testimony from: The Honor-
able Jerrold Nadler (D–NY–10); Michelle Durham, former Emer-
gency Medical Technician (EMT), Arab, AL; Iris Wilbur, Vice Presi-
dent of Government Affairs and Public Policy at Greater Louisville
Inc.—The Metro Chamber of Commerce, Louisville, KY; Dina
Bakst, Co-Founder and Co-President of A Better Balance, New
York, NY; and Ellen McLaughlin, Partner at Seyfarth Shaw LLP,
Chicago, IL.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF
THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1)
of rule X of the Rules of the House of Representatives, the Commit-
tee’s oversight findings and recommendations are reflected in the
descriptive portions of this report.
NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the House
of Representatives and section 308(a) of the Congressional Budget
and Impoundment Control Act of 1974, and pursuant to clause
3(c)(3) of rule XIII of the Rules of the House of Representatives and
section 402 of the Congressional Budget and Impoundment Control
Act of 1974, the Committee has requested but not received a cost
estimate for the bill from the Director of the Congressional Budget
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COMMITTEE COST ESTIMATE
Clause 3(d)(1) of rule XIII of the Rules of the House of Rep-
resentatives requires an estimate and a comparison of the costs
that would be incurred in carrying out H.R. 2694. However, clause
3(d)(2)(B) of that rule provides that this requirement does not
apply when the committee has included in its report a timely sub-
mitted cost estimate of the bill prepared by the Director of the Con-
gressional Budget Office under section 402 of the Congressional
Budget and Impoundment Control Act of 1974. The Committee re-
ports that because this cost estimate was not timely submitted to
the Committee before the filing of this report, the Committee is not
in a position to make a cost estimate for H.R. 2694, as amended.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
The bill does not change existing law for purposes of clause 3(e)
of rule XIII of the Rules of the House of Representatives.
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MINORITY VIEWS
INTRODUCTION
Committee Republicans unequivocally believe that discrimination
of any kind is abhorrent and should not be tolerated, and that un-
lawful discrimination should not be permitted. This is why federal
laws are already in place to protect workers from discrimination in
the workplace, including discrimination because of pregnancy.
Prior to the Committee markup of H.R. 2694 on January 14,
2020, significant progress was made negotiating a bipartisan com-
promise, and Committee Republicans commend Chairman Robert
C. ‘‘Bobby’’ Scott (D–VA) for his willingness to negotiate on several
issues. The Chairman’s Amendment in the Nature of a Substitute
(Scott ANS) addressed a number of important concerns raised by
Republicans, resulting in a much-improved product. However, one
significant issue remains to be addressed in H.R. 2694 relating to
protections for religious organizations.
PURPOSE OF H.R. 2694
H.R. 2694 is a stand-alone bill that would create a new statute.
H.R. 2694 makes it unlawful for an employer not to provide reason-
able accommodations for known limitations related to the preg-
nancy, childbirth, or related medical conditions of an employee or
applicant unless the employer can demonstrate that the accommo-
dation would impose an undue hardship on the operation of the
business.1 H.R. 2694 is intended to address perceived shortcomings
in the Supreme Court’s 2015 decision in Young v. United Parcel
Service, Inc. (Young).2 The Supreme Court in that case applied the
requirements of the Pregnancy Discrimination Act of 1978 (PDA),
which is part of Title VII of the Civil Rights Act of 1964 (CRA) and
states that discrimination because of ‘‘sex’’ includes discrimination
because of ‘‘pregnancy, childbirth, or related medical conditions;
and women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related
purposes . . . as other persons not so affected but similar in their
ability or inability to work.’’ 3
In Young, a part-time driver for United Parcel Service (UPS)
named Peggy Young requested an accommodation of light duty due
to her pregnancy and her doctor’s recommendation that she not lift
over 20 pounds. UPS refused the request and did not allow her to
return to work because lifting over 20 pounds was an essential
function of her job. Notably, UPS accommodated on-the-job injuries
with light-duty assignments but did not offer light duty to employ-
ees who had medical conditions unrelated to a work injury. UPS
1 H.R. 2694, 116th Cong. § 2(1) (2019).
2 575 U.S. 206 (2015).
3 42 U.S.C. § 2000e(k).
(49)
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based its decision on the provisions of a collective bargaining agree-
ment.4
The Supreme Court ruled in favor of Ms. Young, vacating the
judgment of the lower court, and held that a pregnant employee
can potentially establish discrimination under the PDA by alleging
the employer denied a request for an accommodation and the em-
ployer accommodated others similar in their ability or inability to
work. Under the PDA, a plaintiff can reach a jury by showing ‘‘the
employer’s policies impose a significant burden on pregnant work-
ers’’ and the employer’s non-discriminatory reasons for the policies
are not ‘‘sufficiently strong to justify the burden.’’ 5 Differential
treatment between pregnant workers and other workers is a factor
in determining whether the employer’s policies impose a significant
burden on pregnant workers and whether the employer’s non-dis-
criminatory reasons are sufficiently strong to justify the burden.
However, the Court did not agree that pregnancy accommodations
must automatically be provided to the same extent as any other ac-
commodations, including on-the-job injury accommodations. In ad-
dition, the Court noted that statutory changes to Title I of the
Americans with Disabilities Act of 1990 (ADA) in the Americans
with Disabilities Act Amendments Act of 2008, which were made
after the facts at issue in Young, ‘‘may limit the future signifi-
cance’’ of the Court’s interpretation of the PDA because Congress
‘‘expanded the definition of ‘disability’ under the ADA to make
clear that ‘physical or mental impairment[s] that substantially
limi[t]’ an individual’s ability to lift, stand or bend are ADA-covered
disabilities.’’ 6
H.R. 2694 explicitly requires a reasonable accommodation for
known limitations related to pregnancy, childbirth, or related med-
ical conditions without reference to whether other workers’ limita-
tions, injuries, or impairments have been accommodated, but it
does so in a stand-alone bill that does not amend the PDA or the
ADA.
NEGOTIATED IMPROVEMENTS TO H.R. 2694
Essential Functions Requirement
At a hearing on H.R. 2694 on October 22, 2019, Representative
Jerrold Nadler (R–NY), the bill’s author, testified before the Sub-
committee on Civil Rights and Human Services that the legislation
uses ‘‘the framework and language of the ADA.’’ 7 Accordingly, H.R.
2694 incorporates the ADA definitions of ‘‘reasonable accommoda-
tion’’ and ‘‘undue hardship.’’ 8 The ADA prohibits employment dis-
crimination ‘‘on the basis of disability,’’ which can include ‘‘not
making reasonable accommodations to the known physical or men-
4 In 2014, UPS changed its policy to make pregnant employees eligible for light-duty assign-
ments prior to oral argument at the Supreme Court, but the Court proceeded with the case.
Brief for Respondent at 11, Young v. United Parcel Serv., 575 U.S. 206 (2015) (No. 12–1226).
5 575 U.S. at 229.
6 Id. at 218–19. The plaintiff did not petition the Supreme Court to review whether UPS had
violated the ADA. The Court noted that the Equal Employment Opportunity Commission
(EEOC) issued regulations in 2014 interpreting the ADA to require employers to accommodate
employees whose temporary lifting restrictions originated off the job. Id. at 219.
7 Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694): Hearing Before
the Subcomm. on Civ. Rights & Hum. Serv. of the H. Comm. on Educ. & Lab., 116th Cong.
(2019) (written statement of Rep. Jerrold Nadler at 4).
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tal limitations of an otherwise qualified individual with a dis-
ability.’’ 9 However, to qualify for potential protection under the
ADA, the employee or applicant must be able to ‘‘perform the es-
sential functions of the employment position,’’ ‘‘with or without rea-
sonable accommodation.’’ 10
H.R. 2694 as introduced did not include a requirement that the
employee or applicant be able to perform the essential functions of
the job, with or without reasonable accommodation. Ms. Ellen
McLaughlin, a partner with Seyfarth Shaw LLP specializing in
labor and employment law, raised significant concerns with this
omission, calling it a ‘‘key provision of the ADA’’ when she testified
before the Subcommittee on Civil Rights and Human Services. She
stated:
The types of accommodation that an employer must pro-
vide under the ADA are numerous and defined, but they
do not extend to accommodating an employee who remains
unable to perform the essential functions of the job even
with those accommodations. By eliminating the essential
function criteria, the Bill appears to require employers to
take steps to keep the employee on the job regardless of
her ability to continue to perform the core functions of the
job. The consequences for employers—and employees—are
unclear. Does this require an employer to keep an em-
ployee in a position despite being unable to perform the
core tasks associated with that position—effectively allow-
ing the employee to report for work but not do the job? If
an employee cannot work mandatory overtime due to preg-
nancy and mandatory overtime is clearly an essential job
function, is the pregnant employee—unlike the employee
with a disability under the ADA—excused from working
the mandatory overtime? Or does it require an employer to
reassign the employee to a totally different position and, if
so, can the employer make appropriate wage adjustments
to reflect the compensation in that job? 11
To address these concerns, the Scott ANS adds a requirement
that the employee or applicant be ‘‘qualified,’’ meaning the indi-
vidual, ‘‘with or without reasonable accommodation, can perform
the essential functions of the employment position.’’ 12 In addition,
to address concerns from supporters of H.R. 2694 that workers
with known limitations related to pregnancy who are temporarily
unable to perform an essential function be able to receive an ac-
commodation, the Scott ANS includes an exception that an em-
ployee or applicant ‘‘shall be considered qualified if—(A) any inabil-
ity to perform an essential function is for a temporary period; (B)
the essential function could be performed in the near future; and
9 42 U.S.C. § 12112(a), (b)(5).
10 Id. § 12111(8).
11 Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694): Hearing Before
the Subcomm. on Civ. Rights & Hum. Serv. of the H. Comm. on Educ. & Lab., 116th Cong.
(2019) (written statement of Ellen McLaughlin, Partner, Seyfarth Shaw LLP, at 7–8) (emphasis
in original) [hereinafter McLaughlin Statement].
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(C) the inability to perform the essential function can be reasonably
accommodated.’’ 13
This compromise language maintains the ADA essential-function
requirement while indicating it is also appropriate to consider
other ADA forms of reasonable accommodation such as ‘‘job restruc-
turing, part-time or modified work schedules, reassignment to a va-
cant position, acquisition or modification of equipment or devices,
. . . and other similar accommodations’’—which are incorporated
in H.R. 2694 through its adoption of the ADA definition of reason-
able accommodation—as well as leave.14 The ‘‘essential functions’’
language in the Scott ANS thus incorporates the ADA concept of
‘‘essential functions’’ in H.R. 2694, although temporary limitations
related to pregnancy must also be considered when determining the
appropriate reasonable accommodation. Moreover, under the Scott
ANS, to trigger the exception to the essential functions require-
ment, the limitation must be ‘‘temporary,’’ the essential function at
issue must be something that would be performed in the ‘‘near fu-
ture,’’ and the limitation can be ‘‘reasonably accommodated,’’ which
could include leave. The Scott ANS therefore does not require an
employer to allow an employee to report for work but not do the
job.
A key part of the ADA interactive process that takes place be-
tween a worker and employer to determine a reasonable accommo-
dation is often a discussion of the essential functions of the work-
er’s job. Establishing what are and are not essential functions is
often critical in determining whether the employee can stay in the
current position with a reasonable accommodation or whether an-
other accommodation—such as job restructuring, a modified work
schedule, reassignment to a vacant position, or leave—is needed. In
its definition of the term ‘‘qualified individual,’’ the ADA states that
‘‘consideration shall be given to the employer’s judgment as to what
functions of a job are essential, and if an employer has prepared
a written description before advertising or interviewing applicants
for the job, this description shall be considered evidence of the es-
sential functions of the job.’’ 15 This is a practical, commonsense
provision in the ADA because it is the employer who must ulti-
mately choose the duties and assignments of each position so that
the enterprise as a whole can function and thrive. Under H.R.
2694, courts will also need to consider the employer’s judgment re-
garding the essential functions of the job.
Like the ADA, H.R. 2694 does not require ‘‘red circle’’ rates of
pay for employees reassigned to vacant positions as reasonable ac-
commodations. A red circle pay rate is a higher-than-normal pay
rate for the job classification. Under the ADA and H.R. 2694, if a
reasonable accommodation consists of reassignment to a vacant po-
sition, the pay can be commensurate with the vacant position’s nor-
mal rate, even if this pay rate is lower than the rate for the em-
ployee’s current position.16
13 Id.
14 42 U.S.C. § 12111(9)(B); see also EEOC, EMPLOYER-PROVIDED LEAVE AND THE AMERICANS
WITH DISABILITIES ACT (‘‘Granting Leave as a Reasonable Accommodation’’).
15 42 U.S.C. § 12111(8).
16 See, e.g., JOB ACCOMMODATION NETWORK, TECHNICAL ASSISTANCE MANUAL FOR TITLE I OF
THE ADA ch. 3.10.5, https://askjan.org/publications/ada-specific/Technical-Assistance-Manual-for-
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Definition of Known Limitations
The ADA includes a broad, comprehensive definition of ‘‘dis-
ability’’ so that workers and employers understand what impair-
ments are covered by the statute.17 In contrast, H.R. 2694 as intro-
duced did not define ‘‘known limitations’’ related to pregnancy,
childbirth, and related medical conditions. Ms. McLaughlin in her
testimony explained why a definition of this central term in H.R.
2694 is needed:
The phrase ‘‘known limitations’’ is clearly different than
the definition of a covered disability under the ADA, and
appears to be an express rejection of that term. While the
definitions of the ADA may be imperfect, they have been
interpreted and analyzed by courts over a period of years,
and employers are familiar with and have been applying
the ADA standards for some time. The decision to not
cross-reference the ADA indicates that a different scope of
coverage is intended by the drafters of the Bill. It is en-
tirely unclear, however, what scope of coverage is in-
tended, and precisely how that coverage differs from a cov-
ered disability under the ADA. Given the language of the
Bill, it appears that any limitation of any type is covered,
as long as the employer is aware of it.18
To address these concerns, the Scott ANS includes a definition
of ‘‘known limitation,’’ although this definition is far from being as
detailed or specific as the ADA definition of ‘‘disability.’’ The Scott
ANS defines ‘‘known limitation’’ as a ‘‘physical or mental condition
related to, affected by, or arising out of pregnancy, childbirth, or re-
lated medical conditions that the employee or employee’s represent-
ative has communicated to the employer whether or not such condi-
tion meets the definition of disability specified in section 3 of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12102).’’ 19 Thus
the ‘‘known limitation’’ must be a ‘‘physical or mental condition’’ re-
lated to pregnancy, and it must be communicated to the employer,
who is not under an obligation to guess or take affirmative steps
to find out whether the worker has a limitation.
The Scott ANS definition confirms that ‘‘known limitation’’ goes
beyond the ADA definition of ‘‘disability’’ by stating the condition
can qualify ‘‘whether or not such condition meets the definition of
disability specified in [the ADA.]’’ Supporters of H.R. 2694 were
concerned that the already broad ADA definition of ‘‘disability’’ has
not been interpreted by all courts to include limitations associated
with pregnancy, including healthy pregnancies.
position and does not have to maintain the individual’s salary at the level of the higher-graded
position).
17 42 U.S.C. § 12102(1) (‘‘The term ‘disability’ means . . . a physical or mental impairment
that substantially limits one or more major life activities . . . .); id. § 12102(2)(A) (‘‘[M]ajor life
activities include, but are not limited to, caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working.’’); id. § 12102(2)(B) (‘‘[A] major
life activity also includes the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive functions.’’).
18 McLaughlin Statement, supra note 11, at 7.
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While the definition in the Scott ANS of ‘‘known limitation’’ falls
far short of the specificity and detail of the ADA definition of ‘‘dis-
ability,’’ this compromise language defining ‘‘known limitation’’ is
not completely open-ended and will give workers and employers
some guidance. As a backstop, H.R. 2694’s incorporation of the
ADA definition of ‘‘reasonable accommodation’’ places a limit on an
employer’s obligations—i.e., the requested accommodation must be
reasonable and proportional under the bill. A minor limitation will
presumably only require a minor accommodation.
Interactive Process
Under the ADA, a reasonable accommodation will often be deter-
mined through a balanced, interactive process involving dialogue
between the worker and the employer.20 H.R. 2694 incorporates the
definition of ‘‘reasonable accommodation’’ from the ADA, including
a reference to the interactive process that is typically used.21 How-
ever, Sections 2(2) and 2(4) of H.R. 2694 as introduced seem to give
the employee unilateral veto power over offered accommodations, in
contrast to the ADA’s balanced, interactive process for determining
reasonable accommodations.22 Ms. McLaughlin raised concerns
about Section 2(2) in her testimony:
The Bill also includes a provision that allows an em-
ployee to not accept an accommodation offered by the em-
ployer. . . . Does this provision really contemplate that
the employee can veto an accommodation proposed by the
employer? Are there any limits to that veto right? For ex-
ample, what if the employer believes in good faith that the
employee cannot safely perform the job, for herself or oth-
ers, without that specific accommodation? . . . [A]n em-
ployer may want to impose a restriction on the amount of
weight that can be lifted by an employee in the second or
third trimester based on medical documentation. Can the
employer only do so with the employee’s approval? 23
She had similar concerns with Section 2(4), which seems to give
the employee unilateral veto power over an offered accommodation
of leave:
[T]he Bill contemplates that a pregnant employee cannot
be required to go on leave if another accommodation would
address the ‘‘known limitations’’ of that employee. . . .
What if the pregnant worker is still physically capable of
20 See 29 C.F.R. § 1630.2(o)(2)(3) (‘‘To determine the appropriate reasonable accommodation it
may be necessary for the covered entity to initiate an informal, interactive process with the indi-
vidual with a disability in need of the accommodation. This process should identify the precise
limitations resulting from the disability and potential reasonable accommodations that could
overcome those limitations.’’).
21 See H.R. 2694, 116th Cong. § 5(5) (2019) (‘‘[T]he terms ‘reasonable accommodation’ and
‘undue hardship’ have the meanings given such terms in section 101 of the [ADA] and shall be
construed as such terms have been construed under such Act and as set forth in the regulations
required by this Act, including with regard to the interactive process that will typically be used
to determine an appropriate reasonable accommodation.’’).
22 See H.R. 2694, 116th Cong. § 5(2) (2019) (unlawful to ‘‘require a job applicant or employee
affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that
such applicant or employee chooses not to accept, if such accommodation is unnecessary to en-
able the applicant or employee to perform her job’’); id. § 5(4) (unlawful to ‘‘require an employee
to take leave, whether paid or unpaid, if another reasonable accommodation can be provided
to the known limitations related to the pregnancy, childbirth, or related medical conditions of
an employee’’).
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23 McLaughlin Statement, supra note 11, at 8 (emphasis in original).
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performing the job, but it would expose the fetus to unsafe
conditions, such as lead or radiation? Under circumstances
such as those, employers should be able to require the
pregnant worker not to report to the job site, but the Bill
appears to prohibit such a requirement.
It is also unclear what happens if the accommodation sought by
the employee creates an undue hardship on the employer. Using
the ADA scheme, the employer would be able to place the worker
on leave, but Section 2(4) of the Bill suggests that the employer
cannot place the worker on leave if an accommodation exists that
would address the ‘‘known limitation,’’ even if that accommodation
results in an undue hardship.24
To address these concerns, the Scott ANS amends Section 2(2) to
incorporate explicitly the ADA’s balanced, interactive process.
Under amended Section 2(2), it is unlawful to ‘‘require a qualified
employee affected by pregnancy, childbirth, or related medical con-
ditions to accept an accommodation other than any reasonable ac-
commodation arrived at through the interactive process referred to
in section 5(7) [of the Act].’’ This compromise language makes clear
that reasonable accommodations arrived at through the interactive
process, including an accommodation of leave, are not subject to a
unilateral veto by the employee. The longstanding and well-devel-
oped ADA interactive process will be the framework for accom-
modations under Sections 2(2) and 2(4).
In determining a reasonable accommodation under the ADA,
when a ‘‘need for an accommodation is not obvious,’’ an employer
may require the employee to provide medical ‘‘documentation of the
need for the accommodation.’’ 25 Because H.R. 2694 incorporates
the ADA definition of ‘‘reasonable accommodation,’’ including the
interactive process between the employee and employer typically
used to determine a reasonable accommodation, H.R. 2694 presum-
ably allows employers to require such documentation when the
need for an accommodation is not obvious.
In addition, the ADA includes a defense the employer can raise
if the employer has a ‘‘qualification standard’’ that includes a ‘‘re-
quirement that an individual shall not pose a direct threat to the
health or safety of other individuals in the workplace.’’ 26 The Su-
preme Court has ruled that this includes a direct threat that may
be posed to the individual’s own health or safety.27 The Occupa-
tional Safety and Health Administration has noted that ‘‘exposure
to reproductive hazards in the workplace is an increasing health
concern.’’ 28 Under H.R. 2694, if the workplace environment—such
as exposure to chemical, physical, or biological hazards—poses a
threat to the health or safety of the pregnant employee, the em-
ployer will be able to take into account such threats to health or
safety in determining a reasonable accommodation, including
through the interactive process with the employee.
24 McLaughlin Statement, supra note 11, at 8–9.
25 29 C.F.R. pt. 1630, App. at 37–38.
26 42 U.S.C. § 12113(b).
27 See Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 83 (2002).
28 U.S. DEP’T OF LAB., OCCUPATIONAL SAFETY & HEALTH ADMIN., REPRODUCTIVE HAZARDS,
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https://www.osha.gov/SLTC/reproductivehazards/index.html.
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Fifteen-employee Threshold
Title VII of the CRA and Title I of the ADA only apply to employ-
ers with 15 or more employees.29 H.R. 2694 did not include a simi-
lar limitation of coverage, even though the bill is intended to ad-
dress the Supreme Court’s 2015 decision in Young interpreting the
PDA (which is part of Title VII), and even though, as Rep. Nadler
testified, H.R. 2694 uses the framework of the ADA. To address
this omission and conform the bill to Title VII’s and the ADA’s cov-
erage, the Scott ANS limits H.R. 2694’s coverage to employers with
15 or more employees by incorporating this limitation from Section
701(b) of the CRA.30
Good Faith Efforts
The CRA states that damages shall not be awarded in ADA cases
if the employer ‘‘demonstrates good faith efforts, in consultation
with the person with the disability who has informed the covered
entity that accommodation is needed, to identify and make a rea-
sonable accommodation that would provide such individual with an
equally effective opportunity . . . .’’ 31 This is a sensible provision
in the CRA so that damages are not available if the employer has
made good faith efforts through the ADA interactive process to de-
termine a reasonable accommodation.
Such a provision was not included in H.R. 2694 as introduced,
but the Scott ANS adds a provision so that damages are not avail-
able under the bill if the employer has made good faith efforts
through the interactive process with the worker to determine a rea-
sonable accommodation for the worker’s known limitations related
to pregnancy, childbirth, and related medical conditions.32 The
Scott ANS conforms H.R. 2694’s remedies to the CRA’s remedies
and will further encourage employers to make good faith efforts to
determine reasonable accommodations under the bill through the
balanced, interactive process.
Rulemaking Authority
H.R. 2694 requires the Equal Employment Opportunity Commis-
sion (EEOC) to issue regulations within two years of the bill’s en-
actment. As introduced, the rulemaking section states: ‘‘Such regu-
lations shall provide examples of reasonable accommodations ad-
dressing known limitations related to pregnancy, childbirth, or re-
lated medical conditions that shall be provided to a job applicant
or employee affected by such known limitations unless the covered
entity can demonstrate that doing so would impose an undue hard-
ship.’’ 33
The italicized phrase is too prescriptive. It seems to indicate that
the examples of reasonable accommodations in EEOC’s regulation
are mandatory, even if they do not apply to the specific employer
and employee because of circumstances that are different than
those outlined in the example. To address this concern, the Scott
ANS strikes the phrase ‘‘that shall be provided to a job applicant
29 42 U.S.C. § 2000e(b); id. § 12111(5)(A).
30 Scott ANS § 5(2)(B)(i).
31 42 U.S.C. § 1981a(a)(3).
32 Scott ANS § 3(g).
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33 H.R. 2694, 116th Cong. § 4 (2019) (emphasis added).
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or employee affected by such known limitations unless the covered
entity can demonstrate that doing so would impose an undue hard-
ship.’’ This strike clarifies that the examples in the regulation are
merely examples of potential reasonable accommodations and not
mandatory.34
UNRESOLVED CONCERN WITH H.R. 2694
The CRA is the nation’s flagship civil rights law. Title VII of the
CRA includes a limited but longstanding provision stating that the
statute will not apply to a ‘‘religious corporation, association, edu-
cational institution, or society with respect to the employment of
individuals of a particular religion to perform work connected with
the carrying on by such corporation, association, educational insti-
tution, or society of its activities.’’ 35 This provision allows religious
organizations to make religiously based employment decisions so
they are not compelled to violate their faith. They can make em-
ployment decisions based on the worker’s religion conforming to the
organization’s religion, including following the religious tenets of
the organization,36 but the CRA provision is not a license to dis-
criminate in employment on other grounds.37 The CRA provision
applies to ‘‘the entire realm of the employment arena,’’ not just the
hiring of individuals.38 Title I of the ADA includes a similar provi-
sion.39
Neither H.R. 2694 as introduced nor the Scott ANS incorporate
the CRA religious-organization protection or any provision pro-
tecting religious organizations. During negotiations over H.R. 2694,
Committee Republicans requested inclusion of such a provision, but
it was not included in the Scott ANS. As Ranking Member Virginia
Foxx (R–NC) stated during the Committee markup, without such
a provision, H.R. 2694 could force a religious organization to make
employment decisions in violation of the organization’s faith.
For example, if an employee working for a religious organization
requests time off to have an abortion procedure, H.R. 2694 could
require the organization to comply with this request as a reason-
able accommodation of known limitations related to pregnancy,
childbirth, or related medical conditions. This accommodation could
be required to include paid leave if the employee is eligible for paid
medical leave as part of the employer’s workplace policies. These
kinds of accommodations, however, could be contrary to the organi-
zation’s religious beliefs, placing the organization in a position of
either violating federal law or violating its faith.
34 See Scott ANS § 4.
35 42 U.S.C. § 2000e–1(a).
36 See, e.g., Gosche v. Calvert High Sch., 997 F. Supp. 867, 872 (N.D. Ohio 1998) (religious
school could make adherence to moral standards of the church a requirement for continued em-
ployment), affirmed by 181 F.3d 101 (6th Cir. 1999).
37 See, e.g., Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir.
1985) (while ‘‘religious institutions may base relevant hiring decisions upon religious pref-
erences, Title VII does not confer upon religious organizations a license to make those same de-
cisions on the basis of race, sex, or national origin’’).
38 Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 238 F. Supp.2d 174, 180 (D.D.C.
2002).
39 42 U.S.C. § 12113(d) (‘‘This subchapter shall not prohibit a religious corporation, association,
educational institution, or society from giving preference in employment to individuals of a par-
ticular religion to perform work connected with the carrying on by such corporation, association,
educational institution, or society of its activities. . . . [A] religious organization may require
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that all applicants and employees conform to the religious tenets of such organization.’’).
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Religious-organization protections are a common feature of the
pregnancy-accommodation laws that have been enacted by states.
One of the Democrat-invited witnesses at the October 22, 2019,
Subcommittee on Civil Rights and Human Services hearing on H.R.
2694 pointed to Kentucky’s recently-enacted law requiring reason-
able accommodations for pregnant workers as a model of a success-
ful pregnant-worker accommodation law for Congress to consider.40
The Kentucky law includes a religious-organization protection very
similar to Title VII’s protection.41 At least 15 other states and the
District of Columbia have pregnancy-nondiscrimination or preg-
nancy-accommodation laws that include a religious-organization
protection similar to Title VII’s. The states include Arkansas, Ha-
waii, Iowa, Maine, Nebraska, New Jersey, New York, Ohio, Okla-
homa, South Carolina, Tennessee, Texas, Utah, Wisconsin, and
Wyoming.42
Committee Democrats contended during the markup of H.R.
2694 that religious organizations are already protected by the Reli-
gious Freedom Restoration Act of 1993 (RFRA), and inclusion of the
CRA’s religious-organization protection is unnecessary. RFRA
states that the federal government ‘‘shall not substantially burden
a person’s exercise of religion even if the burden results from a rule
of general applicability,’’ except that the government ‘‘may substan-
tially burden a person’s exercise of religion only if it demonstrates
that application of the burden to the person . . . is in furtherance
of a compelling governmental interest; and . . . is the least restric-
tive means of furthering that compelling governmental interest.’’
An organization ‘‘may assert’’ a violation of RFRA ‘‘as a claim or
defense in a judicial proceeding and obtain appropriate relief’’
against the government.43
Unfortunately, RFRA does not render the inclusion of a religious-
organization protection in H.R. 2694 unnecessary. The CRA’s provi-
sion provides important protections that are stronger than those
provided by RFRA. The CRA provision limits the statute’s applica-
tion with respect to religiously based employment decisions. Under
the CRA, the federal government and the courts cannot interfere
with these decisions if the organization is a religious organization
and its employment decisions are based on the organization’s reli-
gion. RFRA, on the other hand, merely provides a defense to gov-
ernmental action and creates a balancing test to determine wheth-
er the government may impose a burden on the exercise of religion.
Under RFRA, the federal government may substantially burden the
exercise of religion if it demonstrates the burden is in furtherance
of a compelling governmental interest and is the least restrictive
means of furthering that interest.
40 See Long Over Due: Exploring the Pregnant Workers’ Fairness Act (H.R. 2694): Hearing Be-
fore the Subcomm. on Civ. Rights & Hum. Serv. of the H. Comm. on Educ. & Lab. (2019) (state-
ment of Iris Wilbur, Vice President of Gov’t Affairs & Pub. Pol’y, Greater Louisville Inc.).
41 See KY. REV. STAT. ANN. § 344.090 (‘‘[I]t is not an unlawful practice for . . . [a] religious
corporation, association, or society to employ an individual on the basis of his religion to perform
work connected with the carrying on by such corporation, association, or society of its religious
activity.’’).
42 See ARK. CODE ANN. § 16–123–103; D.C. CODE § 2–1401.03; HAW. REV. STAT. § 378–3; IOWA
CODE § 216.6; ME. STAT. tit. § 5, § 4573–A; NEB. REV. STAT. § 48–1103; N.J. STAT. ANN. 10:5–
12; N.Y. EXEC. LAW § 296.11; OHIO REV. CODE ANN. § 4112.02(P); Okla. Stat. tit. 25, § 1307; S.C.
CODE ANN. § 1–13–80; TENN. CODE ANN. § 4–21–405; TEX. LAB. § 21.109; UTAH CODE ANN.
§ 34A–5–102(i); WISC. STAT. § 111.337; Wyo. Stat. Ann. § 27–9–102(b).
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If H.R. 2694 is enacted, federal agencies enforcing H.R. 2694 and
private plaintiffs will argue in the courts that the requirements in
the Act are furthering a compelling governmental interest, i.e.,
clarifying the nondiscrimination rights of pregnant workers. Lower
courts have ruled that nondiscrimination laws and policies serve a
compelling governmental interest with respect to RFRA claims.44
After likely meeting this burden in a case brought under H.R.
2694, the federal agency or private plaintiff would next argue H.R.
2694 is the least restrictive means to further this interest. It is un-
clear at best whether a religious organization raising RFRA as a
defense will be able to overcome these arguments in federal court.
Indeed, Mr. J. Matthew Sharp, Senior Counsel with the Alliance
Defending Freedom, noted in his testimony at a hearing on RFRA
before the Committee on Education and Labor on June 25, 2019,
that courts rule in favor of the federal government and against
those attempting to be free of a substantial burden on their religion
in over 80 percent of RFRA cases.45 To ensure religious organiza-
tions are not forced to violate their faith in complying with H.R.
2694, the bill should include the CRA’s provision limiting the appli-
cation of the Act with respect to the religiously based employment
decisions of religious organizations.
REPUBLICAN AMENDMENT
Committee Republicans offered one amendment during the Com-
mittee markup. This substitute amendment offered by Ranking
Member Foxx included Chairman Scott’s ANS in its entirety and
simply added language incorporating the religious-organization
protection from the CRA. Ranking Member Foxx’s substitute
amendment acknowledges the improvements made to H.R. 2694 in
the Scott ANS, as discussed above. Although the Scott ANS is not
the bill Republicans might write given a blank slate, its improve-
ments provide sufficient clarity to pregnant workers and employers
regarding their rights and responsibilities under H.R. 2694 with
the exception of the omission relating to religious organizations. All
Committee Republicans present voted for the amendment, but all
Democrats present voted against the amendment.
CONCLUSION
Committee Republicans strongly believe workplaces should be
free of discrimination, and pregnant workers deserve protections
against workplace discrimination. Committee Republicans have
long supported workplace protections for pregnant workers, includ-
ing those in the PDA and ADA. To address circumstances in which
pregnant workers may not be receiving reasonable accommodations
from employers, Committee Republicans support the provisions in
44 See, e.g., EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 592 (6th Cir.
2018) (‘‘EEOC’s compelling interest in eradicating discrimination’’), cert. granted on other
grounds, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 139 S. Ct. 1599 (2019); Hsu v. Ros-
lyn Union Free Sch. Dist. No. 3, 876 F. Supp. 445, 462 (E.D.N.Y. 1995) (compelling interest in
‘‘eliminating and preventing’’ discrimination), aff’d in part, rev’d in part on other grounds, 85
F.3d 839 (2d Cir. 1996).
45 Do No Harm: Examining the Misapplication of the ‘‘Religious Freedom Restoration Act’’:
Hearing Before the H. Comm. on Educ. & Lab., 116th Cong. (June 25, 2019) (written statement
of J. Matthew Sharp, Senior Couns., Alliance Defending Freedom, at 5) (citing Lucien J. Dhooge,
The Religious Freedom Restoration Act at 25: A Quantitative Analysis of the Interpretative Case
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Law, 27 WM. & MARY BILL OF RTS. J. 153, 193, 198 (2018)).
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the Scott ANS as a compromise measure that includes sufficient
clarity regarding the bill’s application to workers and employers.
However, the omission of a protection for religious organizations,
which is a longstanding part of the CRA—the nation’s flagship civil
rights law—must be addressed so that religious organizations are
not faced with a conflict between their faith and the requirements
of federal law. Committee Republicans stand ready to continue
working with Committee Democrats to find a bipartisan agreement
on this outstanding issue.
VIRGINIA FOXX,
Ranking Member.
GLENN ‘‘GT’’ THOMPSON.
JAMES COMER.
RUSS FULCHER.
BEN CLINE.
DANIEL MEUSER.
Æ
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