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Pregnant Workers Endure Routine Discrimination in the Workplace

By Peter Levine posted in Discrimination, Employment Law, Law on November 11th, 2013

Pregnant Workers Are Sometimes Forced to Choose Between a Job and Their Health

In 2007 Heather Myers was seven months pregnant when she was working as a Walmart floor associate, stocking shelves and cleaning aisles for minimum wage.

When she was told she could no longer carry anything to drink in the cart she pushed around all day, she brought two separate letters from her doctor, saying that she was at risk for urinary tract infections and needed to keep hydrated. Her request was twice denied, she said. “I decided to listen to my doctor rather than my manager,” Myers recalled. She was then told, “either the water bottle has to go or you have to go.”

Myers decided to leave, making her one of the many workers who are fired or forced to take unpaid leave after asking for basic accommodations during their pregnancy.

The legality of this situation is an unexpectedly complicated question raised in a recent report by the National Women’s Law Center (NWLC) and A Better Balance (ABB). Both are advocates for strengthening the protections they allege are ignored by the existing law.

Discrimination of Pregnant Workers Under Americans with Disabilities Act

“We think the law is clear,” said Emily Martin, NWLC’s vice-president and general counsel. “But since there are unfortunately still a lot of employers out there who believe, or at least assert, that you don’t have to accommodate limitations arising out of pregnancy even if you accommodate the same limitation when it rises out of injury, then we need to make it clearer.”

The “misunderstanding,” she said, is based in the fact that pregnancy is not itself a disability under the Americans with Disabilities Act. “That’s as it should be,” she said. “Pregnancy is NOT a disability – it’s healthy and normal.” According to Martin, for the first 35 years under the ADA, pregnant workers were therefore not explicitly protected. In 2008 that act was expanded to include temporary disabilities.

“You have always had to treat pregnancy the way you treat temporary disability,” Martin argues, “and since the way you treat temporary disability has changed, the way you treat pregnancy has to change.”

The haphazardness with which pregnancy accommodations are and are not granted by employers means the law needs to be clarified. Legislation is currently being considered before committees in both the House and Senate. If passed, it would amend federal employment law to explicitly state that “limitations arising out of pregnancy should be accommodated unless it causes undue hardship” to an employer.

Peter K. Levine
A Professional Law Corporation
http://www.employmentforall.org/

“We Don’t Pay You to Pee” Why Pregnant Workers Fairness Act Needed

By Peter Levine posted in Discrimination, Employment Law, Law on November 6th, 2013

Pregnant Workers Face Discrimination When Employers Refuse Workplace Adjustments to Job Duties

When Amanda Roller became pregnant and started experiencing morning sickness her supervisor at the call center she was employed at repeatedly refused her requests to go the bathroom. Instead her supervisor told her she would get Amanda a larger trash can so that she could vomit at her desk. When Amanda asked a second time she was not only denied, but additionally told by her supervisor, “We don’t pay you to pee.” Amanda was then demoted and eventually fired.

In workplaces across the nation pregnant women face discrimination when their employers refuse to make adjustments to their job duties, including lifting restrictions such as allowing them to stay off high ladders, or even just letting them go to the bathroom to vomit.

The Pregnancy Discrimination Act (PDA) outlawed this type of discrimination in 1978, requiring that employers treat pregnant workers the same as those who are “similar in their ability or inability to work.” But too many lower courts have misinterpreted the Act, upholding incorrectly that employers are permitted to provide accommodations to workers with disabilities or on-the-job injuries but deny those same accommodations to pregnant workers.

Pregnant Workers Need Fair Interpretation of “Pregnancy Discrimination Act”

Luckily, many pregnant workers are able to continue working throughout their pregnancies without changes to their jobs. But some other pregnant workers – particularly those in physically demanding and low-wage jobs – need these accommodations in order to have healthy pregnancies as well as continue to provide for their families.

The Pregnant Workers Fairness Act was recently reintroduced in Congress lead co-sponsors, Senators Casey and Shaheen and Representative Nadler. The Act would require employers to provide reasonable accommodations to pregnant workers, unless doing so would impose an undue hardship.

For more than a decade California has had similar legislation requiring employers to accommodate pregnant workers. During that time the number of pregnancy discrimination lawsuits decreasedin the state, even while the number of similar suits rose nationwide. A temporary physical impairment that can easily be accommodated should not cost a pregnant worker her job. The Pregnant Workers Fairness Act would do just that.

Peter K. Levine
A Professional Law Corporation
http://www.employmentforall.org/

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