Just four years ago, pregnant women scored what looked like a victory at the Supreme Court.
In a case called Young v. UPS, the court appeared to make it harder for companies to deny expecting mothers the kinds of accommodations they need to keep working: things like extra bathroom breaks, a reprieve from heavy lifting, or even a stool to sit on while working a shift at the cash register.
At least that’s what it seemed like. Instead, women have lost two-thirds of the accommodation cases decided since Young, according to a new analysis of federal lawsuits released on Thursday by A Better Balance, an advocacy group that provides legal representation to caregivers and families.
“Pregnant workers are still being forced to choose between their job and a healthy pregnancy,” write the authors of the report.
The United States has a long way to go when it comes to truly celebrating mothers. Women take a pay hit simply for having children — a 4 percent reduction in pay per child, according to one 2014 study. Mothers aren’t guaranteed paid time off to recover from childbirth or bond with a new baby. As a result, one-quarter of women go back to work within two weeks of giving birth.
Pregnant women, especially those in physically demanding jobs, have a hard time even just doing their work. Often, if they can’t get those extra breaks or a schedule that provides time off for doctor visits or severe morning sickness, they wind up leaving the workplace ― some are fired, some quit, and others are forced out on unpaid leave.
Just this week, CNET reported on seven Amazon warehouse workers who say they were fired after asking for things like more bathroom breaks and less time on their feet. Amazon has consistently denied the allegations.
Forty percent of mothers today are their family’s sole or primary breadwinner, and families depend on their income. Getting fired when pregnant puts these women in a particularly precarious position.
“We know when women are pushed out, it often spirals into a deep circle of poverty that they have a tough time climbing out of,” Dina Bakst, co-founder and co-president of A Better Balance who co-authored the report, told reporters on a conference call Thursday afternoon.
The Better Balance report is loaded with examples of women who just needed a little slack to get through their pregnancy but instead got pushed out of work and then lost their fight for justice in court: a daycare worker who needed a bathroom break; a shift leader at a convenience store who asked for light duty; a nurse aid who couldn’t lift anything too heavy.
For their analysis, researchers identified more than 200 cases filed under the federal Pregnancy Discrimination Act and decided since the Young decision. Researchers then narrowed those down by looking only at the 43 cases that specifically covered workplace accommodation claims and cited Young.
The number of cases may seem small, but represents a problem that’s affecting women from Alabama to Michigan to Wyoming, said Sarah Brafman, a staff attorney at Better Balance who also co-authored the report. “Over and over, courts are dismissing cases.”
And for every woman who went to court, there are hundreds more without the resources and time to file a case.
“Pregnant workers are still being forced to choose between their job and a healthy pregnancy.”
Sometimes, pregnant women have no choice but to keep working, even without accommodations, potentially putting their health and pregnancy at risk. At a warehouse in Memphis, women who were denied accommodations kept working and some miscarried, The New York Times reported last year.
The Young case, advocates believed, was going to make it easier for women in these kinds of situations to make their case and, in turn, force companies to change.
Peggy Young, a UPS driver who was pregnant, argued that since UPS gave light duty to those injured on the job and those who lost their driver’s licenses due to things like drunk driving, she should also be able to get light duty.
The Supreme Court agreed, but it didn’t outright hold that pregnant women must be accommodated at work. Instead, in a 6-3 ruling, the justices basically stuck to a law passed in 1978: the Pregnancy Discrimination Act. The act, which says you can’t fire a woman for being pregnant or fail to promote her, also says that a pregnant woman should be treated at work like any other temporarily disabled worker. So a pregnant woman at work can be accommodated if other workers at her company, with a similar inability to work, also are accommodated.
Advocates had hoped the Young decision would broaden the courts’ understanding of what a “similar inability to work” means, but it didn’t really. The Better Balance report calls this the “comparator” problem.
Courts and employers had read that language very narrowly before Young, said Gillian Thomas, a senior staff attorney at the ACLU Women’s Rights Project who’s been working on these kinds of cases for nearly 15 years.
They’re still reading it narrowly. If a company accommodates workers who were injured on the job, for example, courts often don’t consider that similar enough, said Thomas.
That means the onus is still on women to prove that other employees are getting accommodations, the report says. It’s a high bar to meet. In one case against Federal Express cited in the report, a woman came to court with a spreadsheet showing that 261 other employees had been given light-duty work or reassignments during the year she was pregnant. The court said the information in the spreadsheet wasn’t detailed enough.
Thomas said some courts are dismissing these cases without even giving these women the opportunity to get this information in discovery. “That’s what’s truly alarming,” she said.
“This is a problem that’s longstanding and is only getting worse as more women are in the workplace, working longer into pregnancy and working in male-dominated and dangerous jobs like policing, manufacturing and construction,” she said. “It’s not going away. It’s only going to get more urgent.”
The authors of the Better Balance report say a new law is needed. They’re pushing for the federal Pregnant Workers Fairness Act, first introduced in 2017 and expected to be reintroduced next week in the House. It would require employers to provide reasonable accommodations to employees for pregnancy, childbirth and related medical conditions ― unless doing so is an “undue burden.”
The act is similar to the Americans with Disabilities Act, which requires employers to work with disabled employees to figure out accommodations. Twenty-five states and five cities already have similar laws on the books ― many passed with bipartisan support.
The authors of the report point out that it’s hard to argue against these kinds of laws ― business groups have either supported state laws or at least stayed neutral. Opposing them, Gedmark said, is like “being against motherhood.”
CORRECTION: This article has been updated to reflect that a quote originally attributed to Elizabeth Gedmark was made by Dina Bakst and that Gillian Thomas is not a co-author of the report.