By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.

The Pregnant Workers Fairness Act (“PWFA”) was first introduced eight years ago, in 2012, and has since been hotly debated.  Now, it may finally be passed and put into law.  Among the issues surrounding the passage of the PWFA were both a sense of urgency and importance surrounding the law, as well as a lack of bipartisan support.  But as the times change, it has become clear that progress for pregnant workers nation-wide is both necessary and imminent.

The underlying purpose of the PWFA, is the strengthen the federal Pregnancy Discrimination Act of 1978 (“PDA”).   The PDA was passed more than forty years ago, and has been largely viewed as ambiguous and in need of clarification. Specifically, the PDA states that:

. . 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.

An example of the hurdles that women have to overcome under the PDA is the case of Young v. UPS, 135 S. Ct. 1338 (2015). When Peggy Young, a pregnant employee, went to her employer to request a twenty-pound lift restriction, she was denied the request.  Young was instead placed on an unpaid leave of absence by UPS.  Young argued that other employees who were similarly situated, on the other hand, were granted such lift restrictions and allowed to continue their employment.  Such employees included drivers who were injured on the job (i.e., those with worker’s compensation injuries), drivers who lost their Department of Transportation certifications, and drivers who suffered from a disability under the Americans with Disabilities Act.

UPS countered that, in employing its “pregnancy blind” policy, it did not discriminate against Young in arriving at the decision to place her on unpaid leave.  Young argued that in being placed on unpaid leave, she was inherently being treated less favorably that her similarly situated co-workers.  The Court had difficulty arriving at its decision and finding in Young’s favor, because, while the Court did find in favor of Young, it did not exactly agree with her reasoning.  The Court noted that employers who opted not to grant accommodations had an extremely high burden of proving nondiscriminatory intent behind their decision, but that the affected pregnant employee nonetheless had to demonstrate that their failure to be accommodated placed a “significant burden” upon them.

Such ambiguities have left pregnant women vulnerable in the workplace, and without clear job protections.   The PWFA would specifically declare it to be unlawful for employers to fail to reasonably accommodate pregnant workers, unless such accommodations would place an undue hardship on the employer.  Further, the PWFA specifically notes that it will be unlawful for employers to require pregnant employees to take unpaid leave, if a reasonable accommodation were available in the workplace.  The PWFA also adds that it will be unlawful for employers to take retaliatory actions against pregnant employees who request such reasonable accommodations.

Luckily, in New Jersey, there is already law in place that includes significantly more protections than the current federal law.  However, as a nation, the passage of the PWFA would allow more inclusive protections for women across the nation.

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