A seated pregnant woman participating in a brainstorming meeting.
A seated pregnant woman participating in a brainstorming meeting.
After a decade of advocacy, the Pregnant Workers Fairness Act goes into effect today.
Gillian Thomas,
Senior Staff Attorney,
ACLUWomen's Rights Project
Vania Leveille,
Senior Legislative Counsel,
ACLUNational Political Advocacy Department
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June 27, 2023
After a decade of advocacy, the Pregnant Workers Fairness Act goes into effect today.

Today marks a historic moment in the lives of our nation鈥檚 pregnant workers: after more than a decade of advocacy on Capitol Hill, the Pregnant Workers Fairness Act (PWFA), signed by President Biden in December 2022, goes into effect. PWFA mandates 鈥渞easonable accommodations鈥 for pregnant workers unless providing them would impose an 鈥渦ndue hardship鈥 on their employer. For millions of U.S. workers, the new law promises to assure they no longer will have to choose between their paycheck and a healthy pregnancy.

Pregnancy is a normal condition of employment; more than will have at least one child during their lives. But existing legal protections have been glaringly insufficient for workers whose duties may conflict with pregnancy鈥檚 physical realities 鈥 such as cashiers (prolonged standing), nurses (repetitive heavy lifting), custodians (exposure to chemicals), and firefighters (battling potentially lethal blazes). Under the , enacted in 1978, pregnant workers have been entitled to temporary job modifications only if their employer provides them to others 鈥渟imilar in their ability or inability to work.鈥 That language long has been used to deny needed 鈥渁ccommodations鈥 to pregnant workers, on the grounds that favored non-pregnant colleagues are insufficiently 鈥渟imilar.鈥

ACLUclient Michelle Durham sued her employer after being given a discriminating ultimatum.

ACLUclient Michelle Durham sued her employer after being given a discriminating ultimatum.

Credit: John Mofield

Even after the Supreme Court鈥檚 2015 ruling clarified that employers must have a compelling reason for denying accommodations to pregnant workers while granting them to others, employers 鈥 and judges 鈥 continued to withhold them. that more than two-thirds of workers brought PDA failure-to-accommodate claims after Young lost their court cases.

ACLUclient Michelle Durham was one of them. In March 2015, Michelle learned that she was pregnant with her first child. Michelle鈥檚 doctor told her not to lift anything over 50 pounds; because Michelle鈥檚 job duties as an Emergency Medical Technician (EMT) regularly required that she lift patients and stretchers far heavier than that, she asked her employer, Rural/Metro Corporation 鈥 a company providing medical care to underserved communities 鈥 to temporarily reassign her.

What happened next derailed Michelle鈥檚 life, and . Rural/Metro gave Michelle an ultimatum: Keep lifting heavy loads in violation of her doctor鈥檚 orders or go on an unpaid leave of absence for 90 days 鈥 after which she would be fired unless she returned to work. With six months to go until her due date, Michelle was terrified; she desperately needed her paycheck.

As she later put it, testifying in support of PWFA before Congress, 鈥淚 wouldn鈥檛 trade the experience of being [a] mom for anything. But I will never be able to get back those months before and after [my son] was born, when all I could think ACLUwas what I was losing by being pregnant 鈥 not what I was gaining.鈥 Ultimately, Michelle left Rural/Metro rather than risk her pregnancy. She had to move in with her grandmother, racked up credit card debt, and incurred crushing hospital bills when she delivered her son.

After filing a lawsuit, Michelle ultimately reached a settlement with Rural/Metro that provided some relief for the hardship she had experienced. The bad news is that her legal battle took 7 years, in part due to a federal judge鈥檚 ruling that, under the PDA, Michelle was not 鈥渟imilar鈥 to EMTs with occupational injuries. The ACLUwon reversal of that decision on appeal, but the same judge reached a similarly erroneous conclusion at a later stage of the case.

As detailed in a new explainer on PWFA鈥檚 protections 鈥 co-authored by the ACLUand the 鈥 pregnant people needing accommodation no longer must identify 鈥渟imilar鈥 non-pregnant co-workers. Modeled on the Americans with Disabilities Act, employers must grant pregnant workers an accommodation so long as it is 鈥渞easonable鈥 and does not impose an 鈥渦ndue hardship鈥 on the employer. Such clarity will aid workers and their employers alike in reaching mutually-agreeable solutions, with less cost and disruption 鈥 not to mention delay 鈥 than litigation.

As Michelle Durham put it before Congress, 鈥淧regnant workers need to be able to point to the law, in real time, to make their employers do the right thing so that a long-fought lawsuit isn鈥檛 necessary.鈥 She added, 鈥淢y employer could have kept me on the job, but it didn鈥檛 鈥 because it didn鈥檛 think it had to.鈥 Starting today, Congress has left no doubt that they do.

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