By Amal Bass, WLP Staff Attorney
Thirty-five years ago today, President Carter signed into law the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964. This law superseded the U.S. Supreme Court’s misguided decisions in Geduldig v. Aiello and General Electric Co. v. Gilbert, both of which held that pregnancy discrimination was not a form of sex discrimination.
The PDA prohibits employers from firing, demoting, refusing to hire, or otherwise discriminating against a woman because of her pregnancy, childbirth, or related medical conditions. It states that employers must treat women affected by pregnancy, childbirth, or related medical conditions “the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” The intention was to bring Title VII closer to meeting its goal, which Justice Brennan noted in his Gilbert dissent, as being to
“assur[e] equality of employment opportunities and  eliminate those discriminatory practices and devices which have fostered [sexually] stratified job environments to the disadvantage of [women].” (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973)).
Undoubtedly, the PDA has improved the workplace for women. The number of women working outside of the home has clearly increased since its passage. Nevertheless, over the last 35 years, far too many women have fallen through the cracks that our courts have chiseled into the law. For example, courts have required women to prove that employers provided better treatment to employees who were not only “similar in their ability or inability to work,” as the statutory language requires, but who were also afflicted with limitations arising from off-the-job conditions, which the language of the statute does not require. Courts have also refused to count discrimination related to breast feeding and parental leave as pregnancy discrimination despite the PDA’s clear language that “‘because of sex’ or ‘on the basis of sex’ include… because of or on the basis of pregnancy, childbirth, or related medical conditions.” These shortcomings exist not only in the PDA, but also in the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance, both of which are anti-discrimination laws modeled after Title VII and the PDA.
With regard to workplace accommodations, the 2008 amendments to the Americans with Disabilities Act may fill some of these gaps; however, it remains to be seen how the courts known for limiting the effect of the PDA will apply the new protections. The amendment to the ADA requires an employer to provide an employee whose condition meets the law’s expanded definition of “disability” — including temporary impairments and less severe impairments — with a reasonable accommodation that does not present an undue hardship to the employer. Pregnancy is not a disability, but a pregnancy-related impairment that substantially limits a major life activity is one. Often, the women who have called the Women’s Law Project for help are having healthy pregnancies and need only minor accommodations, such as a chair for sitting or permission to carry a bottle of water at work, and courts have not yet applied the law to cases like these.
Without laws that provide increased protections for pregnant women in the workplace, employers are likely to continue to deny requests for minor job modifications to accommodate pregnancy. As a result, these women may be forced to continue working under hazardous conditions, exhaust any leave that might have been available to them prior to giving birth, and/or leave their jobs. Unemployed, these women lose their income, any employer-provided health insurance and other benefits, and work experience. As a result, they are at risk for reduced income for the rest of their lives.
It is time for new legislation that will meet the goals of the PDA. On the federal level, Senators Bob Casey (D-Pa) and Jeanne Shaheen (D-N.H.) and Representative Jerrold Nadler (D-N.Y.) have introduced the Pregnant Workers Fairness Act (S.942/H.R. 1975), which would require employers to make reasonable accommodations to employees due to pregnancy, childbirth, or related medical conditions unless the accommodation imposes an undue hardship on the employer. On the state level, Pennsylvania should follow the example of several other states, including California, Hawaii, and Maryland, and pass a similar bill that would provide pregnant workers with reasonable accommodations. In Philadelphia, Councilmembers Greenlee, Reynolds-Brown, and Bass have introduced legislation (Bill No. 130687) that would amend the Fair Practices Ordinance to prohibit employers from refusing
“to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition, provided (i) the employee requests such accommodations and (ii) such accommodations will not cause an undue hardship to the employer.”
Women should not lose their jobs — placing their families at risk of poverty — because their employers have denied their requests for reasonable job accommodations. The promise of the PDA cannot be fully realized until the law prevents this discrimination from happening.
A Better Balance & the National Women’s Law Center, It Shouldn’t Be a Heavy Lift: Fair Treatment for Pregnant Workers
ADAAA, Pub. L. 110-325
ADAAA Regulations, 29 C.F.R. Part 1630.2(h) (2011)
Equal Rights Advocates, Expecting a Baby, Not a Lay-Off
Geduldig v. Aiello, 417 U.S. 48 (1974)
General Electric Co. v. Gilbert, 429 U.S. 125 (1976)
PDA, 42 U.S.C. § 2000(e)(k) (2013)