Pregnant women shouldn’t have to choose between a job and a healthy baby

Pregnant women in low-income work often face an unappealing choice: lose their job or perform duties that endanger their health and that of their baby.

Walmart, the biggest private employer in the U.S., is a case in point. In 2007, the retailer fired Heather Wiseman for carrying around a bottle of water – despite a doctor’s note saying it was necessary for her pregnancy. A decade later Walmart forced Whitney Tomlinson to take unpaid leave after she revealed her pregnancy-related lifting restrictions.

These aren’t isolated cases. A 2018 New York Times investigation found that some of the largest American companies – including Walmart, AT&T, Merck and Whole Foods – “systematically sideline pregnant women,” “pass them over for promotions and raises” and “fire them when they complain.”

In 2012, I wrote a law review article that explored the ways employers refuse to provide simple accommodations to low-income pregnant workers, such as letting them drink from a water bottle or having co-workers help with heavy lifting. Since then, 18 states have passed laws that require employers to provide pregnancy accommodations, bringing the total to almost two dozen.

But as The New York Times report shows, more needs to be done to ensure women don’t have to make a choice between the health of their babies and earning an income.

A right to accommodation

Recent research suggests that pregnancy discrimination is particularly problematic for low-income women.

While the difference in employment rates between pregnant and nonpregnant women who earn US$20,000 a year or more is relatively small, the gap is more than 11 percentage points among poorer women. And the data already exclude women who have voluntarily exited the workforce, meaning they focus on the more than 60 percent of pregnant women who depend on a paycheck to support their growing families.

Congress passed the Pregnancy Discrimination Act in 1978 to prevent such discrimination. Unfortunately, it hasn’t resolved the problem because, unlike its counterpart, the Americans with Disabilities Act, it does not provide an absolute right to workplace accommodations. Instead, it directs employers to treat pregnant workers the same as similar colleagues.

But since pregnant workers have special concerns – such as a need for easy access to water, lifting restrictions or maternity-fit uniforms – discrimination claims tend to fail because they cannot find a comparable nonpregnant coworker who needs the same accommodation.

States lead the charge

In recent years, states have been filling this gap by passing statutes that provide pregnant workers with an absolute right to workplace accommodations.

The number of states with such laws has almost doubled from just 12 in 2014 to 23 today. And Kentucky is on course to becoming the 24th after its Senate passed an accommodation bill in February.

In addition, in 2015, the Supreme Court, in Young v. UPS, clarified the kind of employer accommodation policy that would violate the Pregnancy Discrimination Act. Specifically, it ruled that an employer that provides pregnant workers less generous accommodations than nonpregnant workers violates the act if it imposes a significant burden without a “sufficiently strong” nondiscriminatory reason.

In other words, an employer can’t simply claim that accommodating a pregnant worker is more expensive or less convenient.