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By: Erin Lamb
A Seventh Circuit decision upholding the exclusion of pregnant workers from a Walmart distribution center’s temporary light duty policy is putting the spotlight on the Senate to pass The Pregnant Workers Fairness Act (“PWFA”). The PWFA is bipartisan legislation that would require such accommodations and is supported by the US Chamber of Commerce and the Society for Human Resource Management.
The US Equal Employment Opportunity Commission, which sued on behalf of female employees at Wal-Mart Stores East LP in Wisconsin, had argued that the policy goes against federal nondiscrimination law. Walmart argued that its temporary light duty policy lawfully only covered workers injured on the job and therefore did not illegally exclude pregnant employees when the goal of the policy was to avoid liability under a state workers’ compensation law.
Federal courts typically rely on the 2015 US Supreme Court decision in Young v. United Parcel Service Inc., in which the court ruled that employers that accommodate workers who are similar to pregnant workers in their ability to work cannot refuse accommodations to workers who are pregnant under the PDA. The Seventh Circuit, however, agreed with Walmart, and ruled that the EEOC was wrong that the Young case left the employer with a heightened burden to explain why it could not grant the same accommodations for pregnant workers.
The Pregnant Workers Fairness Act (H.R. 1065) passed the House in May and cleared the Senate Health, Education, Labor and Pensions Committee by a 19-2 vote in August. The law would mirror protections granted under the Americans with Disabilities Act but for pregnant workers. At the federal level, pregnant workers facing bias based on pregnancy can only rely on the Pregnancy Discrimination Act (“PDA”) for protection. The PDA does not guarantee accommodations for pregnant workers.
Over half of states have pregnancy accommodation statutes with varying levels of protections. This creates a patchwork of laws that can cause confusion for both employers and employees alike. If passed, the PDA would bring some uniformity to employers’ obligations.