[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
LONG OVER DUE: EXPLORING THE
PREGNANT WORKERS'
FAIRNESS ACT (H.R. 2694)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, OCTOBER 22, 2019
__________
Serial No. 116-44
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
39-487 PDF WASHINGTON : 2021
-----------------------------------------------------------------------------------
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' Scott, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Lloyd Smucker, Pennsylvania
Donald Norcross, New Jersey Jim Banks, Indiana
Pramila Jayapal, Washington Mark Walker, North Carolina
Joseph D. Morelle, New York James Comer, Kentucky
Susan Wild, Pennsylvania Ben Cline, Virginia
Josh Harder, California Russ Fulcher, Idaho
Lucy McBath, Georgia Van Taylor, Texas
Kim Schrier, Washington Steve Watkins, Kansas
Lauren Underwood, Illinois Ron Wright, Texas
Jahana Hayes, Connecticut Daniel Meuser, Pennsylvania
Donna E. Shalala, Florida Dusty Johnson, South Dakota
Andy Levin, Michigan* Fred Keller, Pennsylvania
Ilhan Omar, Minnesota Gregory F. Murphy, North Carolina
David J. Trone, Maryland
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
SUZANNE Bonamici, OREGON, Chairwoman
Raul M. Grijalva, Arizona James Comer, Kentucky,
Marcia L. Fudge, Ohio Ranking Member
Kim Schrier, Washington Glenn ``GT'' Thompson,
Jahana Hayes, Connecticut Pennsylvania
David Trone, Maryland Elise M. Stefanik, New York
Susie Lee, Nevada Dusty Johnson, South Dakota
C O N T E N T S
----------
Page
Hearing held on October 22, 2019................................. 1
Statement of Members:
Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
Rights and Human Services.................................. 1
Prepared statement of.................................... 4
Comer, Hon. James, Ranking Member, Subcommittee on Civil
Rights and Human Services.................................. 5
Prepared statement of.................................... 6
Statement of Witnesses:
Bakst, Ms. Dina, J.D., Co-Founder and Co-President, A Better
Balance: The Work and Family Legal Center.................. 40
Prepared statement of.................................... 43
Durham, Ms. Kimberlie M.,.................................... 14
Prepared statement of.................................... 17
Nadler, Hon. Jerrold, a Representative in Congress from the
State of New York.......................................... 7
Prepared statement of.................................... 9
McLaughlin, Ms. Ellen, Partner, Seyfarth Shaw LLP............ 28
Prepared statement of.................................... 31
Wilbur, Ms. Iris, Vice President of Government Affairs and
Public Policy, Louisville, Inc., The Metro Chamber of
Commerce................................................... 23
Prepared statement of.................................... 26
Additional Submissions:
Chairwoman Bonamici:.........................................
Prepared statement from International Brotherhood of
Teamsters.............................................. 97
Article: Miscarrying at Work: The Physical Toll of
Pregnancy Discrimination............................... 100
Letter dated December 4, 2018............................ 110
NELA Letter dated October 17, 2019....................... 119
Prepared statement from 1,000 Days....................... 138
Letter dated May 14, 2019 from Business Groups........... 140
Prepared statement from Health Care Groups............... 142
Fudge, Hon. Marcia L., a Representative in Congress from the
State of Ohio:.............................................
Letter dated October 18, 2019 from the National
Employment Lawyers Association (NELA).................. 143
Prepared statement from the American Civil Liberties
Union (ACLU)........................................... 145
Letter dated October 18, 2019 from The Leadership
Conference on Civil and Human Rights................... 158
Hayes, Hon. Jahana, a Representative in Congress from the
State of Connecticut:......................................
Prepared statement from the National Women's Law Center.. 161
Letter dated October 21, 2019 from Warren, Hon. Elizabeth 175
Lee, Hon. Susie, a Representative in Congress from the State
of Nevada:.................................................
Letter dated October 22, 2019 from National Partnership
for Women and Families................................. 177
Schrier, Hon. Kim, a Representative in Congress from the
State of Washington:.......................................
Prepared statement from the National WIC Association..... 179
Prepared statement from Equal Rights Advocates........... 181
Scott, Hon. Robert C. ``Bobby'', a Representative in Congress
from the State of Virginia:................................
Prepared statement from the March of Dimes............... 183
Questions submitted for the record by:
Chairwoman Banamici
Ms. Fudge................................................ 188
Mr. Scott................................................ 187
Responses submitted for the record by:
Ms. Bakst................................................ 191
Ms. Wilbur............................................... 206
LONG OVER DUE: EXPLORING THE
PREGNANT WORKERS'
FAIRNESS ACT (H.R. 2694)
----------
Tuesday, October 22, 2019
House of Representatives,
Subcommittee on Civil Rights and Human Services,
Committee on Education and Labor,
Washington, DC
----------
The subcommittees met, pursuant to call, at 10:15 a.m., in
Room 2175, Rayburn House Office Building. Hon. Suzanne Bonamici
(Chairwoman of the subcommittee) presiding.
Present: Representatives Bonamici, Schrier, Hayes, Lee,
Comer, Thompson, Stefanik, and Johnson.
Also Present: Representatives Scott, McBath, Underwood,
Foxx and Cohen.
Staff Present: Tylease Alli, Chief Clerk; Phoebe Ball,
Disability Counsel; Ilana Brunner, General Counsel - Health and
Labor; Eli Hovland, Staff Assistant; Eunice Ikene, Labor Policy
Advisor; Stephanie Lalle, Deputy Communications Director;
Richard Miller, Director of Labor Policy; Max Moore, Office
Aid; Udochi Onwubiko, Labor Policy Counsel; Veronique Pluviose,
Staff Director; Carolyn Ronis, Civil Rights Counsel; Banyon
Vassar, Deputy Director of Information Technology; Courtney
Butcher, Minority Director of Member Services and Coalitions;
Cate Dillon, Minority Staff Assistant; Rob Green, Minority
Director of Workforce Policy; Jeanne Kuehl, Minority
Legislative Assistant; John Martin, Minority Workforce Policy
Counsel; Hannah Matesic, Minority Director of Operations; Audra
McGeorge, Minority Communications Director; Carlton Norwood,
Minority Press Secretary; Brandon Renz, Minority Staff
Director; and Ben Ridder, Minority Professional Staff Member.
Chairwoman Bonamici. The Committee on Education and Labor
will come to order. Welcome, everyone. I note that a quorum is
present. The Committee is meeting today in a legislative
hearing to hear testimony on H.R. 2694, the Pregnant Workers
Fairness Act.
I know for the subcommittee that Ms. McBath of Georgia, Ms.
Underwood of Illinois and Mr. Cohen of Tennessee are permitted
to participate in today's hearing. Members who sit on the
Subcommittee and are present shall have first priority to ask
questions, followed by Members who sit on the Full Committee
and are present and only after all Committee Members who are
present have gone, shall Members who are not on the Committee
on Education and Labor ask questions.
Pursuant to Committee Rule 7(c), opening statements are
limited to the Chair and the Ranking Members. This allows us to
hear from our witnesses sooner and provides all Members with
adequate time to ask questions.
I recognize myself now for the purpose of making an opening
statement.
As a mom and a policymaker, I know how important it is to
protect the economic security of pregnant women in working
families. Unfortunately, our current laws are inadequate, and
many pregnant workers are placed on unpaid leave or forced out
of work when they only need a simple accommodation to stay on
the job during their pregnancy.
Today, we are holding a legislative hearing on H.R. 2694,
the Pregnant Workers Fairness Act.
This bill takes an important step to guarantee that
pregnant women will get reasonable accommodations that will
allow them to stay in the workplace. I would like to thank our
witnesses for being here to provide important insight on the
discrimination and hardship pregnant women face when they are
denied reasonable accommodations in the workplace.
I also want to thank judiciary committee Chairman Jerrold
Nadler, the lead sponsor of this bill for taking time to join
us this morning.
According to A Better Balance, 75 percent of women will be
pregnant while employed at some time in their life. Women are
increasingly either the primary or co-breadwinners of
households and as a result, more pregnant women work later into
their pregnancies.
In fact, research suggests that more than 80 percent of
first-time mothers work until their final month of pregnancy; I
know I did.
Pregnant workers may need reasonable accommodations to
protect the health of both mother and baby. Reasonable
accommodations can range from providing seating, water, and
light duty to excusing pregnant workers from tasks involving
dangerous substances.
They do not need to be, nor are they typically complicated
or costly, but when pregnant workers do not have access to the
reasonable workplace accommodations they need, they are often
forced to choose between their financial security and their
pregnancy.
The consequences can be devastating to their health and
security. It's also important to note that women of color are
overrepresented in low-wage, physically demanding jobs and are
therefore disproportionately affected by a lack of access to
reasonable accommodations.
In 1978, Congress first recognized the responsibility to
provide pregnant women with fair and equal treatment in the
workplace when they passed the Pregnancy Discrimination Act.
The law clarified the discrimination against pregnant workers
is discrimination on the basis of sex under Title VII of the
Civil Rights act of 1964.
The law also requires businesses to treat pregnant workers
as they would other physically impaired workers; yet, 41 years
after the passage of the Pregnancy Discrimination Act, Federal
law still falls short of guaranteeing that all pregnant workers
have reasonable workplace accommodations. Under current law, a
pregnant worker must show that her employer accommodated
similarly-situated coworkers, a burdensome, and often
impossible, standard to meet.
Similarly, the Americans with Disabilities Act covers
pregnancy related impairments but leaves women with less
serious, pregnancy-related impairments or who simply need
accommodations without legal recourse. Even the Supreme Court's
decision in Young v. UPS, which affirmed pregnant workers'
rights to reasonable accommodations under the Pregnancy
Discrimination Act, has not provided workers or businesses the
clarity or legal certainty they need.
In fact, since Young v. UPS, approximately 70 percent of
courts have denied reasonable accommodations for pregnant
workers. Pregnant women today continue to suffer workplace
discrimination at an alarming rate. According to a 2012 survey,
more than 60 percent of workers have seen pregnancy
discrimination on the job.
For these women, being pregnant can mean losing a job,
being denied a promotion or not being hired in the first place.
Guaranteeing that pregnant workers have reasonable
accommodation in the workplace is a crucial step to eradicating
pregnancy discrimination, and without federal protections for
pregnant workers, several states from across the geographic and
political spectrum have taken action to fill the void.
My home state of Oregon is one of those helping to lead the
way. Earlier this year, the state legislature passed a
bipartisan bill to require employers to provide reasonable
accommodations to applicants who are employees with known
limitations related to pregnancy, childbirth, or related
medical condition unless it would impose undue hardship. And as
of this month, 27 states and the District of Columbia and four
cities have required employers with more than 15 employees to
provide accommodations, bringing certainty to business,
preventing costly disputes and importantly, keeping pregnant
women safely on the job.
But without a federal benchmark, workers and employers are
left with a patchwork of laws that provide strong protections
for some and no protections for others. We need to make sure
that all pregnant workers, regardless of where they live, can
access the protections they need to stay in the workplace and
that's why we are discussing the Pregnant Workers Fairness Act
today.
This bipartisan bill would establish a pregnant worker's
right to reasonable accommodations and guarantee that pregnant
workers can seek those accommodations without facing
discrimination and retaliation in the workplace. The Pregnant
Workers Fairness Act is an opportunity for Congress to finally
fulfill the promise of the Pregnancy Discrimination Act and
take an important step towards workplace gender equity, healthy
pregnancies and the economic security of all pregnant and
parenting women and their families. I welcome this opportunity
to work with my Republican colleagues to move this bill forward
in a bipartisan manner. I request unanimous consent to enter
two letters into the record: one from the International
Brotherhood of Teamsters and more than 100 stakeholders'
groups--another one from more than 100 stakeholder groups, both
in support of the Pregnant Workers' Fairness Act without
objections to order.
Thank you, and I now yield to the Ranking Member, Mr.
Comer, for an opening statement.
[The statement of Chairwoman Bonamici follows:]
Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee
on Civil Rights and Human Services
As a mom and a policy maker, I know how important it is to protect
the economic security of pregnant women and working families.
Unfortunately, our current laws are inadequate, and many pregnant
workers are placed on unpaid leave or forced out of work when they only
need a simple accommodation to stay on the job during their pregnancy.
Today, we are holding a legislative hearing on H.R. 2694, the
Pregnant Workers Fairness Act. This bill takes an important step to
guarantee that pregnant women will get reasonable accommodations that
will allow them to stay in the workplace.
I would like to thank our witnesses for being here to provide
important insight on the discrimination and hardship pregnant women
face when they are denied reasonable accommodations in the workplace. I
also want to thank Judiciary Committee Chairman Nadler, the lead
sponsor of this bill, for taking time to join us this morning.
According to A Better Balance, seventy-five percent of women will
be pregnant while employed at some time in their life. Women are
increasingly either the primary or co- breadwinners of households, and
as a result more pregnant workers work later into their pregnancies. In
fact, research suggests that more than 80 percent of first- time
mothers work until their final month of pregnancy.
Pregnant workers may need reasonable accommodations to protect the
health of both mother and baby. Reasonable accommodations can range
from providing seating, water, and light duty, to excusing pregnant
workers from tasks involving dangerous substances. They do not need to
be, nor are they typically complicated or costly.
But when pregnant workers do not have access to the reasonable
workplace accommodations they need, they are forced to choose between
their financial security and their pregnancy. The consequences can be
devastating to their health and their security. It is also important to
note that women of color are overrepresented in low-wage, physically
demanding jobs and are therefore disproportionately affected by a lack
of access to reasonable accommodations.
In 1978, Congress first recognized the responsibility to provide
pregnant women with fair and equal treatment in the workplace when they
passed the Pregnancy Discrimination Act. The law clarified that
discrimination against pregnant workers is discrimination on the basis
of sex under Title VII of the Civil Rights Act of 1964. The law also
requires businesses to treat pregnant workers as they would other
physically impaired workers.
Yet, 41 years after the passage of the Pregnancy Discrimination
Act, federal law still falls short of guaranteeing that all pregnant
workers have reasonable workplace accommodations. Under current law, a
pregnant worker must show that her employer accommodated ``similarly
situated'' co-workers--a burdensome and often impossible standard to
meet. Similarly, the Americans With Disabilities Act covers pregnancy-
related impairments but leaves women with less serious pregnancy-
related impairments, or who need accommodations, without legal
recourse.
Even the Supreme Court's decision in Young vs. UPS, which affirmed
pregnant workers' right to reasonable accommodations under the
Pregnancy Discrimination Act, has not provided workers or businesses
the clarity or legal certainty they need. In fact, since the Young v.
UPS decision, approximately 70 percent of courts have denied reasonable
accommodations for pregnant workers.
Pregnant women today continue to suffer workplace discrimination at
an alarming rate. According to a 2012 survey, more than 60 percent of
Americans have seen pregnancy discrimination on the job. For these
women, being pregnant can mean losing their job, being denied a
promotion, or not being hired in the first place. Guaranteeing that
pregnant workers have a reasonable accommodation in the workplace is a
crucial step in eradicating pregnancy discrimination.
Without strong federal protections for pregnant workers, several
states from across the geographic and political spectrum have taken
action to fill the void.
My home state of Oregon is one of those helping to lead the way.
Earlier this year, the state legislature passed a bipartisan bill to
require employers to provide reasonable accommodations to applicants or
employees with known limitations related to pregnancy, childbirth, or a
related medical condition unless it would impose an undue hardship.
And as of this month, 27 states, the District of Columbia and four
cities require employers with more than 15 employees to provide
accommodations, bringing certainty to businesses, preventing costly
disputes, and, importantly, keeping pregnant women safely on the job.
But without a federal benchmark, workers and employers are left
with a patchwork of laws that provides strong protections for some, and
no protections for others. We need to make sure that all pregnant
workers, regardless of where they live, can access the protections they
need to stay in the workplace.
That is why we are discussing the Pregnant Workers Fairness Act
today. This bipartisan bill would establish a pregnant worker's right
to reasonable accommodations, and guarantee that pregnant workers can
seek those accommodations without facing discrimination or retaliation
in the workplace.
The Pregnant Workers Fairness Act is an opportunity for Congress to
finally fulfill the promise of the Pregnancy Discrimination Act and
take an important step toward workplace gender equity, healthy
pregnancies, and the economic security of all pregnant and parenting
women and their families. I welcome the opportunity to work with my
Republican colleagues to move this bill forward in a bipartisan manner.
I request unanimous consent to enter two letters into the record
from the International Brotherhood of Teamsters and more than 100
stakeholder groups in support of the Pregnant Workers Fairness Act.
Thank you and I now yield to the Ranking Member, Mr. Comer, for an
opening statement.
______
Mr. Comer. Thank you, Madam Chairman, and I want to welcome
all the witnesses who are here today, including my friend and
fellow Kentuckian, Iris Wilbur.
Committee Republicans have long been committed to policies
and laws that empower all Americans to achieve success.
Discrimination of any type should not be tolerated, and no one
should ever be denied an opportunity because of unlawful
discrimination. That is why there are important protections
under Federal law to prevent workplace discrimination,
including Federal laws that protect pregnant workers. The
Americans with Disabilities Act, or ADA, provides protections
to pregnant workers. The Pregnancy Discrimination Act outlaws
pregnancy discrimination. A 2015 Supreme Court ruling affirmed
that employers must treat pregnant workers equally and fairly,
and states, including my state of Kentucky, have passed laws
protecting pregnant workers.
The Equal Employment Opportunity Commission, the primary
federal agency that enforces civil rights laws against
workplace discrimination, has stated that ADA requires
employers to accommodate pregnancy-related limitations.
Republicans in Congress have long supported meaningful and
clearly-defined protections for pregnant workers that ensure
they are not being unlawfully discriminated against as it
relates to pregnancy, childbirth or related medical conditions.
We should promote policies in Washington that encourage a
strong family, allow families to flourish and protect life at
all stages.
The purpose of America's nondiscrimination laws and the
agencies enforcing them is to give all Americans equal
opportunities to succeed. That being said, overzealous
government intervention often causes more harm than good. While
we are committed to preventing and combating unlawful
discrimination, we should carefully examine legislation that
could cause confusion and prove difficult to implement.
We should prioritize discrimination policies that are
responsible and effective so our nation's workers and job
creators can flourish, and America's workplaces can be free
from discrimination.
The committee should review and evaluate the federal laws
already on the books that provide protection for pregnant
workers as well as the specific provisions of H.R. 2694 before
advancing legislation that could have unexpected consequences.
The hearing today is a starting point in this regard.
Bottom line, pregnant workers should be protected and
reasonably accommodated in the workplace. So I look forward to
hearing from our witnesses today as we examine the Pregnant
Workers Fairness Act. Madam Chair, I yield back.
[The statement of Mr. Comer follows:]
Prepared Statement of Hon. James Comer, Ranking Member, Subcommittee on
Civil Rights and Human Services
I want to thank all the witnesses, including my fellow Kentuckian,
for being here today.
Committee Republicans have long been committed to policies and laws
that empower all Americans to achieve success.
Discrimination of any type should not be tolerated, and no one
should ever be denied an opportunity because of unlawful
discrimination. That is why there are important protections under
federal law to prevent workplace discrimination, including federal laws
that protect pregnant workers. The Americans with Disabilities Act
(ADA) provides protections to pregnant workers; the Pregnancy
Discrimination Act outlaws pregnancy discrimination; a 2015 Supreme
Court ruling affirmed that employers must treat pregnant workers
equally and fairly; and states, including my state of Kentucky, have
passed laws protecting pregnant workers. The Equal Employment
Opportunity Commission, the primary federal agency that enforces civil
rights laws against workplace discrimination, has stated that the ADA
requires employers to accommodate pregnancy-related limitations.
Republicans in Congress have long supported meaningful and clearly-
defined protections for pregnant workers that ensure they are not being
unlawfully discriminated against as it relates to pregnancy,
childbirth, or related medical conditions. We should promote policies
in Washington that encourage a strong family, allow families to
flourish, and protect life at all stages.
The purpose of America's nondiscrimination laws, and the agencies
enforcing them, is to give all Americans equal opportunities to
succeed. That being said, overzealous government intervention often
causes more harm than good. While we are committed to preventing and
combating unlawful discrimination, we should carefully examine
legislation that could cause confusion and prove difficult to
implement.
We should prioritize discrimination policies that are responsible
and effective so our nation's workers and job creators can flourish,
and America's workplaces can be free from discrimination.
The Committee should review and evaluate the federal laws already
on the books that provide protections for pregnant workers, as well as
the specific provisions in H.R. 2694, before advancing legislation that
could have unexpected consequences. The hearing today is a starting
point in this regard.
Bottom line, pregnant workers should be protected and reasonably
accommodated in the workplace.
So, I look forward to hearing from our witnesses today as we
examine the Pregnant Workers Fairness Act.
______
Chairwoman Bonamici. Thank you. Without objection, all
other Members who wish to insert written statements into the
record may do so by submitting them to the Committee
electronically in Microsoft Word format by 5:00 pm on November
4th, 2019.
I will now introduce our witness for the first panel.
Congressman Jerrold Nadler represents New York's 10th
Congressional district. Congressman Nadler is the Chairman of
the House Committee on the Judiciary. For more than 30 years,
Chairman Nadler has been on the frontlines in the fight for
civil rights, and he has been a relentless defender of our
country's fundamental promise of equality for all.
Congressman Nadler has played a significant role in the
fight for women's rights, serving as a central figure in the
reauthorization of the Violence Against Women Act, and he is
the author of the Pregnant Workers Fairness Act.
We appreciate the witness for being here today and look
forward to your testimony. Let me remind the witness that we
have read your written statement and it will appear in full in
the hearing record, pursuant to Committee Rule 7(d) and
committee asks to limit your oral presentation to a five minute
summary of your written statement.
Before you begin your testimony, please remember to press
the button on the microphone in front of you. We know you know
this. And as you begin to speak, the light in front of you will
turn green and after four minutes it will be yellow to signal
you have one minute remaining and when it turns red, your five
minutes have expired and we ask that you wrap up. And I now
recognize Chairman Jerrold Nadler for your testimony.
TESTIMONY OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Nadler. Thank you, Chair Bonamici and Ranking Member
Comer for holding this hearing today and inviting me to testify
about my bill, the Pregnant Workers Fairness Act. This hearing
is, as its title indicates, long overdue. Pregnancy
discrimination is not a new issue. For as long as women have
been in the workforce, they have been fired, passed over for
promotion or hiring, had their work cut back or forced to leave
when they became pregnant or started the family.
In the last six months, we have seen multiple media reports
about workers forced off the job while pregnant because they
needed a simple fix to keep working.
Pregnancy is not a disability. Sometimes, due to
complications or even in healthy pregnancies, workers need a
reasonable accommodation from their employer, such as a stool,
an extra bathroom break, limiting contact with certain
chemicals or reducing the amount of lifting they do.
These accommodations are short in duration and typically
cost very little to provide. However, for millions of pregnant
workers, they are critical.
A simple accommodation could mean the difference between
staying on the job or being forced out on leave. The difference
between keeping the health insurance and paycheck or putting
their pregnancy at risk. In 1978, Congress passed the Pregnancy
Discrimination Act in an effort to stop employers from treating
their pregnant employees this way. The law prohibited
discrimination on the basis of pregnancy, childbirth or related
conditions.
Over the last 40 years, courts have interpreted the law to
mean that if you treat your non-pregnant employees well, you
have to treat your pregnant employees well.
Of course, the inverse is also true. If you treat your non-
pregnant employees terribly, you have every right under the law
to treat your pregnant employees terribly. In 2015, the Supreme
Court attempted to address how the Pregnancy Discrimination Act
interacted with the need for pregnancy accommodation in the
workplace.
But the court's decision only exacerbated the problem in
the end. In Young v. UPS, the Court found that in order to
receive an accommodation, a pregnant worker has to prove that
her employer accommodated non-pregnant employees who are
similar in their ability or inability to work. That test places
a huge burden on pregnant workers. It requires them to have
detailed knowledge of the medical and employment history of
every other employee. Women must prove that their need for an
accommodation is just as valid as their male counterpart who,
for example, had a hernia.
For most workers in this country, especially low wage
workers, there is simply no way to get that information and
prove that case.
That is why a recent report from A Better Balance found
that courts sided with employers in two thirds of pregnancy
accommodation cases post Young.
The burden the Young decision places on pregnant workers to
prove their case, is, for most pregnant women, insurmountable.
Since Young, other Members of Congress have introduced
legislation to address pregnancy accommodation, including a
bill introduced last week by my Republican colleagues, Mr.
Walberg and Ms. Wagner.
This new legislation appears to be based on the Young test
and requires that employers provide an accommodation for some
of their non-pregnant employees. They must do so for pregnant
employees in similar working conditions. I am happy to see this
additional interest in ensuring that pregnant workers have the
accommodations they need to stay on the job, but the problem
with Young and therefore the problem with Mr. Walberg and Ms.
Wagner's proposal, is that they require pregnant workers to
prove that they have been discriminated against in order to
access accommodations, but it doesn't have to be that
complicated. That is why I introduced the bipartisan Pregnant
Workers Fairness Act. The bill is simple and creates an
affirmative right to an accommodation, rather than relying on a
model of discrimination. Using the framework and language of
the ADA, it requires employers to provide reasonable
accommodations to pregnant workers as long as the accommodation
does not impose an undue hardship on the employer. Those
accommodations would be available for pregnancy, childbirth or
related conditions including lactation.
Courts know exactly how to interpret that language. There
are three decades of ADA case law to guide them. Employers
similarly have worked within ADA's requirements for decades and
know exactly what their responsibilities will be. But most
importantly, women who have the certainty--they can safely stay
on the job, as long as they choose, during their pregnancy, and
keep their paycheck and their health insurance throughout.
We know that this framework for pregnancy accommodation
works because we have seen it in action. To date, 27 states
around the country have passed pregnancy accommodation laws
similar to the Pregnant Workers Fairness Act. States like New
York, Nebraska, Washington state, most recently South Carolina
and Kentucky have all passed legislation to provide reasonable
accommodation in a bipartisan manner.
Here in the House, the bill has over 100 bipartisan
cosponsors and is supported by a broad range of health, labor,
business and women's rights' organizations. Thank you again,
Chair Bonamici and Ranking Member Comer. I look forward to
continuing to work with you and this committee to move this
critical piece of legislation forward.
[The statement of Mr. Nadler follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Bonamici. Thank you, Chairman Nadler. I want to
thank you for taking your time to testify before the committee
today. Your testimony is a valuable piece of legislative
record. We will now seat the second panel. Thank you.
Thank you to the witnesses and the committee staff for that
smooth transition. I will now introduce our witnesses for the
second panel. Ms. Kimberlie Michelle Durham is from is from
Arab, Alabama. Ms. Durham made the trip here to Washington D.
C. to share her story. Formerly, an emergency medical
technician in Alabama, Ms. Durham was forced off the job when
she became pregnant.
Next, Ms. Iris Wilbur, joined Greater Louisville Inc., the
Metro Chamber of Commerce in 2016. She serves as their vice
president of government affairs and public policy. In her role,
she works on policy and legislation at the local, state and
federal levels to help advocate for the region's business
community.
Ms. Ellen McLaughlin is a partner in the Chicago office of
Seyfarth Shaw LLP and former Chair of the Labor and Employment
Law Department.
Ms. McLaughlin is engaged in a broad-based employment law
practice, specializing in Federal and state court and
administrative agency employment litigation.
Ms. Dina Bakst is co-founder and co-President of A Better
Balance. A leading national legal advocacy organization
headquartered in New York City. A Better Balance is dedicated
to advancing the rights of working families, promoting fairness
in the workplace and helping workers across the economic
spectrum care for themselves and their families without risking
economic security.
We appreciate all of the witnesses for being here today and
we look forward to your testimony. Let me remind the witnesses
that we have read your written statements and they will appear
in full in the hearing record. Pursuant to Committee Rule 7(d)
and committee practice, each of you is asked to limit your oral
presentation to a five minute summary of your written
testimony.
Let me remind the witnesses that pursuant to title 18 of
the US Code, Section 1001, it is illegal to knowingly,
willfully falsify any statement, representation, writing,
document or material fact presented to Congress or otherwise
conceal or cover up material fact.
Before you begin your testimony, please remember to press
the button on the microphone in front of you so that it will
turn on and Members can hear you.
As you begin to speak, the light in front of you will turn
green. After four minutes, the light will turn yellow to signal
that you have one minute remaining and when the light turns
red, your five minutes have expired and we ask that you please
wrap up your testimony.
We will let the entire panel make their presentations
before we move to Member questions. When answering a question,
please again remember to turn your microphone on. So I will
first recognize Ms. Durham. Welcome to the committee. You are
recognized for five minutes for your testimony.
TESTIMONY OF KIMBERLIE MICHELLE DURHAM
Ms. Durham. Good morning, my name is Michelle Durham and I
am a mom from Arab, Alabama. I want to thank Congresswoman
Bonamici, Congressman Comer and the subcommittee Members for
having me here today.
I've lived my whole life in Alabama and yesterday was the
first time I've ever been on a plane. It was a little scary,
but I was glad to make the trip. I want you to know what
happened when I became pregnant four years ago. They say that
pregnancy is supposed to be a time of happiness, but my
pregnancy was filled with anxiety and fear because my employer
sent me home without pay right when I needed a paycheck the
most.
That's not the way things should be. In March 2015, when I
was 22 years old, I began working for Rural Metro Corporation
in Gadsden, Alabama. I was an EMT, or an emergency medical
technician.
It was my first job after getting my certificate and I was
excited to work. My plan was to gain experience and save up so
I could continue my training and eventually become a paramedic.
About six months after I started working for Rural Metro, I
learned I was pregnant with my first child. During one of my
first prenatal appointments, I was told that I shouldn't lift
anything over 50 pounds, a standard across the board.
Because my job required me to lift patients in stretchers
which weighed 100 pounds without a patient on them, I knew that
I would have to ask Rural Metro to temporarily reassign me so I
could follow my healthcare provider's orders. I didn't think it
was a problem because I knew that Rural Metro had a policy of
giving light duty jobs to EMTs when they had problems, like a
back injury.
I also knew that they had dispatcher jobs available that I
could do and that wouldn't involve any lifting, but I was very
wrong. My manager told me that the company only gave light duty
jobs to EMTs who were injured while working. He told me my only
option was to take an unpaid leave of absence.
The H.R. department backed him up and told me I had to go
home. I was shocked. I wanted to work. I loved my job. I really
wanted to be an EMT and I needed my paycheck. All I could think
about was how I was supposed to live for six months without
income of any sort. How was I supposed to prepare for my son to
come home? I was afraid for him and for me. I soon realized
that I needed help and I called a lawyer in Birmingham, Heather
Leonard. She contacted the company and told them what they were
doing was illegal and that a recent Supreme Court decision was
on my side. Rural Metro never even responded to her.
After that, we went to the EEOC and then to court. My
experience in the court system has been tough. The judge ruled
against me and my case is on appeal and I've got the ACLU
helping me and I am very grateful for them. But the truth is I
didn't want to hire a lawyer, I didn't want to go to court, I
just wanted to keep working.
After Rural Metro forced me to take leave in September of
2015, I was unemployed for about 7 months. I looked really hard
for a job and I couldn't find one. I couldn't pay my rent. I
had to move back home with family. I was excited about meeting
my new baby, but his birth was terrifying. I was worried all
the time about how I would provide for him and I racked up a
lot of credit card debt trying to take care of us and pay off
for my EMT certifications.
I actually still have a hospital bill from when I gave
birth to him in March of 2016 because I didn't have health
coverage. I eventually found a job in a factory, but it didn't
come with overtime or benefits like my Rural Metro job did and
I later had to take a second job in a fast food restaurant to
help pay my bills.
Recently, I had to change jobs again and I am now a manager
in a pet store. I still don't have health insurance though and
my son is on Medicaid.
My son is three and he is my greatest joy and I wouldn't
trade being his mom for anything, but I'll never get back those
months before he was born and after--all I could think about
was what I was losing while I was pregnant. The worry and the
fear.
I hope that Congress passes the Pregnant Workers Fairness
Act because what happened to me was wrong. Women and families
need a law that tell their employer that they have to explore
different options that will help pregnant workers keep their
job. Employers should not just be able to say no when a
pregnant worker asks for a temporary change. They should have
that right to work it out.
Please, use your power to help pregnant workers take care
of themselves, their babies and their families and I want to
thank you for listening to my story today.
[The statement of Ms. Durham follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Bonamici. Thank you so much for your testimony
and for making your first plane trip here. We are glad you did.
I now recognize Ms. Wilbur for five minutes for your testimony.
TESTIMONY OF IRIS WILBUR, VICE PRESIDENT OF GOVERNMENT AFFAIRS
& PUBLIC POLICY, GREATER LOUISVILLE INC.
Ms. Wilbur. Good morning. I am Iris Wilbur and I represent
Greater Louisville Inc., the Metro Chamber of Commerce. Thank
you, Chair Bonamici, Ranking Member Comer and the subcommittee
for the opportunity to explain why GLI strongly supports the
Pregnant Workers Fairness Act. Today, we live in a world where
businesses need every person who can work, participating in the
labor force. On behalf of our 1,700 plus small, medium and
large companies our chamber represents, this is the most
pressing topic among our membership.
We must do what is necessary to attract and retain
employees and sometimes that means working around their
personal situations like pregnancies.
This is particularly true for the 58 percent of women in
Kentucky's labor force who are of childbearing age. Businesses
also want healthy workforces, especially in Kentucky where
healthcare is a major industry.
Healthcare is a female dominated sector, so we not only
want to retain women workers, but we want to keep them healthy
and advancing in their careers.
Over the last year, GLI worked with our membership and
helped pass Kentucky legislation called the Pregnant Workers
Act, a law designed to help combat discrimination and promote
women's labor force participation. What we discovered among our
membership was that most large company HR departments had the
resources to stay current on changes in the law but many small
to midsize companies were forced to navigate complex
circumstances like pregnancy and related medical conditions
without the aid of a robust H.R. department or in house
counsel. We saw an opportunity to search for a solution and
prevent problems before they start and found the state proposal
to be a strong pro-business bill that will have a positive
impact on Kentucky's economy.
The Kentucky law parallels the proposed Federal Pregnant
Workers Fairness Act in that it applies to employers with 15 or
more employees and how to provide accommodations for pregnant
workers, unless it constitutes an undue hardship for the
employer. The Kentucky law defines reasonable accommodations
and provides businesses with guidance about when an employer is
and is not obligated to provide them. Our pro-business, pro-
workforce bill not only earned endorsements from the Kentucky
chapters of March of Dimes, United Way, Fraternal Order of
Police and Nurses Association but also passed with overwhelming
bipartisan support in the general assembly with over 80 percent
of our legislators voting yes and then signed into law. The
bill was championed by Republican Senator Alice Forgy Kerr with
bipartisan co-sponsors.
Although we passed the law in Kentucky, we still need the
Federal PWFA. GLI covers 15 counties, 5 in southern Indiana,
home to many multistate businesses and headquarters so the
ability to have uniformity related to these accommodations
throughout the country is important. This is why we urge
Congress to take action.
Just like the Kentucky law, the much-needed clarity
outlined in the PWFA will increase the potential to resolve
reasonable accommodation requests quickly and informally and
reducing the potential for costly litigation. We believe that
the Act will lead to reduction, non-increase in litigation for
precisely this reason.
At least two states with these laws have reported reduction
in litigation since these laws went into effect. For our
members, uncertainty means dollars. A consistent and
predictable legal landscape means a business-friendly
environment. Before Kentucky's law was enacted this Summer, our
employers were forced to navigate a complex web of Federal laws
and court decisions to figure out their obligations. And now
this guidance is especially beneficial for the smaller
companies we represent who cannot afford expensive legal
advisors.
Additionally, the Act will help boost our country's
workforce participation rate among women. In states like
Kentucky, which ranks 44th in the nation for female labor
participation, we know one contributor to this abysmal
statistic is a pregnant worker who is forced out or quits a job
due to a lack of reasonable workplace accommodations.
By clearly laying the groundwork for an informed dialogue
between employers and employees, women can continue working
safely and productively throughout the course of a pregnancy
and afterwards.
Finally, the Act includes pro-business safeguards to ensure
these accommodations will not cause financial harm to a
business or significantly interfere with day to day operations.
While most pregnancy accommodations are low cost, a stool
to sit on, access to water to stay hydrated or a modified work
schedule like the ADA, the law includes an undue hardship
standard that would exempt employers if the accommodation would
cause significant difficulty or expense. There is a clear
bottom line here. The Act is pro-business and pro-workforce and
GLI urges Congress to pass the Pregnant Workers Fairness Act.
Thank you.
[The statement of Ms. Wilbur follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Bonamici. Thank you for your testimony. I now
recognize Ms. McLaughlin for five minutes for your testimony.
TESTIMONY OF ELLEN McLAUGHLIN, PARTNER, SEYFARTH SHAW LLP
Ms. McLaughlin. Thank you, Chair Bonamici, Ranking Member
Comer and Members of the subcommittee. Thank you for giving me
the opportunity to testify here today on the Pregnant Workers
Fairness Act. My name is Ellen McLaughlin, I am a partner in
the law firm Seyfarth Shaw although today I testify on my own
behalf.
I have practiced law exclusively in the employment arena
for over 38 years defending employers before administrative
agencies as well as in state and Federal courts. A significant
portion of my practice is dedicated to providing advice and
counsel on accommodation and leave issues.
I have coauthored comments to the EEOC's proposed
regulations to the ADA as well as the amendments Act. I also
coauthored comments to the DOL's FMLA proposed regulations back
in 2008 and even this year when DOL has proposed using new
forms.
Finally, in June 2011, I was one of two management
attorneys in the country invited by the EEOC to testify at a
public hearing on the issue of leave as an accommodation. The
purpose of my testimony is not to take a position on this bill
but rather to briefly describe the protections currently
afforded to workers who are pregnant and raise questions that I
hope the subcommittee will consider regarding the proposed
legislation.
There are three primary laws at the level affording
protection to pregnant workers. The Pregnancy Discrimination
Act, which provides that an employer violates Title VII if it
intentionally discriminates against an employee due to their
pregnancy. If a worker is temporarily unable to perform her job
duties due to a medical condition related to that pregnancy or
childbirth, the PDA mandates that an employer must treat her in
the same way as it treats other temporarily disabled employees.
The ADA Amendments Act broadened the definition of
disability such that pregnancy related restrictions may
constitute a disability, thus triggering the employer's duty to
reasonably accommodate and Federal court decisions have
specifically held that pregnancy related medical conditions are
disabilities. And finally, the FMLA provides that a pregnant
employee can take 12 weeks of job protected leave in a 12 month
period due to pregnancy, including on an intermittent basis.
State laws, there are approximately 25 of them. I guess 27
now that do provide protection, but they have varying
definitions of what a known limitation is, ranging from New
York's law that references inhibiting the exercise of a normal
bodily function to the Illinois law, my home state that
references any medical or common condition that relates to
pregnancy. It is against this existing legal landscape that
have this present bill that talks about mandating reasonable
accommodations to the known limitations related to pregnancy,
absent undue hardship.
But the phrase ``know limitations'' is not defined in the
bill. It is clearly different than the definition of a covered
disability under the ADA and while the definition of the
disability under the ADA may not be perfect, it has been
interpreted by courts over a period of years and employers are
familiar with its standards. Given the bill's language, it
appears that any limitation of any type for any duration may be
covered as long as the employer is aware of it.
The bill also does not address another key provision from
the ADA, which is a reasonably accommodation statute and that
is essential job functions. Under the ADA, an employer need not
provide the accommodation when an employee remains unable to
perform the essential functions of the job, even with the
accommodation by eliminating the essential function criteria,
the bill appears to require that employers keep the employee on
the job, regardless of their ability to continue to perform the
core functions.
Finally, the bill does not address other key issues that
are explicitly addressed by the ADA such as not including a
defense that an employee may not pose a direct threat to the
health and safety of themselves or others and it is also
unclear as to what happens if the accommodations sought by the
employee creates an undue hardship and weather the employer
would then be able to put the employee on leave. In conclusion,
I believe the legislation does not address some key issues and
questions that are important, especially the lack of a
definition for its most fundamental term, known limitations,
and the lack of any reference to essential job functions.
I believe the issues I have raised are appropriate as this
committee works through this legislation and considers the
purpose and practical effect of this bill on the already
complex matrix of federal and state laws on this subject, thank
you.
[The statement of Ms. McLaughlin follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Bonamici. Thank you for your testimony. I now
recognize Ms. Bakst for five minutes for your testimony.
TESTIMONY OF DINA BAKST, J.D., CO-FOUNDER & CO-PRESIDENT, A
BETTER BALANCE: THE WORK & FAMILY LEGAL CENTER
Ms. Bakst. Thank you, Chair Bonamici, Ranking Member Comer
and Members of the subcommittee for the opportunity to testify
today.
Almost 41 years ago, Congress passed the Pregnancy
Discrimination Act to guarantee equal opportunity for millions
of working women, but I am here to tell you that pregnant women
in this country are still often treated as second class
citizens.
Despite the promise of the PDA, pregnancy discrimination
remains rampant in America and a key barrier to gender
equality. One very common form, especially impacting women in
low wage and physically demanding jobs, predominantly women of
color, is when pregnant women are fired or forced out rather
than provide temporary job modifications that would allow them
to keep working.
Women often face an impossible choice: stay on the job and
risk their health or lose their paycheck when they need it
most. And unfortunately, at A Better Balance, we have heard
hundreds of these stories from workers we have spoken with over
the years. Women like our former client, Betsada Cruz-Cardona,
a cashier from upstate New York, who was told she should just
``Stay home. Take care of pregnancy and rest'' after handing in
a doctor's note with a lifting restriction, even though she
could have easily been accommodated and desperately wanted to
continue working. With no paycheck, Betsada wound up homeless
and had to rely on family and friends for shelter, living from
couch to couch as she prepared to become a mom.
The economic wellbeing of most Americans' families today is
dependent on working mothers.
When women like Betsada lose out on critical income, they
not only suffer in the short term, they forfeit other long term
benefits earned on the job, contributing to their economic
inequality and exacerbating the wage gap. When pregnant women
are denied workplace accommodations, we know their health often
suffers too.
I'll never forget one pregnant cashier who was told she
could not carry a water bottle on the job. She wound up in the
ER due to severe dehydration after fainting and collapsing on
the retail floor.
Other health risks associated with failure to accommodate
include urinary tract infections, fainting, preterm birth, low
birth weight and even miscarriage as evidenced by the
experience of our client Tasha Morelle, who was featured in a
front page New York Times story last year. These options risk
your health or lose your paycheck reinforce the stereotype that
pregnancy, motherhood and employment are irreconcilable and
defy the purpose of the Pregnancy Discrimination Act. Almost 5
years ago, the Supreme Court addressed the application of the
PDA to workplace accommodations in Young. Unfortunately, the
multistep evidentiary framework established by the Court's
majority and the unique burden it places on pregnant workers to
provide a wide range of evidence of non-pregnant comparators to
prove their employer's intention was discriminatory has made it
difficult and often impossible for pregnant workers to succeed
in court post Young and get the accommodations they need. This
standard is also tone deaf to the realities of the American
workplace where pregnant workers typically lack access to their
coworkers' workplace accommodation requests, personnel files
and simply lack the luxury of time and certainly the resources
to sort out these questions. The ADA by contrast offers workers
with disabilities the explicit right to accommodations absent
undue hardship.
They can completely bypass this burden of proving that a
coworker was accommodated first however most pregnant workers
with medical needs are not deemed disabled under the ADA and
failed to trigger its protections.
There is a solution. The bipartisan PWFA would address this
gap in the law and fulfill the intent of the PDA. Specifically,
the PWFA would require employers to make reasonable
accommodations for employees who have a limitation stemming
from pregnancy, childbirth or related medical condition unless
the requested accommodation would impose an undue hardship.
The same familiar process in place for workers with
disabilities. The PWFA would also ensure that a worker cannot
be forced to take leave if another accommodation can keep her
worker and healthy. Like the ADA, the law would encourage a
productive and formal dialogue between employee and employer
rather than stressful and time-consuming litigation, as we know
firsthand this is precisely what most pregnant women need and
want. They need clear rights and an immediate solution to stay
that allows them to follow their doctor's orders and stay
attached to the workforce.
Requiring a pregnant worker to jump through legal hoops to
get a medically necessary accommodation is a fundamental
deterrent to justice and equality. State legislators on both
sides of the aisle have recognized that accommodating pregnant
workers is smart public policy as well and are taking action.
As you heard, there are now 27 states from New Jersey to
Kentucky that provide it. At ABB we see these laws are working.
For example, thanks to New Jersey's law, a public employee,
Takira Woods was quickly able to follow her doctor's orders and
return to work in a light duty position. Yet while states have
improved workplace conditions for thousands of women, job
protection and a healthy work environment should not depend on
luck or location.
The PWDFA would finally ensure that pregnant workers in
every corner of the country stand on equal footing in the
workplace. No one should have to choose between her job and a
healthy pregnancy. It's time for Congress to step up and pass
this critical legislation. It's long overdue, thank you.
[The statement of Ms. Bakst follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Bonamici. Thank you for your testimony. Under
Committee Rule 8(a), we will now question witnesses under the
five minute rule, alternating between the parties and I
recognize myself for five minutes.
Ms. Durham, I understand that you demonstrated to the court
that your employer was accommodating your similarly situated
coworkers who had similar light duty lifting restrictions but
they didn't offer the same accommodations to you while you were
pregnant so what did you think? How did you feel when you
learned that even though you proved that others got
accommodations, it wasn't enough for you to win your case?
Ms. Durham. Honestly, it felt very discouraging. It felt
like it was a misunderstanding which is why I contacted the
lawyer in Birmingham about it. The original intent in what we
had done was to send them a letter to hopefully clear this up
because it really did just seem like it was a big
misunderstanding. They were already accommodating others who
had restrictions.
Chairwoman Bonamici. Ms. Bakst, is Ms. Durham's experience
common and if so, how would the Pregnant Workers Fairness Act
address the issues she faced in court?
Ms. Bakst. Yeah, unfortunately it's all too common and our
recent report, Long Overdue, as you mentioned earlier, we found
that in over two thirds of cases, pregnant workers are losing
their accommodation cases post Young and in over 70 percent of
those cases, they are losing their cases because they are
unable to identify a sufficiently valid comparator or a
comparator at all. And that is a real barrier to equality and
justice for pregnant women. There is another worker, her name
is Cassandra Aducci. One of her cases that really stands out,
Cassandra worked part time loading and unloading boxes in
Tennessee. She requested light duty also per her doctor's
orders and the company refused to also accommodate her and
pushed her out on unpaid leave.
She presented the court a spreadsheet of 261 other
employees that were provided light duty and also pointed to a
coworker that was provided light duty. The court rejected this
evidence since the spreadsheet did not have detailed
information about other employees' ability or inability to
work. And so therefore, they were insufficient comparators.
This is truly an insurmountable and extraordinarily difficult
burden for a pregnant worker to meet.
Chairwoman Bonamici. Thank you and Ms. Bakst, I want to
follow up on some testimony from Ms. McLaughlin. Ms.
McLaughlin, in her testimony was expressing concern about the
Pregnant Workers Fairness Act, the use of the term known
limitation and Ms. McLaughlin stated that ``the phrase no
limitation is clearly different than the definition of a
covered disability under the ADA'' so I wonder if you could
take a minute and respond to that concern and what pregnancy
related impairments or disabilities have the courts deemed not
covered under the ADA or the ADA Amendment Act and how would
the Pregnant Workers Fairness Act address this?
Ms. Bakst. Sure, so to take the first question, I would say
yes. I mean the intent of the Pregnant Workers Fairness Act is
precisely to ensure coverage for pregnant workers with
limitations or medical needs stemming from pregnancy that don't
qualify as covered disabilities under the ADA.
Those limitations that could jeopardize a pregnant worker's
health but that aren't deemed disabilities yet. That's why it's
not a covered disability under the ADA but please note that the
PWFA borrows very familiar standards from the ADA like
reasonable accommodations on undue hardship and the interactive
process so the fundamental nature of the law, the fundamental
framework is similar but covered disabilities, no, it's not in
the PWFA context precisely because those are the women that
pregnant workers are often not found to have qualified
disabilities. And to answer the question, the question about
the ADA and who was not covered: we have seen that courts
interpret the ADA--even though it was amended in 2008 and I
will say that there are a pool of workers--let's say a worker
with gestational albuminuria and there have been courts that
have ruled that there are workers with pregnancy related
complications that should be covered under the ADA and that are
but there are a lot that we have reviewed that are not and it's
actually quite alarming.
For example, Tanya Oliver from Pennsylvania had high risk
medical complications associated with high risk pregnancy with
triplets and needing surgery at the time of birth and the
courts said no the ADAAA doesn't protect her because high risk
pregnancy is not enough. Or Silvier Won-Anusi who went to the
ER while pregnant, was diagnosed with hyperemesis of pregnancy,
a form of morning sickness and hypokalemia, a low level of
potassium. The court also said not a disability. Jennifer
Alger, she experienced severe complications and bleeding at
work but in 2016 the court said she failed to show that her
pregnancy related complications constituted a disability under
the Americans with Disabilities Act. That is unacceptable.
Those women need clear rights to accommodations so they can
follow their doctors' orders and stay healthy and on the job.
Chairwoman Bonamici. Thank you, I see my time is just about
to expire. I just wanted to thank Ms. Wilbur for bringing the
business perspective. I spoke with our state labor commissioner
and that was part of a conversation when Oregon passed its bill
too that the business community really wanted that certainty so
I don't have time for a question but I wanted to thank you for
bringing that perspective and I now yield five minutes to Mr.
Thompson from Pennsylvania for your question.
Mr. Thompson. Thank you, Madam Chair. Thank you, ladies,
for being here. It's a really important hearing and topic. Ms.
McLaughlin, thank you for being here. Discrimination of any
type should not be tolerated, and I certainly should strongly
support the federal laws that protect pregnant workers such as
Pregnancy Discrimination Act, PDA of 1978 and the American
Disabilities Act. The PDA forbids discrimination based on
pregnancy when it comes to any aspect of employment and
furthermore, the ADA requires that employers make reasonable
accommodations for individuals who have a physical or mental
impairment that substantially limits one or more major life
activities.
Major life activities include performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting
or bending. Now while pregnancy is not apparently in itself--
the ADA covers impairments related to pregnancy which can
affect major life activities such as walking, standing and
certainly lifting.
Ms. McLaughlin, under the ADA, employers may have
qualification standards such as physical, medical, safety and
other requirements that may negatively impact certain
individuals. Is there a similar provision in H.R. 2694?
Ms. McLaughlin. No, there is not.
Mr. Thompson. What is the purpose of the ADA provision?
Ms. McLaughlin. So under the ADA, a qualification standard
would basically mean that you have a job standard that applies
equally to everyone but may have some sort of an impact on a
protected group of under the ADA, disabled individuals and then
the employer needs to make certain that standard is job related
and consistent with business necessity. By way of example, if
you had a police department that required all of its officers
to be able to respond to a forcible arrest call and perform
those job functions, that's a very physical attribute and it
may have an impact on somebody who has a disability. And
likewise, frankly, it may have an impact on a pregnant worker
who was unable to respond to their essential function of
responding to a forcible arrest so the qualification standard
is very much like the essential job functions. It's just kind
of a different way of putting it in terms of impact but not
included in this current bill.
Mr. Thompson. H.R. 2694 includes the term ``known
limitations'' as we've heard relating to pregnancy. How does
the bill define ``known limitations?''
Ms. McLaughlin. And this is one of my big concerns with the
bill. It's that known limitations is not defined so if it is
going to be defined as not a disability, not a physical or
mental impairment that substantially limits a major life
activity that is the ADA definition, what is it? I really think
employers need to know that so both the employer and the
employee community going forward understand what their
obligations are.
Mr. Thompson. Are there any restrictions to these
limitations?
Ms. McLaughlin. There are none.
Mr. Thompson. Outside this bill, is this a well-defined
legal term?
Ms. McLaughlin. I think you can tell by the various
definitions that all of these states have used that it isn't.
All of the states use very different words to express what they
mean by known limitation and at least as far as I know, it's
not a term of art that is known by either the employer or the
employee community.
Mr. Thompson. In the effort to prevent discrimination of
pregnant workers, which I am fully supportive of, does H.R.
2694 improve clarity for protections of these employees or does
H.R. 2694--in its current form with--
Ms. McLaughlin. I mean I think in its current form, it is
missing some key terms. Definition of known limitations,
essentially job functions, qualification standards, what if the
pregnant worker is a direct threat in certain safety sensitive
jobs, do the health and safety of themselves or maybe to
others--so I think because it could be improved, it is not as
clear as it could be.
Mr. Thompson. Once again, I really want to make sure that
we do everything we can to prevent discrimination for pregnant
workers. I think that's incredibly important and it's important
enough that we get it right. I am not sure that H.R. 2694 in
its current form provides that type of clarity. Thank you,
Madam Chair and I yield back.
Chairwoman Bonamici. Thank you. I now yield five minutes to
Dr. Schrier from Washington for your questions.
Dr. Schrier. Thank you, Madam Chair. First, I would like to
submit for the record a letter from the National Women Infant
and Children Association or WIC endorsing Pregnant Workers
Fairness Act into the record.
Chairwoman Bonamici. Without objection.
Dr. Schrier. I had a high-risk pregnancy, complicated by
both advanced maternal age which I call elderly mom syndrome at
age 40 and 24 years of Type I diabetes and I worked until two
days before my C-section. This is because I was fortunate that
my employer allowed for minor accommodations, very minor
accommodations that allowed me to continue to work. And we need
to remember that women are half of our workforce and I would
add to that they tend to do better in college and are excellent
in their jobs. 75 percent of those women will become pregnant
at some point and it should be plainly obvious that we should
support pregnant people in their pregnancies just like we
should support prenatal care, immunizations, affordable child
care and public education. This is just how we make our society
better.
In healthcare it is wildly understood that preventative
measures and addressing smaller issues before they escalate are
ways to lessen the cost of care.
Hospital bills can cost between 5,000 and 11,000 dollars
just for a regular pregnancy labor delivery plus all the costs
that come from preparing for and taking care of the baby.
Now it costs all of us, when we don't do that and when a
baby is born at 24 weeks and requires months in the NICU. I
have taken care of those babies. It costs us all when a fetus
is exposed to toxins in utero and that results in an unhealthy
child who might need public support for the rest of his or her
life because we couldn't protect the mother from an unhealthy
environment and it cost us all when we lose our workforce
because pregnant women and mothers are not welcomed and
supported in the workplace.
So Ms. Durham, my first question is to you and first, thank
you so much for sharing your story and I am so sorry for the
pain and the anxiety and the financial hardship that you had to
go through really unnecessarily. I also, as you heard, had a
high-risk pregnancy and in your remarks, you discussed how
losing your job did not just affect planning for the birth but
also for your plans to support your child long term. There are
a lot of costs in pregnancies that aren't even related to the
birth. Car seats, diapers, doctor appointments, et cetera.
Would you speak to your experience? What did you have to do to
support your son since losing your job at rural metro?
Ms. Durham. Actually, I have changed a lot of jobs recently
trying to keep up with that pay and everything else that I need
to support him. I have been very fortunate. I have a very good
support system back home between my family and my friends and I
have gotten several gifts and hand me downs and help in that
department, but it has been very hard.
Childcare, in and of itself is expensive, even in my state
where a lot of costs are lower. It's just been a rough trip and
we take it day by day and we do what we have to do to get
there.
Dr. Schrier. Thank you. And Ms. Bakst, thank you so much
for your work to strengthen protections for pregnant workers.
In your remarks, you stated that two thirds of women have lost
their PDA pregnancy accommodation claim post the 2015 court
case Young v. UPS. Accommodations are important. Heavy lifting
can result in those pre term births. Exposure to environmental
toxins can result in harm to the mother and the fetus,
pregnancy reduced hypertension can have devastating outcomes,
including maternal death.
They used to say that pregnancy was like having one foot in
the grave. In your opinion, how will adequate accommodations
improve the life outcomes of the pregnant worker and do you
foresee a direct relationship between maternal death rates and
pregnant worker protections?
Ms. Bakst. Yeah, I think that time and time again we see
how affording pregnant workers temporary and modest
accommodation serves to keep them healthy and maintain a
healthy pregnancy and prevent complications down the road,
keeping them out of the hospital, exacerbating healthcare
savings costs. As you said, a minor, temporary accommodation,
whether that's a stool, extra bathroom break, temporary relief
from heavy lifting, which let me clarify is not a disability
but is often something--a need that arises from pregnancy where
women don't have a disability yet but why should a woman have
to risk her health and potentially develop a complication or a
qualified disability in order to trigger the law's protection.
That does not--it defies common sense in a time where we are so
concerned about maternal mortality and maternal health,
especially for low income women, women of color where they know
that these problems are really severe. We should be doing
everything in our power to make sure that these women can
maintain healthy pregnancies and prevent complications before
they start.
Dr. Schrier. Thank you. I think I am out of time.
Chairwoman Bonamici. I now recognize the Ranking Member of
the full committee, Dr. Foxx from North Carolina for five
minutes for your questions.
Mrs. Foxx. Thank you, Madam Chairman and I want to thank
our panel for being with us today. I want to say that I worked
when I was pregnant up to the very day that I delivered my
daughter and went to the hospital at midnight. I actually went
to class that night from 7-10 and then went to the hospital at
midnight so I was very active up until the moment she was born.
Ms. McLaughlin, you discussed in your testimony the Pregnancy
Discrimination Act and the Americans with Disabilities Act as
amended. Were these laws broadly written to cover a wide range
of experiences and circumstances? In your opinion, has the ADA
provided protections to pregnant workers?
Ms. McLaughlin. Both of these laws--
Mrs. Foxx. Would you turn your microphone on?
Ms. McLaughlin. I do think both of these laws were very
broadly written. The PDA has very broad language about anti-
discrimination and how, again, post Young, an individual would
prove that there has been discrimination but more so the ADAAA
back in 2008 when it was amended--and I think it's best said in
a law review article that I did cite in my written testimony by
Joan C. Williams, A Sip of Cool Water: Pregnancy Accommodation
after the ADA Amendments Act. That's a Yale law review article
that basically focuses on the fact that the amendments Act
pretty much did away with the duration requirement and there is
a specific reference to that in both EEOC guidance on pregnancy
discrimination as well as regulation under the ADA that says
impairments of short term duration under six months can be
impairments and you combine that with the expansion of the
definition of major life activities to add more major life
activities, including bodily functions and then finally a more
favorable and employee friendly substantially limits standard.
You put all those together and pregnant workers with
limitations even if they are of more short-term duration, are
covered disabilities and that is borne out by cases but
certainly by the law as it exists.
Mrs. Foxx. Thank you and I want to say from the very
beginning I believe that all members of Congress, Democrats and
Republicans want to see all workers protected from any harm
that could occur to them and especially pregnant women and I
think our record proves that.
Ms. McLaughlin, H.R. 2694 applies to ``known limitations
related to pregnancy, childbirth or related medical conditions,
workers.'' Your testimony notes that the term known limitations
is not defined in H.R. 2694 in contrast to the detailed
definition of disability in the ADA. If H.R. 2694 is enacted,
will the EEOC, or the courts or both have to define known
limitations? Would there be more certainty for workers and
employers if Congress defined this key term in the bill?
Ms. McLaughlin. It would certainly be more beneficial for
Congress to define known limitations so that moving forward, as
both employers and employees know their rights and obligations
under this law. They know what that term means.
While there is a provision in the bill that talks about
within the two years after enactment, the EEOC should implement
regulations. Two years is a long time to wait and my fear is
that lack of definition would result in litigation just as we
had when the ADA was originally passed about what the
definition of disability was.
Mrs. Foxx. Thank you. Ms. McLaughlin, to qualify for ADA
protections, a worker must be able to perform the essential
functions of the job with a reasonable accommodation. My
understanding is that H.R. 2694 does not include this provision
from the ADA. What is your view about this discrepancy?
Ms. McLaughlin. I think it's one that needs to be seriously
reviewed and from my perspective should be included in any bill
that passes so that if a pregnant worker is accommodated, they
still need to be able to perform the essential functions of
their job and if they can't, some indication as to what the
employer is then permitted to do, would it be, for example, to
put them on leave, which seems to be prohibited by the bill in
its current state in many circumstances so I think the
essentially function concept is critical to have in this bill.
Mrs. Foxx. Thank you very much, I yield back, Madam
Chairman.
Chairwoman Bonamici. Thank you, I now recognize Ms. Hayes
from Connecticut for five minutes for your questions.
Ms. Hayes. Thank you, Madam Chair for holding this hearing
and thank you to all the witnesses who are here today. As I am
listening to all of you talk, especially you, Ms. Durham, I am
reminded of my own experiences. I was a working mom, an
educator who had an uneventful pregnancy. I was not older, or I
did not have any complications and what I thought was a
reasonable accommodation because a tremendous inconvenience. I
was a classroom teacher and all I needed was to go to the
bathroom which I thought was a reasonable request to ask but
you can imagine in a high school with more than 1,000 kids, to
get coverage, I was often told ``well you just had your break''
or ``we only have two more periods before it's time for
lunch.'' And thinking that I have to go right now was just
something that I just dealt with which led to further
complications with bladder issues so what started out as an
uneventful pregnancy ended up having complications as a result
of this minor accommodation not being met. I delivered my son
on the last day of school so all I wanted to do was work but
part of that was not that I was so brave or strong or
altruistic, I was thinking about I need to save my time for the
other side of this pregnancy because I can't afford to be out
of work without pay.
So I absolutely get it. What I don't get is the idea that
pregnancy is some kind of unforeseen limitation for a company.
We have heard that the majority of women work, and that 75
percent of those women will likely become pregnant while in the
workplace.
So I want to get to the point about just the ability to
perform essential job functions and what that means because we
are hearing a lot about workers that need to be treated
equally. I don't think this is an equality issue, this is an
equity issue because last I checked, men can't get pregnant so
the only people who will be affected by this are women who get
pregnant on the job and are asking for something that other
employees will never have a need for.
Ms. Bakst, would you mind responding--I'm sorry, one
second. I always forget to do this. Madame Chair, I have two
documents I need to submit for the record. A document from the
National Women's Law Center and a letter from Senator Elizabeth
Warren in support of Pregnant Workers Fairness Act.
Chairwoman Bonamici. Without objection.
Ms. Hayes. Thank you. Back to you, Ms. Bakst. Would you
mind responding to the concerns around known limitations in
this bill? Because I--in my experience--you've heard just from
the people in this panel, every pregnancy is different so how
do you define the experience of a pregnancy as a known
limitation?
Ms. Bakst. So in most of the states that we have worked in,
it's been rather easy to define and to be able to explain that
this--the pregnancy itself is not a disability but limitations
or medical needs arising from pregnancy could trigger the need
for an accommodation so the law uses the term--so the PWFA uses
no limitations to reflect those scenarios where there is a
physical or medical need for an accommodation and it must be
known to the employer and do you want--the essential functions
question, was that a related--so--
Ms. Hayes. Because I didn't hear going to the bathroom in
that list of essential life functions.
Ms. Bakst. Right, so you make an important point that
pregnancy is only temporary. That is for sure. We know that. So
needing to have some essential functions temporarily excused
for a limited duration is reasonable and in fact there are some
cases in the ADA context that say just that because we would
have a reasonable timeframe which in some instances, and
certainly not all, where a woman would not be able to perform
the essential functions of her job. I mean do you really think
a pregnant worker who can't lift over 40 pounds for a few
months should be sent home and lose her health insurance? Even
though it would be reasonable and not an undue hardship for her
to have help lifting or transfer to another department when
there are open position or when their coworkers often want to
help them? I mean that's what we see all the time.
The coworkers want to work it out and then H.R. gets
involved and points to a piece of paper and says oops, you
can't do the essential functions of your job, you're out. That
doesn't make sense. We need a way to keep pregnant workers
working and on occasion, if they need a transfer or because in
the near future they will be able to perform their essential
functions of their job, that should be workable and again, if
this is all an undue hardship, the employer need not provide
the accommodation but the law would require the employer to
consider the accommodation request, rather than just pushing
the pregnant worker out and then all the devastating economic
consequences that often flow from that.
Ms. Hayes. Thank you. I see my time is about to expire so
I'll yield back. Thank you.
Chairwoman Bonamici. Thank you. I now recognize
Representative Stefanick from New York for five minutes for
your questions.
Ms. Stefanik. Thank you, Chairwoman and thank you to all of
our witnesses who are here today to discuss a really important
issue. Discrimination against pregnant women in the workplace
is an indefensible practice and I am very pleased to see
Congress take such an active role in ensuring that our laws
provide robust protections for pregnant workers.
I was proud to recently introduce the pregnancy
discrimination Amendment Act with my colleagues, Tim Walberg,
Anne Wagner and Jackie Wolorski that would enhance protections
for pregnant women in the workplace.
We all agree that pregnant workers should be protected and
reasonably accommodated in the workplace and as we consider
further changes to the law, it's important to take a step back
to ensure we have a better sense of what has and has not been
working. So Ms. McLaughlin, the ADA includes a comprehensive
definition of disability, does H.R. 2694 need to include more
guidance on what limitations are covered or not covered by the
bill?
Ms. McLaughlin. Again, I think that would be extremely
helpful to understand is no limitation as I am hearing today.
Does it mean any and all limitations always, no matter how
short. If that is the intent of the bill, it would be very
helpful certainly to employers to understand that. But that
phrase, no limitations, at this point is not well defined and I
believe should be.
Ms. Stefanik. And Ms. McLaughlin, the bill also
incorporates the definitions of reasonable accommodation and
undue hardship from the ADA, does H.R. 2694 incorporate any
other terms or concept from the ADA and if this bill is
considered by the committee, should other features of the ADA
be considered for inclusion in the bill?
Ms. McLaughlin. So the bill does reference reasonable
accommodation and undue hardship and says it should be similar
to the ADA. It references using the interactive process and
that's really where it stops, I would say, other than the
damages and schemes are the same.
What it should include, because they are both accommodation
statutes is a better built out definition of no limitations as
well as a reference to a central functions and well as a
reference to the direct threat defense and qualification
standards. That would be a good start to really pattern the
ADA.
It may be different, but those concepts are the same
because they are both accommodation statutes and I would just
end with saying any employers and employees are used to working
with the concepts and definitions under the ADA.
Ms. Stefanik. Thank you, that's very helpful to provide
that feedback and I yield back.
Chairwoman Bonamici. Thank you, representative. I now
recognize Ms. Lee from Nevada for five minutes for your
question.
Ms. Lee. Thank you, Madam Chair. Before I get started, I'd
like to enter into the record a letter from the National
Partnership for Women and Families in support of this bill.
Chairwoman Bonamici. Without objection.
Ms. Lee. This bill is incredibly personal to me. I am the
mother of two children, however I had several unsuccessful
pregnancies and in fact, when I had my son, I spent three
months on bedrest before he was born, and dehydration was the
factor that was cited in pushing me into premature labor. There
were other factors but I sit here today as a witness of staying
off your feet, staying hydrated or avoiding heavy lifting can
be the difference between having a healthy baby or going into
premature labor and possibly having a severely premature baby
which is what I was at risk of and you know, just thinking
about all the costs and complications associated with that or
even having a miscarriage. The bottom line is that women should
never have to make the choice between ignoring a doctor's
orders or keeping a job and sadly it's low income families that
are most vulnerable when these simple protections don't exist.
That's why the Pregnant Workers Fairness Act is so important.
In Nevada, where I come from, over 64 percent of women are
the primary or co-breadwinners and these women are more likely
to work low wage jobs. A woman in Nevada is over 60 percent
more likely to work a low wage job than a man. When a pregnant
woman is forced to leave her job because she didn't receive
reasonable accommodations at work, it's their families that are
forced to live without health insurance or income during a time
when they need it the most as Ms. Durham had explained.
The current legal loopholes have already been highlighted
here today and it's clear that working mothers and businesses
need the clarity to ensure that pregnant women can be
accommodated. These accommodations are simple, like a stool to
sit on, an extra bathroom break, perhaps a larger uniform to
accommodate a growing baby or even carrying a water bottle onto
the floor.
Working women who are pregnant don't have the time or the
resources to take these matters to court and work through this
litigation to receive these accommodations.
Ms. Durham, I am sorry that you had to go through that
process and I personally get frustrated thinking about the life
that you could have had in the job that you trained for, had
these accommodations been made to you so thank you for that
testimony, I appreciate it.
Ms. Wilbur, I just wanted. You described how Kentucky had
passed a version of this bill and it was supported by
businesses who recognized the economic benefits of providing
clarity and uniformity on the issue of reasonable
accommodation. Can you tell us what were the employers' initial
worries about the costs of providing these accommodations?
Ms. Wilbur. Thank you for your question and so this was
sort of a long journey for our metro chamber of commerce and I
always like to kind of set the stage. We have heard about these
issues bubbling up across the country and some folks had
approached our metro chamber to explore this issue and so after
some conversations among our membership of all sizes, of all
different sectors and industries, we learned pretty quickly
that because we had a whole list of questions, that we needed
this type of clarity.
For our membership, when you have a bunch of questions, a
bunch of concerns, a lot of uncertainty, that means dollars in
a bad way and so being able to work on the Kentucky legislation
to provide the framework of when an employer is and is not
obligated to provide accommodations was extremely significant.
Like I said, in my testimony earlier, particularly for small to
midsized businesses that can't afford a robust H.R. department
or a large legal counsel, our people just want to run their
businesses and so being able to work on the Kentucky
legislation with our general assembly to define the undue
hardship was extremely significant because we are talking about
providing a stool. Are we talking about a $4,000? No we are
not. We are talking about providing access to water so having a
water bottle at a station. These are low cost reasonable
accommodations. And guess what? They are temporary. And so when
we were able to message that, not only to law makers but also
the business community. You know, we've got the feedback, we're
sort of already doing this because we want to do the right
thing as a business community but if we can get it so framework
and state statute to clearly define when we are or are not
obligated to do these things, that's a welcomed addition to
Kentucky law.
Ms. Lee. Thank you. You also highlighted the economic
benefits of helping women remain in the workforce and the
benefits of employers when women are able to continue to work
safely. How is ensuring pregnant workers having reasonable
accommodations a tool to increase women's labor participation
and what does that mean for the economic outcomes not just to
both businesses but also their employees?
Ms. Wilbur. So in Kentucky, unfortunately we have one of
the lowest workforce participation rates among women and when
we looked at the population that are currently in the labor
force, we know that over 58 percent of them are of childbearing
age so these are conversations that are happening already and
so we ask ourselves, particularly as a chamber of commerce, if
one of our top priorities and initiatives that we are hearing
from the business community is that talent pipeline, workforce
development and talent attraction. We need to have certainty in
statutes to allow employers to know when they are or are not
obligated to provide these accommodations but also to ensure
that women that are pregnant or new mothers that want to work
are able to work and so we think that this was a reasonable
law, particularly at the federal level to provide the
uniformity and clarity across the board is significant,
particularly for our chamber of commerce or a bi-state chamber
of commerce. We represent 5 counties in southern Indiana so
being able to have that clarity across the board is
significant.
Ms. Lee. Thank you. My time is up. I yield back, thank you.
Chairwoman Bonamici. Thank you. I now recognize
representative Johnson from South Dakota for five minutes for
your questions.
Mr. Johnson. I want to start by thanking everybody,
including some of my colleagues for sharing some of their
stories. I think it's a good learning opportunity for a lot of
us to better understand what issues can be addressed in the
modern workplace. Ms. McLaughlin, there will be times when some
employees will be unable to perform the essential duties of
their job even after reasonable accommodation. Under H.R. 2694,
what are the employers' obligations in that situation?
Ms. McLaughlin. Well you just don't really know because
essential functions is not a term in the bill so it is very
unclear if somebody cannot perform their job even with the
accommodation, what should happen. Is it as situation where
there's a mandate similar to the ADA where the accommodation of
last resort under the ADA is job reassignment and if you're
reassigned to a job that pays less or pay is less or is it that
you do put somebody out on leave or do you have to make work
for that individual? And many employers I work with don't have
make work. That's what we call light duty sometimes, removing
essential functions. We try to assist somebody to perform their
essential functions but sometimes they are just unable to even
with the accommodation. It's just not anywhere in this bill and
needs to be further clarified, including some of those things
that I just talked about, job reassignment, putting somebody on
leave.
Mr. Johnson. So I wanted to feed back to you what I think I
have heard. The ADA has a clear and easier to understand set of
accommodation processes. This bill lacks that, is that right?
Ms. McLaughlin. That's correct.
Mr. Johnson. So, you ran through some options under the
ADA. I just want to make sure that you understand them. So
there could be, of course, reasonable accommodations is sort of
the first tier among things that can be done there would be
reassignment if reasonable accommodation at the current set of
job duties doesn't work is sort of the next option,
reassignment?
Ms. McLaughlin. That's always the accommodation of last
resort under the ADA. The goal is to keep somebody in their
position.
Mr. Johnson. But does leave come after that, then?
Ms. McLaughlin. The way I would tier it is can we
accommodate, if not we try to reassign if there is an open job
and the individual is otherwise qualified for the job and then
if neither of those two work, it would be leave.
Mr. Johnson. There has been some testimony today regarding
the loss of benefits, if somebody was on FMLA. What is the
legal framework there look like?
Ms. McLaughlin. So under the FMLA, you have 12 weeks of job
protection when you go out on leave and there is a requirement
that the individual's health insurance needs to remain in
effect for the 12 weeks that the individual is on leave which
could be a continuous leave or could be an intermittent leave.
Mr. Johnson. Is there any--after that 12 week period, there
is no job protection. Sounds as though there is no particular
benefit protection either?
Ms. McLaughlin. That's correct, not under the FMLA.
Mr. Johnson. There would be a COBRA opportunity, I assume?
Ms. McLaughlin. Yes. So there could be a COBRA triggering
event. Many employers I work with would just continue to have
the individual's health insurance remain in effect as if they
were actively employed but that's not a legal requirement.
Mr. Johnson. I don't want to put words in your mouth, Ms.
McLaughlin but I get the sense that you are concerned about--
you said some of this, but you are concerned about the lack of
definition with some of the terms and the likely higher rates
of litigation that would trigger. Am I saying that right?
Ms. McLaughlin. You are. I think any time in a law that
things are unclear, then people fight about it, right? People
bring claims and we want to avoid that.
Mr. Johnson. Thank you very much. Madam Chair, I yield
back.
Chairwoman Bonamici. Thank you, I now recognize the
Chairman of the full Education Labor committee, Congressman
Scott from Virginia for five minutes for your questions.
Mr. Scott. Thank you, Madam Chair. Ms. Bakst, under present
law, different workers are treated differently. For example, if
one employer makes an accommodation to a similarly situated
worker but the next employer does not provide that same
accommodation, under present law, do the pregnant women have
different rights to the accommodation?
Ms. Bakst. Right now we are in a world where many employers
have clear policies, provide accommodations for workers with
disabilities, workers with on the job injuries and other
scenarios but yet pregnant workers aren't offered, afforded,
those accommodation protections so we are in a world where
pregnant workers are not achieving most favored nation status;
they are achieving least favorite nation status. They are being
left out, unprotected and denied the equal opportunity that the
Pregnancy Discrimination Act intended when the law was enacted
to open doors for pregnant workers and ensure fairness and a
level playing field.
Mr. Scott. Under the Young decision, if you have a
similarly situated employee, then you would get the same
accommodation that employee got, is that right?
Ms. Bakst. Well if you are similarly situated then you
have--it's a multi-step evidentiary burden that a pregnant
worker has to prove, and an employer has his showing and then
the plaintiff has another showing. I mean the point with Young
is that a pregnant worker needs to produce evidence of
intentional discrimination in order to get a basic
accommodation like a stool, a water bottle, an extra bathroom
break to prevent a urinary tract infection. That's outrageous.
Mr. Scott. And how does this work if there are no similar
employees?
Ms. Bakst. Well they lose because not only does it say you
need to provide a comparator but if you, yourself just need,
which is often the case of workers that we hear from at A
Better Balance, they don't have a comparator, they may be new
to the job. For low wage women, they don't have full access to
their company policies often if there are any that they are
willing to share with their workers and so what that means is
that they can't point to a comparator and you know, they just
need their own medically necessary accommodation and they are
running against the clock to get one and they are out of luck.
They often find themselves out of luck.
Mr. Scott. And does the Americans with Disabilities Act
require you to find a similarly situated employee?
Ms. Bakst. No. So the Americans with Disabilities Act
bypasses this arduous journey of proof and simply says you are
entitled to a reasonable accommodation absent undue hardship to
the employer. The law requires a good faith interactive process
to figure out if you can make it work and if you can't, it's an
undue hardship. That is the standard.
Mr. Scott. How long has the Americans with Disabilities Act
been around?
Ms. Bakst. Since 1990 and amended in 2008 with bipartisan
support.
Mr. Scott. And has this been a very complicated process for
people to work with? When you say reasonable accommodation?
Ms. Bakst. Well in all the states that we have worked with
and legislators, everybody says that this is a familiar--this
is familiar, this is going to provide clarity for H.R. because
they know what reasonable accommodations and undue hardships
mean. They are already doing this in the ADA context.
Mr. Scott. If someone is unable to perform the essential
elements of the job, even with an accommodation, what happens?
Ms. Bakst. Well if someone is unable to perform these under
the Pregnancy Discrimination Act--under PWFA or--
Mr. Scott. Under present law.
Ms. Bakst. Under the Americans with Disabilities Act?
Mr. Scott. Right.
Ms. Bakst. If someone is unable to perform the essential
functions of their job, they are not deemed qualified and they
are typically put out on leave.
Mr. Scott. Ms. Wilbur, can you remind us what the value is
of having one Federal Standard? You have a law in Kentucky, a
different law in Ohio. What would be the value of one federal
standard?
Ms. Wilbur. I mean we work in a global economy. Louisville,
where we are based, is very fortunate to have multi state
businesses and corporate headquarters based in our region and
so being able to have that uniformity at the federal level is
significant. Yes, we've made gains in the commonwealth of
Kentucky and GLI is committed to working on similar legislation
in the Hoosier state, right across the river, which we cover 5
counties in southern Indiana. You know, there are 27 versions
that are out there. 27 states that have a version of this and
so employers, the businesses that I represent that have that
multi state presence--federal uniformity and clarity is
significant so we don't have to guess in piece by piece in all
the states.
Mr. Scott. Thank you. Madam Chair, I ask you--a statement
for the record submitted by the March of Dimes in support of
the legislation be introduced.
Chairwoman Bonamici. Without objection.
Mr. Scott. Thank you.
Chairwoman Bonamici. I now recognize the Ranking Member of
the subcommittee, Mr. Comer from Kentucky for five minutes for
your questions.
Mr. Comer. Well thank you and Ms. McLaughlin, I certainly
concur with what Chairwoman Foxx said. We all want pregnant
workers to be treated fairly by their employers and we support
vigorous enforcement of the pregnancy discrimination act and
the Americans with Disabilities Act.
In your experience, do employers have policies to provide
reasonable accommodations to pregnant workers?
Ms. McLaughlin. So many employers that I work with have
extended their reasonable accommodation policy utilized for the
ADA to pregnant workers using the same framework under the ADA
for the pregnancy accommodations.
Mr. Comer. What approach do employers take when a pregnant
worker seeks an accommodation?
Ms. McLaughlin. So really it does mirror the ADA so there
is a request for an accommodation and the interactive process
begins. There is the ability under ADA and I would assume it
should be also under this bill to have medical information with
respect to the condition which wouldn't really be necessary
with pregnancy but more so what accommodation is needed and to
work through whether the accommodation can be put in place
absent undue hardship so it's a dialogue between H.R. and the
individual as well as the healthcare provider.
Mr. Comer. Ms. McLaughlin, in your testimony, you noted
that a careful balance was struck in the ADA between the right
to workers with disabilities and the recognition that employers
cannot remedy every situation that arises. Does the federal
framework proposed by H.R. 2694 strike a similar careful
balance?
Ms. McLaughlin. I mean I think it's very difficult to tell
frankly because in my opinion there are so many terms that are
critical that are missing or not well defined, so I get back to
the known limitations. We can't tell if a balance is struck
like the ADA was struck--a balance was struck between whether
the law covers anything and everything or it doesn't. it's
simply not clear from the law as it's written.
Mr. Comer. What provisions of this proposal should we look
at to ensure there is that balance?
Ms. McLaughlin. I mean I could tick them off here. It would
be known limitations definition, it would be essential
functions, it would be helpful to know if somebody can't
perform their essential functions, even with the accommodation,
does it mirror the ADA with respect to job reassignment and
then leave, the direct threat standard, the qualification
standard, some of those very key terms under the ADA would be
very helpful to be in this bill so that there is clarity for
everyone.
Mr. Comer. Ms. McLaughlin, the EEOC states an enforcement
guidance on pregnancy discrimination that the ADA can apply to
pregnancy related impairments that are temporary, do you agree?
Ms. McLaughlin. Yes.
Mr. Comer. Does the ADA as amended in 2008 apply to
temporary impairments?
Ms. McLaughlin. It absolutely does and in fact there is a
regulation that states that impairments lasting fewer than six
months can be disabilities. The reason that was put in there
very specifically was because there was some other language in
the Act about regarded as disabilities that made it sound like
that was six months and above so this particular regulation to
me makes it very clear that temporary impairments can be
disabilities.
Mr. Comer. Okay. My last question. Ms. McLaughlin, as my
friend Iris Wilbur stated, Kentucky recently enacted the
Pregnant Workers Act to provide explicit protections for
pregnant workers, are you familiar with the Kentucky bill?
Ms. McLaughlin. I am. I have read it.
Mr. Comer. You are? Are there differences between the
Kentucky law and this proposal?
Ms. McLaughlin. There are. The Kentucky law references the
employee's own limitations relating to her pregnancy so it's a
little different but it does provide specific examples as to
what reasonable accommodations should be and I think most
importantly, it fleshes out undue hardship and states that a
duration of the requested accommodation may be a factor to
consider as well as whether similar accommodations have been
made to non-pregnant workers. So it has many more definitions
built out in it.
Mr. Comer. Well I really appreciate the testimony. Madam
Chair, I appreciate the hearing today and I think that a lot of
useful information has been retrieved from this. I look forward
to working to ensure that all pregnant women are protected in
the workforce. With that, I yield back.
Chairwoman Bonamici. Thank you very much, Mr. Ranking
Member. I now recognize--we are moving to the Members who are
here who are not on the committee and I am pleased to recognize
Congresswoman McBath from Georgia for five minutes for your
questions.
Ms. McBath. Thank you so much, Madam Chairwoman and thank
you to all the witnesses that are here today. I myself, having
been a flight attendant for 30 years, before I came to
Congress, I do understand specifics about workplace safety and
I can tell you having worked in that industry, there are no
particular safety measures put in place for flight attendants
that are pregnant.
I myself continued to fly. While I was pregnant--after,
however, three miscarriages and a fetal demise, my doctor took
it upon herself to say ``stay home. You can no longer work.''
And I was then placed on short term disability but there are no
specific guidelines giving to pregnant women, pregnant workers
in the airline industry that I am completely aware of, but
women shouldn't have to choose between a healthy pregnancy and
a paycheck.
And almost 64 percent of American women are the primary,
sole or co-breadwinners in their families but right now women
can essentially be fired for being pregnant. The Pregnant
Workers Fairness Act will ensure that the health of our women
and their babies does not come at the expense of economic
activity or economic security. This issue is especially
pressing for low income women as it was mentioned, many of whom
work on their feet in physically demanding jobs and cannot
afford any lost wages.
27 states have already passed laws that require certain
employers to provide accommodations to pregnant women and it's
time for federal action that guarantees all pregnant women are
protected from discrimination. We all want to support working
mothers. I think that's been established here today. This is a
bipartisan proposal that protects pregnant women by allowing
them simple accommodations. Accommodations that will make our
women safer and their children healthier.
I do have here a letter from leading private sector
employers in support of this legislation and I ask unanimous
consent that this letter be submitted for the record.
Chairwoman Bonamici. Without objection.
Ms. McBath. Thank you. Ms. Wilbur, my question is for you
and thank you so much for your testimony today. I believe that
clarity in the law is good for both employers and for workers.
Providing these protections is not only morally right but it
makes good business sense, so I'd like to talk a little bit
about the business of this Act.
How would federal legislation provide legal certainty and
decreased legal fees for smaller and midsized employers that
may not have legal departments?
Ms. Wilbur. Thank you for your question. Yes, so
employers--companies of all sizes across the board demand
clarity because as you mentioned in your question, when we have
uncertainty in the market and the workplace, that means dollars
for businesses and that's not in a good way. And so being able
to have that clarity and how to handle situations involving
pregnancy, child birth and related medical conditions is
essential.
Many employers, people that run small midsized businesses
want to focus on making investments in their companies. Most
are not experts on dealing with conditions related to pregnancy
so having this guidance where it is treated separately from the
ADA--this legislation is separate from the ADA for that
particular reason is important. That's why states like Kentucky
have stepped up to put within state statute clarity and will
continue and remain committed to working other states to do
that as well but hoping for federal legislation to step in to
provide that clarity across the board for all states but for
us, for GLI, we worked on this issue. We learned that there is
data showing. That at least two states that have implemented
state law have not seen increases in litigation cost or
litigation filings. They've actually seen decreases. Kentucky
just passed the law this Spring and it became official law over
the Summer and has now implemented. Still fairly new but the
sky has not fallen. We haven't seen sort of an overrun of cases
being filed or unreasonable pregnancy accommodations being
requested in Kentucky workplaces so that's why we are confident
and fully support the Pregnant Workers Fairness Act.
Ms. McBath. Thank you and I have one more question for you.
How will the Pregnant Workers Fairness Act help to reduce
litigation?
Ms. Wilbur. So for the very--just as I mentioned, being
able to have that clarity so employers know when they are and
are not obligated to provide reasonable accommodations. The
Federal law helps provide that framework. Employers are very
familiar with ADA as we mentioned and have discussed today and
so being able to lean on the undue hardship clause in
particular is significant for employers because at the end of
the day, these accommodations are temporary so we are talking
about a bottle of water at their work station, at stool to sit
on and so when employers know what that means, those standards,
those reasonable flexible standards, we are confident that this
will reduce litigation.
Ms. McBath. Thank you very much and I am out of time.
Chairwoman Bonamici. Thank you. I now recognize another
Member of the full committee, Ms. Underwood from Illinois for
five minutes for your questions.
Ms. Underwood. Thank you, Madam Chair for calling this
important hearing and thank you to all of our witnesses for
joining us today. It's been 41 years since the Pregnancy
Discrimination Act of 1978 became law. Despite its passage,
women today continue to face discrimination and unfair
treatment at work due to pregnancy.
Women are denied access to reasonable accommodations,
forced to continue working under conditions that threaten their
health or their pregnancy and they can even lose their jobs.
Now I am a nurse, so I feel like it's really critical that we
center today's discussion around the effects that pregnancy
discrimination has on the health of the woman, her family and
her pregnancy.
So Ms. Bakst, what are some of the physical requirements at
work that pregnant women have been subject to?
Ms. Bakst. Some of the physical requirements?
Ms. Underwood. Mm-hmm.
Ms. Bakst. Can you clarify?
Ms. Underwood. Well we certainly have seen some allegations
that people are not being given like stools and--
Ms. Bakst. Like what type of accommodations to pregnant
workers need?
Ms. Underwood. That's right.
Ms. Bakst. So typical accommodations as we've heard,
include, you know, more frequent restroom breaks, some
modification of a work schedule temporarily, light duty, a
water bottle. These are some of the most common workplace
accommodations that pregnant workers need to prevent further
complications down the roads. So those are the most common
types and again, I just want to say that this is an interactive
process. Undue hardship exists if those accommodations are not
available but what we are really talking about are temporary de
minimis accommodations.
Ms. Underwood. And what about the mental health stressors
that pregnancy discrimination can cause a woman and her family.
Can you tell us anything about those?
Ms. Bakst. Absolutely. I mean we have heard from so many
women and I really bring those women here to this forum today
who have suffered profound emotional stress from being forced
off the job and worrying about how they are going to put food
on the table, feed their families, stay afloat and sink into a
poverty hole that they cannot climb out of and then they become
mothers and find an extraordinarily difficult time trying to
get rehired in an already pretty brutal job market and we
wonder--and this is really a key trigger--a really important
factor in the gender wage gap and so ensuring that women, for
their own health, for the health of their pregnancy, can stay
attached to the workforce and earn critical income is
absolutely essential.
Ms. Underwood. So today women make up about half of the
workforce, 71 percent of mothers actually work outside the
home. Women are often crucial in families' economic security,
according to the National Women's Law Center, 42 percent of
working mothers were their families' primary breadwinner. And
so you said that there is certainly an impact on the gender
wage gap. Were there other economic impacts, Ms. Bakst, that
you would like to share with the committee today?
Ms. Bakst. Well, I mean it exacerbates economic inequality
as a whole. I mean these are disproportionately low-income
women. I want to make the point on the FMLA. You talked--Ms.
McLaughlin mentioned that the FMLA protects--provides some
protection. We need to be clear that most of the women that we
are talking about are not covered by the FMLA because the FMLA
mostly covers you know, workers in higher wage positions. 40
percent of workers are not covered by that law and these are
disproportionately low-income women and those are unpaid jobs.
Unpaid regardless and so we--but if you are lucky enough, we
hadn't heard from women who are lucky enough to be covered by
the FMLA but when they are forced out on FMLA leave, they are
often forced out, forced to use up their FMLA leave, whatever
they have, before they give birth and then what?
Then either they're fired because they have no additional
time or they have no time to recover from childbirth and no
time to establish breastfeeding. It's just--it becomes really
impossible to be able to support themselves and their families
without risking their economic security.
Ms. Underwood. Wow. So that sounds like an additional level
of stress that many of these mothers are facing.
Ms. Bakst. Absolutely.
Ms. Underwood. So we know that there are health
complications as a result of these many physical stressors and
mental health stressors, are you familiar with any health
complications if pregnant workers are not provided these
accommodations and have any women that you've worked with
specifically faced those health risks?
Ms. Bakst. Yeah, I mean we have cited a couple of--oral
testimony and I have my written testimony as well really talked
about what kind of research is out there that connects a lack
of accommodation and health complications and a lot of those
situations could simply be avoided and prevented if we
guaranteed an explicit right to accommodations that's currently
available to workers with disabilities and so it is just
essential that we do everything to ensure that for women so
they don't have to suffer those long term health consequences
for themselves.
Ms. Underwood. Well we know that this is a potential public
health crisis if we don't pass this Pregnant Workers Fairness
Act. Madame Chair, I ask unanimous consent to enter a letter
from healthcare providers and public health experts in support
of the Pregnant Workers Fairness Act into the record.
Chairwoman Bonamici. Without objection.
Ms. Underwood. Thank you so much for consideration of this
important bill today. I yield back.
Chairwoman Bonamici. Thank you and I now recognize Mr.
Cohen from Tennessee for five minutes for your questions.
Ms. Cohen. Thank you, Madame Chair. Ms. McLaughlin, you
have expressed concern that the Pregnant Workers Fairness Act
application of the undue hardship provision might limit the
employer's options and in your written testimony you state
``but section 2(4) of the bill suggests that the employer
cannot place the worker on leave if an accommodation exists
that would address the known limitation, even if that
accommodation results in undue hardship.''
Would you agree that if pregnant employees placed on leave
as an accommodation at the employer chooses, that it should be
paid leave?
Ms. McLaughlin. Well, that would depend on the financial
resources of the employer. Some employers can afford paid leave
and others cannot.
Ms. Cohen. Do you believe that a woman who has a job who is
pregnant who is doing the most essential thing on this earth
which is reproduce and keep the human species going. Without
that, none of us would be here. Do you believe that woman
shouldn't get paid leave if the employer under a law or rule
that you support suggested instead of doing an accommodation on
her work, that the accommodation that best suits that employer
is to put them on leave that they should not be paid?
Ms. McLaughlin. Well I guess the way I was interpreting
your original question was should the employer have to pay for
the leave. I would suggest that if Congress feels that those
types of leaves should be paid, and I know there have been
introductions of bills in the past that to me is something that
Congress should mandate, rather than imposing the duty to pay
on the employer.
Ms. Cohen. What if Congress imposes the duty on the
employer? Bottom line is this question. Don't you think the
woman should be paid?
Ms. McLaughlin. I don't really think that my personal
opinion is relevant here--
Ms. Cohen. But your opinion is that the accommodation
provision is wrong because it doesn't allow the employer to put
the person on leave. If they put them on leave and they don't
pay them, that's not an accommodation. That's a penalty.
Ms. McLaughlin. And at the end of the day, the employer
needs to run its business too and also accommodate pregnant
workers or disabled workers and there are circumstances that
leave is going to be unpaid. If the government were to
intervene and mandate paid leave for employers, whether it
would be some sort of subsidy through unemployment, through the
employer having to pay but I really think that's something that
needs to be legislated.
Ms. Cohen. Thank you, Ms. McLaughlin. In 2014, Memphis has
a plant that XPO ran. It was the subject of a major story in
the New York Times concerning work conditions there and
particularly pregnant women which I would like to have entered
into the record.
Chairwoman Bonamici. Without objection.
Ms. Cohen. Thank you. One of the former employees, Ms.
Tasha Morelle brought her doctor's note instructing that she do
no heavy lifting. The supervisor did not accommodate the
doctor's note nor reassign her to a different area. Ms. Morelle
continued doing her assigned work of lifting boxes weighing
almost 50 pounds. As a result, she suffered a miscarriage.
Currently, employers can arbitrarily determine what is an
unnecessary burden to accommodate. Ms. Bakst, what--how would
the undue hardship standard under the Pregnant Workers Fairness
Act come into play in this situation?
Ms. Bakst. Absolutely. So, Tash Morelle is actually A
Better Balance client and she suffered profound health
consequences as a result of being denied an accommodation and
the way it would work would simply be that the employer would
try to see if there was an alternative way to honor her
doctor's notes or her restriction and if it was not reasonable
or it would constitute an undue hardship, then the employer
wouldn't need to accommodate her but what is happening is that
women like Tasha are being forced off the job or forced to risk
their health because employers are not simply engaging in that
good faith interactive process that they are doing for workers
with disabilities and so--and I just want to make the point, if
I may back to that Walberg bill because any idea that bill
would make the situation better is just completely untrue
because once again, the bill requires pregnant workers to point
to other workers to find a comparator but that basically pushes
the comparative framework even in the wrong direction because
it imports new definitions of who an appropriate comparator is
from other statutes and so we have to--we need a clear standard
for pregnant women so they can follow their doctors orders,
remain healthy and on the job. If there is an accommodation,
they can provide it. If it's an undue hardship, they don't have
to, but they should have to jump through hoops and prove
discrimination and wait until their kid is in preschool, maybe
middle school until they find out if they can be accommodated.
It's too late. The economic consequences are too profound, the
health consequences are too profound.
Ms. Cohen. And if I may, and I am a waiver, if the
accommodation was leave, would you agree it should be paid
leave?
Ms. Bakst. Well, we at A Better Balance and my colleagues
and advocates in the community strongly believe in paid family
leave and so I think that every woman in America, every parent,
every caregiver, everyone should have access to paid family and
medical leave, yes.
Ms. Cohen. Thank you and I yield back and appreciate the
committee's indulgence.
Chairwoman Bonamici. Thank you so much. I remind my
colleagues that pursuant to committee practice, materials for
submission for the hearing record must be submitted to the
Committee Clerk within 14 days following the last day of the
hearing, preferable in Microsoft Word format. The materials
submitted must address the subject matter of the hearing. Only
a Member of the committee or invited witness may submit
materials for inclusion in the hearing record. Documents are
limited to 50 pages each. Documents longer than 50 pages will
be incorporated into the record via an internet link that you
must provide to the Committee Clerk within the required
timeframe but please recognize that years from now the link may
not work.
Again, I want to thank the witnesses for their
participation today. What we have heard is very valuable.
Members of the committee may have some additional questions for
you. We ask the witnesses to please respond to those questions
in writing. The hearing record will be held open for 14 days to
receive those responses.
I remind my colleagues that pursuant to committee practice,
witness questions for the hearing record must be submitted to
the Majority Committee Staff or Committee Clerk within seven
days and the questions submitted must address the subject
matter of the hearing.
And we have some closing statements. I recognize the
distinguished Ranking Member for his closing statement.
Mr. Comer. Thank you, Madam Chair and I again want to thank
all the witnesses for being here today. I think it's the goal
of both parties in Congress to ensure that pregnant workers are
protected in the workplace and I know on behalf of the Minority
conference, we are going to do everything in our ability to see
that every pregnant worker is protected in the workplace and
hopefully we can work together as this bill moves forward and
see that objective is achieved. With that, Madam Chair, I yield
back.
Chairwoman Bonamici. Thank you so much. I now recognize
myself for the purpose of making a closing statement. Thank you
again to the witnesses for being here. I want to add that I am
very glad that everyone--every Member of the committee who has
expressed an opinion agrees that pregnant workers should be
protected in the workplace. I think that's a very positive step
and your compelling testimony here today confirms that far too
many pregnant workers are still denied access to reasonable
workplace accommodations despite more than four decades of
Federal law providing for equal treatment on the job and as the
witnesses explained, workplace accommodations can be simple,
inexpensive, not unlike the accommodations already required for
individuals covered under the Americans with Disabilities Act.
Some of the accommodations discussed today included simply
providing seating and water at work sites, allowing additional
break times to use the restroom.
Pregnant workers should not have to choose between a
healthy pregnancy and financial stability. This bipartisan
Pregnant Workers Fairness Act is our opportunity to fulfill the
promise of the Pregnancy Discrimination Act and protect the
health, wellbeing, and economic security of all pregnant and
parenting workers and their families.
By clarifying the right of pregnant workers to fair
treatment in the workplace, this legislation will finally
guarantee pregnant workers the accommodation they need without
fear of facing discrimination or retaliation and without
waiting months or years to find out if an accommodation is
going to be provided.
This bill focuses on prevention and accommodation and that
is a positive step and again, this is not a partisan issue.
Several state legislators across the country, including in the
Ranking Member state of Kentucky and my home state of Oregon
have already passed bipartisan legislation combating
discrimination against pregnant workers and they have found
that the certainty is good not just for the pregnant workers
but also for businesses.
I hope that every committee member here today can agree
that Congress must act now in a bipartisan manner to provide
all pregnant workers access to workplace gender equity, healthy
pregnancies, financial security regardless of where they live.
I look forward to working with my colleagues to pass the
Pregnant Workers Fairness Act and take a long overdue step on
behalf of pregnant workers and their families. And with no
further business, without objection, the committee stands
adjourned.
[Additional submissions by Chairwoman Bonamici follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Ms. Wilbur response to questions submitted for the record
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 12:06 p.m., the subcommittee was adjourned.]
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