[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.] [all]