[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]