Legislative Memo: Regarding Pregnancy Accommodation

There are more women in today’s workforce than ever before, and three quarters of them will become pregnant at least once while employed.¹ 

The vast majority of women intend to remain in the workforce after having children; in fact, many continue working into their ninth month of pregnancy, and nearly half return to work fewer than three months after giving birth.²

Most women have no difficulty working during their pregnancies, but sometimes conditions arise as a result of pregnancy or childbirth that make performing some tasks difficult or even dangerous. If the condition meets the definition of a disability, employers are required by law to make reasonable accommodations for the woman in the job or the workplace.³

Unfortunately, workers with temporary pregnancy-related conditions that do not rise to the level of a disability often find no such recourse. In addition, even though current laws prohibit workplace discrimination against pregnant women, workers who are pregnant can be pushed out of their jobs when they are denied modest, temporary accommodations like access to drinking water, more frequent restroom breaks, or a stool to sit on at work.

A.4272/S.008 would amend the New York State Human Rights Law to explicitly require New York employers to provide reasonable accommodations to pregnant workers with temporary conditions that are not defined as disabilities, in the same way that they do for workers who have a disability. The New York Civil Liberties Union strongly supports this measure.

While federal and New York laws require employers to accommodate workers with temporary disabilities,⁴  these laws do not apply to similar conditions if they arise from healthy pregnancy. Likewise, while federal and New York law currently prohibit pregnancy discrimination per se (for example, adverse employment action taken because a woman is pregnant),⁵  some courts have interpreted the law narrowly so that employers are not consistently required to make reasonable accommodations for common pregnancy-related conditions.

This “pregnancy gap” in the laws meant to protect pregnant workers has a tragic result: workers with common, often minor pregnancy-related physical limitations who are denied a reasonable accommodation may be forced to take unpaid leave, resign, or even face dismissal.

Workers advised to take certain health precautions during a healthy pregnancy, and those who work through the eighth or ninth month of pregnancy, often have needs as simple as access to drinking water, more frequent bathroom breaks, or the ability to sit for short periods of time while working.⁶ 

When pregnant employees are denied these simple accommodations, they can be forced to choose between taking unpaid leave and working without accommodations at risk to both maternal and fetal health,⁷ or they may even be pushed out of their jobs or fired.

Low-wage workers, whose jobs are more likely to be physically demanding and lack benefits such as paid leave, and who are more likely to require public assistance if pushed from the workforce, are impacted most by this gap in the law.⁸

A.4272/S.008 makes three important changes to New York State’s Human Rights Law.⁹  First, the bill would explicitly require employers to make reasonable accommodations for employees with “pregnancy-related conditions” in the same manner as for workers with disabilities.

Second, the bill defines a pregnancy-related condition as a medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques; . . . limited to conditions which, upon the provision of reasonable accommodations, do not prevent the [worker] from performing in a reasonable manner the activities involved in the job or occupation sought or held.

Finally, the bill provides employers with two important assurances: it would (1) require employees to cooperate with employer requests for “medical or other information that is necessary to verify the existence of the disability or pregnancy-related condition, or that is necessary for consideration of the accommodation,” and (2) in no case require an employer to take any action that would impose an undue hardship on his or her business.

As demonstrated daily in workplaces throughout New York and beyond, the reasonable accommodation model works, for businesses and employees alike. Twelve states and five cities, including the state of New Jersey and New York City, have enacted laws requiring reasonable accommodations for pregnant workers under various circumstances – primarily within the last two years.¹⁰

Ensuring that women can remain in the workforce during pregnancy has demonstrable benefits — including increases in worker productivity and retention, as well as projected public savings stemming from the reduced reliance of displaced workers on public assistance and unemployment insurance.¹¹ 

In addition, accommodating pregnancy-related conditions is typically low-cost and low-effort, since pregnancy is temporary and requested accommodations are relatively minor.¹²

Requiring fair and reasonable accommodations for pregnancy-related conditions preserves the array of economic and personal options that allow women to retain a robust and meaningful role in the workplace.

Legislation clarifying the requirement of reasonable workplace accommodations for pregnant workers is good for business, good for families, and good for our economy. The NYCLU strongly supports this legislation and urges lawmakers to pass S.008/A.4272.

1 Michelle R. Hebl, et al., Hostile and Benevolent Reactions Toward Pregnant Women: Complementary Interpersonal Punishments and Rewards That Maintain Traditional Roles, 92 J. App. Psych. 1499 (2007).

2 See Tallesse D. Johnson, Maternity Leave and Employment Patterns of First-Time Mothers, U.S. Census Bureau (2008).

3 While a recent U.S. Supreme Court decision found that employers’ polices are discriminatory where they accommodate non-pregnant workers and do not accommodate pregnant workers, state legislation is still necessary to clarify employers’ obligations and to ensure reasonable accommodations for pregnancy-related conditions. Young v. United Parcel Service, 575 U. S. ___ (2015) (holding that employers cannot impose a “significant burden” on pregnant workers and a pregnant worker may show an employer’s practices are unjustified if the employer makes accommodations for a large percentage of non-pregnant workers, while denying the same kinds of accommodations to pregnant workers).

4 42 U.S.C. §§ 12101 et seq.; 29 C.F.R. § 1630.9; N.Y. Exec Law §§ 292, 296.

5 42 U.S.C. §§ 2000(e) et seq.; N.Y. Exec Law § 296(g).

6 National Women’s Law Center, The Business Case for Accommodating Pregnant Workers (Dec. 2012), available at http://www.nwlc.org/sites/default/files/pdfs/pregnant_workers_business_c….

7 Mayo Clinic Staff, Working During Pregnancy: Do’s and Don’ts, available at http://www.mayoclinic.com/health/pregnancy/WL00035; see also Joanna L. Grossman, Pregnancy, Work, and the Promise of Equal Citizenship, 98 Georgetown L. J. 582 (2010).

8 Joan C. Williams & Penelope Huang, Improving Work-Life Fit in Hourly Jobs: An Underutilized Cost-Cutting Strategy in a Globalized World, Center for Worklife Law (2011), at 16. In addition, 33% of pregnancy discrimination claims filed between 1996 and 2005 were from workers in the service industry. See National Partnership for Women & Families (“NPWF”), The Pregnancy Discrimination Act: Where We Stand 30 Years Later (2008), at 7 (citing Pregnancy Discrimination Charge Data FY 1996 – FY 2005, U.S. E.E.O.C.).

9 N.Y.S. Human Rights Law, codified at N.Y. Exec. Law §§ 290-301.

10 NPWF, Reasonable Accommodations for Pregnant Workers: State Laws (Dec. 2014), available at http://www.nationalpartnership.org/research-library/workplace-fairness/p….

11 See National Women’s Law Center, The Business Case for Accommodating Pregnant Workers, note 6 supra.

12 Id.