Once upon a time, when a working woman became pregnant, she’d typically be expected to leave her job and retreat into full-time domestic duties. These days, white-collar career women sport proud baby bumps under power suits, and across the workforce, women now regularly serve as the main breadwinners, and must work before, during, and after pregnancy. Yet many workplaces are still stuck in a Victorian mindset about what pregnant women can and can’t do on the job. Now a new law in Illinois is set to modernize the way bosses deal with pregnant employees.
The so-called Pregnancy Fairness law, which Governor Pat Quinn signed into law yesterday, establishes distinct civil rights protections for pregnant workers who require a modest adjustment to their duties to do their jobs. The employer still has the right to refuse but only if it could prove that the accommodation “would impose an undue hardship” on the business.
Most working women will keep working during their pregnancy, often into the third trimester. Yet labor law has lagged in accommodating pregnancy at work. Since 1978, pregnant workers have had limited protection against discrimination by their boss under the Pregnancy Discrimination Act. But countless women have been denied the reasonable accommodations they have requested in order to keep working, like being allowed to sit on a stool at the register. Sometimes they are unnecessarily forced off the job.
Today, pregnancy discrimination protection, along with paid sick leave, equal pay, and flexible scheduling, ties into a suite of policy demands that labor feminists are pushing to bring gender justice to work.
Recently, the federal Equal Employment Opportunity Commission issued new guidelines on pregnant workers’ entitlement to light duty, and a recent expansion of the Americans with Disabilities Act clarifies the employer’s obligation to accommodate health conditions related to pregnancy. Building on that framework, Illinois has placed pregnancy discrimination under the jurisdiction of the state’s Human Rights Commission, following similar legislation in fifteen other states and cities. Parallel federal legislation has been introduced in Congress with the Pregnant Workers Fairness Act.
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Melissa Josephs of the Chicago-based organization Women Employed, tells The Nation that the existing federal restrictions against pregnancy discrimination gave the employer “no affirmative duty to do anything” to accommodate the worker. Now, there’s a wider range of guaranteed options. In some cases, the law might be applied to grant the worker time off from work, she says, “but I think more often it might just be being allowed to drink water or carry a water bottle on the job, or to sit or to lift less.” As women are now increasingly active during pregnancy, “This law was needed, we felt, because people didn’t want to take the time off, they just wanted an accommodation.”
Respecting a woman’s pregnancy at work is also a social and racial equity issue. According to the National Women’s Law Center, low-wage women workers, many of them primary income-earners, often have more physically demanding duties, such as lifting boxes or prolonged standing. Pregnancy-related discrimination complaints have been concentrated in the highly gendered service sectors, like retail sales and hospitality. Many physically strenuous jobs like domestic work and home healthcare services are disproportionately done by immigrant and black women.
A female executive of the Lean In class probably wouldn’t be reprimanded for wanting to lean back a bit with a foot rest at board meetings. But women workers at Walmart had to wage a national campaign for months before the company changed its policies to ensure reasonable pregnancy accommodations (and many say the policy remains only spottily enforced).
The discriminatory treatment of pregnant women can be economically damaging or just downright humiliating. In a report by NWLC, Guadalupe Hernandez described the indignity she faced as a fast food line worker in Washington, DC, when her boss yelled at her for using the bathroom frequently during her pregnancy, and demanded that she “get his permission whenever I wanted to use the bathroom and also tell all my coworkers.” Meanwhile, “All of my coworkers were allowed to go to the bathroom as often as they wanted without ever asking for permission. I never had to ask permission to go to the bathroom before I got pregnant either, so I felt that I was being singled out and punished just because I was pregnant.”
Postal worker Diana Teigland recalled in the report that she had to choose between working outdoors in the summer heat and losing a day’s work: “For each hot day I wasn’t able to work inside I had to take a day off—using up one of my allotted paid sick days or annual leave days. This was the leave I had planned to use for my recovery after childbirth, since my employer didn’t offer any paid maternity leave.”
Legislation like the Illinois law updates anti-discrimination statutes by making flexibility, not just non-discrimination, the crux of a pregnant woman’s workplace rights. Respecting her right to work, as long as she is willing and able, is an evolution from the paternalistic attitude of assuming that pregnancy automatically incapacitates women.
The Supreme Court will soon weigh pregnancy labor rights in the case Young vs. UPS, involving a UPS worker whose boss refused to allow her light duty at work due to pregnancy. Women’s rights groups argued in an amicus brief that a lower court ruling that effectively denied Peggy Young light duty entitlement was inherently discriminatory in that it “devalues pregnant workers’ contributions to paid employment, while elevating women’s maternal roles in reproduction and caretaking.”
Josephs says reasonable accommodation should be on par with making small changes to a workers’ duties when they are recovering from a broken arm. Companies should, from a business standpoint, welcome an employee’s willingness to continue working, with some minor modifications that may cost the workplace virtually nothing. “I think sometimes, employers may feel, ‘Oh, she doesn’t really want to work, or she just wants to have the baby and then stay at home,’” Josephs says, but overall, “there are a lot of employees who really want to keep working… because they need the money to pay the bills.”
Now that pregnancy has spawned an industry of lifestyle accoutrements and fitness programs, there’s no reason why working women who wear overalls instead of pumps to work should have to give up their livelihoods just because they’re expecting. In the struggle for a more humane workplace, pregnancy fairness is a modernization well past its due date.
