Pregnancy Discrimination, Immigrant Women and Low-Wage Work
THIS ARTICLE FIRST APPEARED IN HUFFINGTON POST
Natasha Lycia Ora Bannan, Associate Counsel
Joanna Cuevas Ingram of Latino Justice PRLDEF
Last month's celebration of the accomplishments of women in the country, while always welcomed, cannot hide the decades-long battle for workplace justice and fairness the women must wage even today. Indeed, by the end of Women's History Month this year, gender-based discrimination at work moved from the margins to the center of national debate, whether it was against a UPS driver who became pregnant in Maryland or a technology executive in Silicon Valley denied a promotion due to a sexist corporate culture that some justified because it was not overt. The struggle is far from over, and for some low-wage workers who often remain the invisible face of discrimination, it is constant.
For example, an almost 40-year statute prohibiting discrimination against pregnant women in the workplace (the Pregnancy Discrimination Act of 1978, or "PDA") got a new interpretation by the Supreme Court last week when they articulated a new test to determine how a woman must prove she has been discriminated against because she is pregnant. Peggy Young, the plaintiff in the case, was a UPS driver who became pregnant and received medical advice to refrain from lifting heavy packages during her pregnancy; she was refused light duty accommodations that were granted to other workers who had requested similar accommodations due to medical conditions or a disability.
In Young v. United Parcel Service, Justice Breyer delivered the 6-3 opinion for the Court which affirmed that "the Pregnancy Discrimination Act makes clear that Title VII's prohibition against sex discrimination applies to discrimination based on pregnancy," yet applied a test routinely used in employment discrimination cases which requires pregnant women to show that they not only requested reasonable accommodations, but also that similar accommodations are granted for persons with other medical conditions or disabilities. At the same time, the Court clarified that this showing, by itself, may establish an initial legal finding of gender discrimination, and may ultimately be sufficient to counter any proffered "neutral" reason given by the employer for such a policy.
The decision in Young will likely have a sustaining impact, especially on low-wage workers who often have the least amount of job protections and may feel intimidated or dissuaded from exercising their rights, a combination that makes them particularly vulnerable to discrimination. Women in the United States are overwhelmingly working women: over 62 percent of women in the U.S. who gave birth in a one-year period also worked during that time. The U.S. Bureau of Labor Statistics estimates that over 10.3 million Latinas over age 20 are in the U.S. workforce, yet Latinas remain more likely than any other group of women to work in lower paying service occupations. Nearly 16 percent of all working Latinas work at or below the national poverty line, the highest percentage among any ethnic group of women.
A recent report by the National Women's Law Center noted that women in low-wage occupations -- which tend to be physically demanding, hazardous or inflexible -- work as retail sales workers, food service workers, agricultural workers, health care workers, inventory and package handlers, cashiers, housekeeping cleaners, grounds service workers, office clerks and truck drivers. These jobs often require frequent standing, walking and/or running, and the ability to lift, push, pull or carry heavy objects, or even some exposure to toxic substances. These are also jobs where the Equal Employment Opportunity Commission found that pregnancy discrimination is more rampant than in any other sector or industry, and that are predominately held by immigrant women and women of color. The inflexibility of schedules and working environments in lower paying service jobs often require physically demanding tasks and play a large role in some employers' refusal to make accommodations for pregnant workers, and such refusals weigh most heavily on immigrant women and women of color.
The challenge for low-wage pregnant workers under the new test in Young will be to prove that seemingly neutral policies disproportionately burden pregnant workers by showing that other employees have been granted similar accommodations for different conditions or disabilities. In small businesses, for example, there may not be a control group of disabled employees to compare or contrast a pregnant worker's experience with or a worker may not know or have access to information about other workers' requests for accommodations.
Given these concerns, women's rights and civil rights groups are pushing for further local, state and national reforms beyond the scope of the Young decision. California, Connecticut, Delaware, Hawaii and New Jersey lead the way with stronger protections for pregnant workers than most other states, including states that have passed laws requiring some employers to provide reasonable accommodation for pregnant workers, such as New York City's Pregnant Workers Fairness Act.
The most progressive of these state policies requires employers to "make every reasonable accommodation" when requested, regardless of hours worked, employer size or the employee's tenure with the company, which requires more from the employer than the PDA post-Young. UPS voluntarily changed its policy in October 2014 to provide the same accommodations to pregnant workers as those it provides to workers who suffer on-the-job injuries, noting that it was "a good thing for our employees," which, although true, doesn't mean that they feel they are required to provide such accommodations by law. Local and state laws requiring such accommodations are needed to make clear what an employer's responsibilities are with regard to pregnant workers.
In the struggle for equal rights at work, much remains to be done. Advocates recognize that despite existing federal and state protections, pregnant workers in this country still face discrimination when denied reasonable accommodations that would otherwise enable them to continue working and support their families. As advocates continue to push for further legal reforms, state agencies need to adopt stronger regulations that expand upon the protections already guaranteed by federal law. Pregnant workers should no longer be denied reasonable requests for accommodations in order to be able to do their job, nor should they be subject to discrimination or retaliation based on their gender or status. Employers, particularly those who employ low-wage workers, should adopt fair accommodation policies for pregnant workers that are clear, consistent and don't unfairly burden women, not only to avoid liability, but for the most basic reason of all: respect for pregnant workers' rights.