Dick Meister: The Plight of the Pregnant Worker

Dina Bakst of the Work and Family Legal Center reminds us of an important fact that few people seem to realize – that getting pregnant can cause a woman to lose her job, despite the laws banning employment discrimination against women and the disabled.

Bakst asked, in a recent New York Times column, that we imagine a woman who, seven months pregnant, was fired from her job as a cashier because she needed a few extra bathroom breaks.

That actually happened. So did the firing of a pregnant worker from her retail job after she gave her supervisors a doctor’s note asking that she not be required to do any heavy lifting or climbing of ladders during the month-and-a-half before she went on maternity leave.

A federal judge ruled in that case that firing the woman was fair because her employers were not legally obligated to accommodate her needs. A peculiar interpretation of the law, no? If that wasn’t illegal discrimination, then what is?

Bakst said that sort of thing happens regularly to pregnant workers. But why? Bakst blames it on a gap between anti-discrimination and disability laws.

It’s true enough that state and federal laws specifically ban discrimination against pregnant workers, and that those laws include the Americans With Disabilities Act. That law requires employers to provide reasonable accommodations to disabled employees, including, those with medical complications stemming from pregnancy.

But there’s a catch – a big catch. Since pregnancy itself is not considered a disability, employers are not required to accommodate most pregnant workers in any way – not in any way whatsoever.

The result, said Bakst, is that “thousands of pregnant women are pushed out of jobs that they are perfectly capable of performing – put on unpaid leave or simply fired – when they request an accommodation to help maintain a healthy pregnancy.”

Many of the women involved are single mothers or a family’s main breadwinner. And a high number of them are low-income women, many in physically demanding jobs.

A couple of New York legislators have come up with bills that would greatly lessen the problems facing pregnant workers in their state, and hopefully set a pattern for enactment of similar laws elsewhere. Lord knows, they’re badly needed.

The proposed New York law would require employers to provide reasonable accommodations for pregnant women whose health care providers say they need them – unless that would be an undue hardship for the employer.

A few states have enacted laws requiring private employers to provide at least some accommodations such as providing a seat for employees who must spend long periods standing, allowing more frequent restroom breaks, limiting heavy lifting, or transferring pregnant employees to less strenuous or less hazardous jobs.

Bakst said those laws “have been used countless times to help pregnant women keep their jobs.”

Bakst, and no doubt others, see such laws as a public health necessity. Which they certainly are. Without such protections, pregnant workers fear asking for the accommodations they need for their own health and that of their unborn children, lest they be fired for asking.

Bakst also pointed out that “women who can work longer into their pregnancies often qualify for longer periods of leave following child birth, which facilitates breastfeeding, bonding with and caring for a new child and a smoother and healthier recovery from childbirth.”

Women who are forced early into unpaid maternity leaves lose pay, of course, and possibly lose chances for promotions that may be available during the period they are off work. It’s even worse for pregnant workers who are simply fired. They not only lose pay, but they also have a tough time finding new jobs in today’s weak economy.

There are some important pluses for employers who provide accommodations for pregnant employees. Less turnover, for instance, and greater worker loyalty and productivity. What’s more, Bakst noted, “With minor job modifications, a woman might be able to work up until the delivery of her child and return to work fairly soon after giving birth.”

That would save her employer the time and cost of finding a replacement. There’s this, too: “Employers could be responsible for much higher medical costs if their workers were afraid to ask for accommodations and instead continued doing work that endangered their pregnancies.”

This is hardly a minor matter. Three-fourths of the women now entering the workforce will become pregnant on the job. None of them – not a one – should have to face the blatant discrimination that’s now commonly faced by pregnant workers.