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Pregnant and Jobless: Pregnant Women Still Choose Between Paycheck and a Healthy Pregnancy

The Huffington Post The Huffington Post 30/10/2015 Dina Bakst
WORKING LATINA MOM © Paul Bradbury via Getty Images WORKING LATINA MOM

Last year, Betzaida Cruz Cardona, a cashier for a large retain chain in Rochester, New York, was told to "stay home and take care of her pregnancy" after she brought in a doctor's note with a 25 pound lifting restriction. Even though she rarely lifted anything heavier than 25 pounds as a cashier, Betzaida was fired when she was four months pregnant. The results were devastating: she wound up homeless and had to rely on family and friends for shelter.

Recently, New York Governor Andrew Cuomo stood up for thousands of New York women like Betzaida by signing into law a bill guaranteeing reasonable accommodations for pregnant workers. While a critical step forward, freedom from pregnancy discrimination shouldn't depend on location, or luck. On the 37th anniversary of the Pregnancy Discrimination Act (PDA), no woman should have to go through what Cardona did, and be forced to choose between her job and a healthy pregnancy, when reasonable accommodations are available.

Earlier this week, A Better Balance released its new report: Pregnant and Jobless: 37 Years After Pregnancy Discrimination Act, Pregnant Women Still Choose Between A Paycheck and A Healthy Pregnancy, which argues that the only way to ensure equal opportunity for all pregnant workers is for Congress to pass the Pregnant Workers Fairness Act (PWFA). That's because even after the Supreme Court weighed in last March, the rights of pregnant workers remain unclear, forcing too many women to jump through legal hoops to get basic accommodations to stay healthy and on the job.

Under the Supreme Court's new standard in Young v. UPS, a pregnant worker denied accommodations must go through a multi-step evidentiary process to prove discrimination. She can likely do that by showing that a large percentage of non-pregnant workers are accommodated under a policy or practice, while only a small percentage of pregnant workers are afforded accommodations (assuming the employer's justification is not "sufficiently strong" to justify the burden on pregnant workers).

For women like Peggy Young whose employer has transparent policies, it may be possible to prove discrimination -- even if it takes months or years. But as we see up close at A Better Balance, too many women working in low wage jobs are often unfamiliar with company policies (if there are any) and simply do not have the luxury of time and resources to prove discrimination. For example, one pregnant retail worker fainted and collapsed on the retail floor because her employer refused to allow her to drink water on the job. Why should any woman have to prove discrimination, and risk her health while amassing the evidence, in order to get such a basic accommodation?

By comparison, workers covered by the Americans with Disabilities Act (ADA), and those who seek religious accommodations under Title VII of the Civil Rights Act, have affirmative statutory rights to reasonable accommodations. No evidence of discrimination required. The accommodation must only be reasonable and not impose an "undue burden" on the employer.

When President George H.W. Bush signed the ADA in 1990, he described the law as representing "the full flowering of our democratic principles." Seventeen years later, Congressman Jim Sensenbrenner (R-WI), who co-sponsored the Americans with Disabilities Amendments Act (ADAA), reiterated the ADA's purpose "to break down the physical and societal barriers that kept disabled Americans from fully participating in the American Dream." He also noted that, thanks to the law, "citizens with disabilities have experienced increased opportunities, higher graduation rates, higher employment rates and lower rates of poverty."

Undoubtedly, the same holds true for pregnant workers. As we've seen time and time again with our clients in New York City and nationwide, a clear accommodation law can help pregnant women stay on the job, ensuring financial stability for their families. A clear right to accommodation also ensures better health outcomes for women and infants, as well as reduced healthcare costs, supporting our economy. The March of Dimes New York Chapter estimates that encouraging healthy pregnancies could save the state $1 billion annually in health care costs and the Center for Disease Control has found that premature birth costs the U.S. healthcare system more than $26 billion a year.

Finally, most pregnancy accommodations are likely to be low or no cost. In fact, the Job Accommodation Network found that a majority of employers reported no new costs as a result of providing accommodations to employees with disabilities. And employers accommodating pregnant workers report bottom-line benefits of reduced turnover, increased productivity, and reduced litigation costs because employers' obligations and employees' rights are crystal clear. That's why since 2013, 10 states and five localities have enacted legislation explicitly to guarantee reasonable accommodations for pregnant workers, all of them with virtually unanimous bipartisan support.

Although the Supreme Court's decision was an important victory for Peggy Young, it still requires millions of pregnant workers to jump through hoops to prove they should receive an accommodation. This was certainly not what Congress envisioned 37 years ago when it sought to address obstacles to women's full participation in the workplace.

The only way to remove these hurdles is for Congress to build on the bipartisan momentum in the states and pass the PWFA. The PWFA would afford pregnant workers with limitations arising from pregnancy, childbirth or related medical conditions the same clear and familiar right to accommodations as workers with disabilities. They, too, deserve to participate fully in the American Dream.

--Bakst is Co-Founder and Co-President of A Better Balance, a national legal advocacy organization dedicated to promoting fairness in the workplace and helping workers care for their families without risking their economic security.

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