The state of anti-discrimination laws for pregnant workers in America

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• John Yang:

  Los Angeles Sparks forward Dearica Hamby isn't on the court for the WNBA playoffs now underway, but she's in court with a workplace discrimination and retaliation suit. Hamby claims that after she announced in 2022 that she was pregnant, her team at the time, the Las Vegas Aces, took away benefits like team provided housing and then traded her.

  Aces head coach Becky Hammond, has denied the allegations, and both the team and the WNBA are asking a federal judge to dismiss the case. Her suit highlights the issue of how pregnant people are treated in the workplace. Federal protections for pregnant workers have been the law since 1978, but a 2022 survey found one in five mothers reported experiencing pregnancy discrimination at work.

  Gillian Thomas is the senior staff attorney for the ACLU's Women's Rights Project. Gillian, how illustrative are these allegations that Dearica Hamby is making? How illustrative are they about workplace discrimination against pregnant people?

• Gillian Thomas, Senior Staff Attorney, ACLU Women's Rights Project:

  Unfortunately, they're extremely common. The allegations that she makes about insinuations that she isn't going to be as committed to the team or that she may have one child already, and now that she's going to be having a second one, that's really going to push her over the edge in terms of having her mind elsewhere, not really having her mind on the game, assumptions that she physically is not going to be capable of performing at the high level that she had up until that time, all of those stereotypes are, unfortunately, very alive and well in the workplace today.

• John Yang:

  I know there have been some recent developments on this front. What is the current state of anti-discrimination law regarding pregnant workers?

• Gillian Thomas:

  Well, as you noted in your introduction, it has been illegal to discriminate against pregnant workers and workers affected by pregnancy since 1978. That means that it's illegal to deny someone a job or fire them or deny them a promotion or pay them less or harass them.

  But there also is a prohibition that's been in place for 45 years on treating pregnant workers worse when it comes to workplace benefits. So, for instance, if an employer has a policy of paying some income replacement when you're out on disability for a period of time, an employer can't pay that benefit to people who are out because of cancer or a bad back or some other health related issue and exclude pregnancy.

  We advocates are very excited about some new protections that just went into effect last year under a law called the Pregnant Workers Fairness Act.

• John Yang:

  And what are some of those changes? And were they sort of plugging gaps in the old law?

• Gillian Thomas:

  That's a great way to put it. The Pregnancy Discrimination Act that I was just describing and the prohibition on excluding pregnant workers from benefits given to other people. One such benefit is the right to accommodation, meaning some sort of temporary modification in how the job is done, whether that means being able to sit down a little more often or take some more breaks, maybe adjust your schedule because you have terrible morning sickness or take some time off to go to just regular prenatal visits.

  The Pregnancy Discrimination Act was imperfect and incomplete in its protections. Only if a pregnant worker could point to somebody else in the workplace who had been given that benefit were they going to be entitled to the same benefit.

  And so what the new law does is say if it would be a reasonable accommodation that doesn't impose an undue hardship on the employer, then the employer has to provide the accommodation full stop.

• John Yang:

  Are there types of workers or types of jobs in which workers are more likely to face these things than others?

• Gillian Thomas:

  Absolutely. And there's really a plethora of low wage work that is extremely physically demanding and is also disproportionately held by women, and especially black and brown women. So think of retail workers. You go to your local Walmart or Costco, and you see workers who are on their feet for eight and 10-hour shifts. Same thing for cashiers, also healthcare workers, and then also in male dominated professions that may be exceptionally physically demanding or even dangerous. So think of law enforcement or firefighters or construction workers.

• John Yang:

  And even with this new law, are there still areas you think can be improved in the law? Any gaps that still remain?

• Gillian Thomas:

  There's always room for improvement. I think we're going to see how the PWFA plays out. It only is in its has just passed its first anniversary as a law, and then this year, the EEOC, the Equal Employment Opportunity Commission, put out regulations implementing the statute.

  So, I will say that there have certainly been a — there's been a learning curve among employers, just that this new law even exists. Something that we've heard in the first year that the PWFA has been in effect is that employers are imposing really onerous paperwork requirements, meaning that they're demanding really onerous certifications from medical providers about the need for accommodation, even when it's really a pretty simple change.

• John Yang:

  What advice do you have for someone who thinks they are subject to discrimination because of their pregnancy?

• Gillian Thomas:

  Well, I mean, if it's the accommodation issue, a big thing to do is to inform the employer about this new law. There are a lot of resources available from the EEOC, the federal agency that enforces the statute, a lot of very user friendly, plain English kinds of resources.

  So having a conversation with the employer just to gently alert them to this new statute, and also the fact that the law imposed a requirement that there be a conversation between employer and worker. And I would urge folks to consult with HR and discover what kinds of processes there are to lodge complaints. But that, unfortunately, also may be the time that it's necessary to approach either the EEOC or a local, state or local agency to find out about options.

  You don't have to have an attorney to file a charge of discrimination with one of those entities, though, that is, you know, a scary prospect understandably for workers. And they need to understand they're protected from retaliation if they do choose to alert their employer that they believe the law is being violated.

• John Yang:

  Gillian Thomas of the ACLU, thank you very much.

• Gillian Thomas:

  Thank you for having me.

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