Over the last few decades, women have moved into the workforce in ever-increasing numbers. This has created tension in calcified institutions that have shown little interest in changing to make their environments more accommodating to women who are simply trying to work and earn a living.
One of the biggest sore spots in the American labor market is pregnancy discrimination. Supposedly addressed in 1978 by the Pregnancy Discrimination Act, discrimination against pregnant women – both explicit and implicit – remains a serious issue in 2018.
With the Republican Party still in control of most of the levers of power in Washington DC, federal action on this important issue is unlikely. But many states – including those run by Republicans – are moving to fill the gap, a dynamic that could continue after a midterm election that saw women sweep into executive and legislative positions across the country.
- Holes in Federal Protections
The Pregnancy Discrimination Act contains some important protections for pregnant women who are either applying for jobs or are already working:
- Potential employers cannot discriminate against pregnant applicants
- Employers must provide reasonable accommodations for pregnant women in the workforce
- A pregnant woman who is temporarily unable to perform her job duties must be treated as any other employee suffering from a temporary disability
However, the law has built-in weaknesses that affect its ability to effectively protect pregnant women. For one, it only applies to employers with more than 15 employees. And its accommodation requirements leave much to be desired – for example, employers don’t have to provide women with a private space where they can pump breast milk.
Every year, the federal government receives tens of thousands of complaints alleging pregnancy discrimination in the work place, and that doesn’t even include instances where women don’t report discrimination. Regardless of the Pregnancy Discrimination Act, women in the real world still have to navigate a professional terrain that is too often hostile to their needs.
- The States Step Up
Since Republicans seized control of the House of Representatives in 2010, new legislative regulations have not been on the Congressional agenda. While some state-level Republicans are sympathetic to pregnancy discrimination laws – as we’ll see below – the national GOP has made opposing any new federal regulations a key part of their governing philosophy.
As a result, multiple states have stepped into the breach in recent years to enhance protections for pregnant employees. 18 states have enacted their own pregnancy discrimination laws in the last five years. In states as diverse as Colorado, Hawaii, Illinois, New Jersey and North Dakota, those laws ensure pregnant workers have additional workplace protections. In Colorado, for example, the law requires employers provide pregnant employees with accommodations such as lighter duty, longer breaks and modified work schedules.
These laws have the potential to prove bi-partisan. The most recent pregnancy discrimination law was passed in ruby red South Carolina, where a coalition of Democratic feminists and pro-life Republican lawmakers joined to push through a law requiring reasonable accommodations for pregnant employees.
- Will More Women in Legislatures Mean More Pregnancy Discrimination Laws?
Though most of the focus in the recent midterms was on Congress, fierce battles were fought over state legislative seats. Those elections resulted in women making up 28 percent of the nation’s legislators, up from 25% just a year before.
Democrats achieved a net gain of six “trifectas – “the term political wonks use to refer to a situation where one party has control of a state’s governorship and legislature. Democrats will now have sole control of the government in 14 states. Democrat-controlled states without pregnancy discrimination laws might represent tempting targets for advocates.
At the federal level, 116 women – the vast majority Democrats – were elected to Congress in 2018. With Republicans still controlling the Senate and Presidency, a federal law providing greater protections for pregnant workers is unlikely. However, a Democratic House is likely to look more kindly on a bill such as New York Congressman Jerrold Nadler’s Pregnant Workers Fairness Act, which the New York Democrat has introduced every year since 2012 without even receiving a hearing.
Passing Nadler’s bill – or something like it – might represent an appealing messaging opportunity for House Democrats, even if it’s dead on arrival in the Senate.