By Jessica Mason and Katherine Gallagher Robbins
Thanks to the Pregnancy Discrimination Act (PDA) – enacted forty-four years ago this month – discrimination on the basis of pregnancy, childbirth or related medical conditions is against the law. But current law does not always guarantee pregnant workers a right to reasonable, temporary accommodations they may need to protect their health. Courts have failed to require employers to grant accommodations to pregnant workers without proof that the employer provided accommodations to nonpregnant workers – while failing to provide them to pregnant workers. And even when pregnant people have managed to prove that their colleagues are getting accommodations, such as those with workplace-related injuries, current law still does not guarantee pregnant workers can get the same accommodations. Without basic accommodations, such as carrying a water bottle or being able to sit instead of stand, pregnant workers may not be able to withstand working conditions and can be forced out of a job – losing income and even job-related benefits such as health insurance at a time when they and their families need it most.
This fall, the Senate has an opportunity to pass the Pregnant Workers Fairness Act (PWFA)Learn more about the Pregnant Workers Fairness Act. – already approved by the House with strong, bipartisan support – to ensure that pregnant workers nationwide are finally protected. Nearly 2.8 million pregnant women each year – 70 percent of all pregnant women – were employed during the year of their pregnancy and could stand to benefit from the PWFA’s protections. While not all pregnant workers need accommodations in the workplace, all pregnant workers benefit from having protections they know will keep them healthy and on the job.
Any pregnant person may experience pregnancy discrimination. But because of the ways that racism, sexism and ableism have structured the United States economy, pregnant workers’ need for accommodations – and the harms they may face if unable to access accommodations – can differ significantly. Women and people of color are especially likely to be in jobs that are higher risk and lack adequate health and safety protections.National Partnership for Women & Families. (2022, June). Improving Maternal Health with the Pregnant Workers Fairness Act. Retrieved 12 October 2022, from: https://nationalpartnership.org/report/improving-maternal-health-pwfa/ Inequitable health risks from paid employment are one driver of the maternal and infant health crises that particularly harm people of color, especially Black and Indigenous communities.National Partnership for Women & Families. (2021). Saving the Lives of Moms & Babies. Retrieved 12 October 2022, from: https://nationalpartnership.org/report/moms-and-babies/; Petersen, E. E., Davis, N. L., Goodman, D., Cox, S., et al. (2019, September 6). Racial/Ethnic Disparities in Pregnancy-Related Deaths — United States, 2007–2016. Morbidity and Mortality Weekly Report. 68(35), p. 762-765. DOI: 10.15585/mmwr.mm6835a3 Having a low income, experiencing employment discrimination and/or facing racial and gender wage and wealth gaps mean that pregnant people of color, pregnant people with disabilities and pregnant trans and nonbinary people more often have few resources to fall back on if pushed out of a job.Mason, J., & Molina Acosta, P. (2021, March). Called to Care: A Racially Just Recovery Demands Paid Family and Medical Leave. Retrieved 12 October 2022, from: https://nationalpartnership.org/report/called-to-care-a-racially-just-demands-paid-family-and-medical-leave/; Movement Advancement Project, National Center for Transgender Equality, Human Rights Campaign, and Center for American Progress. (2013, September). A Broken Bargain for Transgender Workers. Retrieved 12 October 2022, from: https://www.lgbtmap.org/transgender-workers
The majority of pregnant women were employed in the year they were pregnant, including:
- Nearly three-quarters of pregnant Black women – the highest of any major racial/ethnic group;
- Nearly two-thirds of pregnant Asian American, Native Hawaiian and Pacific Islander (AANHPI) women,
- Six in ten pregnant Latina women,
- Just under six in ten pregnant American Indian and Alaska Native (AI/AN) women,
- More than half of pregnant women with a disability,People are identified as having a disability in this analysis if they responded that they have difficulty in one or more of the following realms: vision, hearing, cognitive, ambulatory, self care, and independent living. This is a limited definition of disability that excludes a portion of disabled people. For more information on how disability is measured in the American Community Survey please see U.S. Census Bureau, (2021, November 2). How Disability Data are Collected from The American Community Survey. Retrieved 29 June 2022 from U.S. Census Bureau website: https://www.census.gov/topics/health/disability/guidance/data-collection-acs.html. and
- More than half of those who are economically insecure.While people across the income spectrum may have difficulty making ends meet, in this analysis we define “economically insecure” as living in a family below 200 percent of the federal poverty line.
More than One Million Pregnant Workers Live in States with No Statewide Pregnancy Accommodations
Passing the PWFA is particularly important for pregnant workers in the 20 states that currently have no state-level law providing a right to reasonable accommodations.Some additional workers may be covered by city-level or other sub-state-level laws, such as workers in Philadelphia. See https://nationalpartnership.org/wp-content/uploads/2023/02/reasonable-accommodations-for-pregnant-workers-state-laws.pdf for more information. Each year, those states are home to more than one million pregnant workers, including nearly 175,000 Black women, more than 126,000 Latina women, 30,700 AANHPI women, 8,500 AI/AN women and 29,000 multiracial women. More than four in ten Black pregnant workers and nearly half of Native pregnant workers live in states without a pregnancy accommodation law.
Across the Country, a Majority of Women Work for Pay While Pregnant
In every state, including the District of Columbia, we found that more than six in ten pregnant women work for pay in the year they are pregnant. That share rises to 80 percent or more in five states (Vermont, Minnesota, New Hampshire, South Dakota and Rhode Island).
Pregnant workers make up a small share of the overall workforce – about 1.6 percent on average. In the four states (North Dakota, South Dakota, Nebraska and Utah) with the highest share of pregnant workers, they make up about two percent of the workforce. That means that while pregnancy accommodations are critically important for pregnant workers, only a small share of workers are likely to need them in any given year, particularly since not every pregnant worker will need a workplace accommodation.
We also analyze the workforce in each state, where data allow, by major racial and ethnic group as well as by disability status and by economic insecurity. (See Appendix Table 2.)
- For example, each year in Kentucky, there are more than 15,800 economically insecure pregnant workers.
- In North Carolina, approximately 20,600 Black women, 7,900 Latina women, and 3,500 AANHPI women are pregnant workers each year; nearly 2,900 pregnant workers in the state are women with disabilities and 34,400 are economically insecure.
- In Oklahoma, an estimated 4,000 Native women each year are pregnant workers, as are nearly 4,900 Latina women, nearly 3,400 Black women and about 3,000 multiracial women.
While some states have state-level PWFA laws, a federal law would also benefit pregnant workers in those states by providing an additional layer of protection and avenue for workers to find relief.
Pregnant Workers in Every State Need the Pregnant Workers Fairness Act
The PWFA would help prevent employers in every state from forcing pregnant people out of the workplace and help ensure that employers provide reasonable accommodations to pregnant workers. As a result, the PWFA would prevent both the harm of economic insecurity and workplace conditions that are harmful during pregnancy, supporting healthy birth outcomes.
The PWFA would:
- Require employers to make reasonable, temporary accommodations for workers affected by a known limitation related to pregnancy, childbirth or related medical conditions.
- Require an interactive process between employers and pregnant workers to determine appropriate reasonable accommodations, similar to the Americans with Disabilities Act.
- Provide an exemption for businesses if an accommodation imposes an undue hardship on an employer.
- Protect pregnant workers from retaliation, coercion, intimidation, threats or interference if they request or use an accommodation.
- Apply to employers with 15 or more employees and provide protections for both job applicants and employees.
The Senate has the opportunity to pass the Pregnant Workers Fairness Act and protect nearly 2.8 million pregnant workers each year from the impossible choice between keeping their livelihoods or having a safe and healthy pregnancy.
Acknowledgment: Significant contributions to this brief were made by Shaina Goodman, Sharita Gruberg, Mettabel Law, Erin MacKay, Jake McDonald, Carol Sakala, Cristina Toppin and Gail Zuagar.
Methodological note: This analysis uses the 2016-2020 American Community Survey accessed via IPUMS USA, University of Minnesota, www.ipums.org. We use a five-year dataset to have a sufficient sample size to analyze state-level data. Data limitations do not permit an estimate of individuals who were employed during the months of pregnancy; in this analysis, pregnant workers are those who reported having given birth during the previous year and having worked for pay or profit during the previous year. Racial categories in this analysis exclude women who identify as Latina and/or Hispanic, who are analyzed separately. Due to data limitations, this analysis does not include people who do not identify as women but may become pregnant, including transgender men and nonbinary people. Women in this analysis are ages 16-50 due to data constraints.
