Working for Justice

The Choice Between Working and Being Pregnant: Yes.

Working while pregnant is hard.

If you don’t believe me (and why should you?), read this.  If you’re a man, read it again, because, holy crap.  And keep in mind that the pregnant lawyer/blogger describes (1) a pregnancy that is “normal” (which is to say, one that does not leave her disabled in the eyes of the law and does not pose any unusual risk to her unborn child); and (2) a job that requires no physical exertion beyond that which is necessary to haul herself repeatedly between the toilet and her desk, affords her some degree of scheduling flexibility, and provides her with good health insurance.  And still, holy crap, working while pregnant is hard.  I’m glad I’ll never have to do it.

In contrast to our pregnant lawyer/blogger friend, whose job conditions allow her to soldier on despite her “delicate condition,” many pregnant women with more physically demanding jobs simply aren’t able to do so without modest, reasonable accommodations by their employers.  Take, for instance, the example of a beat cop.  When Officer Lyndi Trischler asked that she temporarily be permitted to perform light-duty office work as her pregnancy progressed because, as her doctor noted, her gun belt “pulled painfully on her expanding abdomen,” her bulletproof vest was too tight to allow her to breathe normally, and she began having heart palpitations, the city of Florence, Kentucky told her no.  She was forced to decide between continuing to go on patrol or taking unpaid leave.  With another child at home to provide for, she went back on patrol until she “physically couldn’t do the job anymore” and had no choice but to take unpaid leave (and wonder how she would continue to provide for her family).

Another example is that of Peggy Young, a former UPS driver who (also based on her doctor’s recommendation) asked for temporary light duty so that she would not have to continue to lift heavy packages as her pregnancy advanced.  UPS refused, noting that its policy of giving light duty to workers injured on the job, or those who had lost drivers licenses, did not require it to give light duty to pregnant workers.  Ms. Young sued.  The district court and the Fourth Circuit Court of Appeals found that UPS had not unlawfully discriminated against Ms. Young on the basis of her pregnancy.  The Supreme Court will hear oral argument in the case this December.

Last week, Democratic lawmakers, civil rights advocates, health care providers, women business leaders, and a group of bipartisan state legislators filed “friend of the court” briefs in support of Ms. Young.  They argue that, under the Pregnancy Discrimination Act, employers who provide work accommodations to non-pregnant workers with work limitations must provide work accommodations to pregnant workers who are “similar in their ability or inability to work.”  If one values the right of women to work, this would seem to be a fairly obvious point: if you temporarily accommodate a worker who can’t lift heavy weights because he threw his back out, you should also be required to temporarily accommodate a worker who can’t lift heavy weights because she is eight months pregnant.  But, as the Fourth Circuit’s decision illustrates, it is not an obvious point.  For a fuller discussion, see here and here.

While courts grapple with the question of whether federal law presently protects pregnant workers like Officer Trischler and Ms. Young from having to choose between working and being pregnant, many—but not all—state governments have passed laws that guarantee reasonable accommodations for pregnant workers.  Yet, astoundingly, Congress has yet to pass the Pregnant Worker’s Fairness Act, a bill that would resolve this question once and for all, for women across the country.  Without the Pregnant Worker’s Fairness Act, millions of pregnant women will continue to be denied the modest workplace accommodations—like being permitted to use a stool while working at a cash register, or to carry a bottle of water to stay hydrated—that would allow them to continue earning a living while maintaining healthy pregnancies.

I know we are a nation that values hard work.  I hope we are a nation that also values women and their right to work.  But if we continue to force hard working women to choose between earning a living and being pregnant—by denying them even modest workplace accommodations—I am left to wonder.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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