Fairness needed for pregnant workers

Editor's note: Arjun Sethi is a lawyer in Washington and a frequent commentator on civil rights and social justice-related issues. He collaborated on this essay with the National Women's Law Center.

(CNN) -- Peggy Young just wanted to support her family. As an employee at United Parcel Services, she delivered letters and packages, a job that sometimes required heavy lifting. When she became pregnant, she asked for a lighter assignment. UPS denied the request. Although they routinely granted accommodations to other employees, Young wasn't eligible.

Throughout America, pregnant women in physically demanding jobs face an unconscionable choice: protect their health or keep their job. In Kansas, Heather Wiseman was fired for carrying a water bottle to remain hydrated; in New York, Patricia Leahy was terminated for refusing to "perform heavy lifting, climbing ladders and other strenuous movements." In Texas, Tennessee, and Alabama, women were fired, just like Young, because they couldn't lift heavy objects.

The Pregnancy Discrimination Act of 1978 requires employers to treat pregnant women the same way they treat other employees with similar limitations. If a moving company permits a worker to sit at a desk because of a temporary back condition then a pregnant woman with a lifting restriction must be extended the same accommodation. Congress' message was clear: pregnancy and work are compatible.

Arjun Sethi

Employers, however, routinely ignore this mandate, and are forcing pregnant women out of the workplace. In each of the cases just described, the pregnant woman lost in court because she could not prove discrimination. The courts explained that the refusal to provide accommodations was based on gender-neutral and pregnancy-blind policies that were legal, albeit unfair. Wiseman's termination for carrying water, for example, was upheld because all employees were prohibited from carrying water on the sales floor. Gender-neutral? Yes. Fair? No. Not every employee has a medical need to carry water to remain hydrated and prevent infection.

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This reasoning has also led to shocking inconsistencies and has permitted employers to treat pregnant workers worse than other employees. Consider Young's case. UPS had a policy of accommodating employees who were involved in a car accident or lost their driver's license due to drunk driving but fired Young after she requested a lighter assignment. In another case, the New York City Transit Authority accommodated workers who were injured while exercising but forced a pregnant worker out. A consortium of public-interest groups led by the ACLU is now helping Young appeal her case to the U.S. Court of Appeals for the 4th Circuit.

To be sure, some courts have come out the other way. These judges are ensuring that pregnant workers enjoy the same opportunities as other employees and are not penalized by unfair policies that employers defend as gender-neutral.

The Equal Employment Opportunity Commission is also combating the problem and has designated pregnancy discrimination an enforcement priority for the next four years.

These efforts, however, aren't enough. Not every pregnant employee who is wronged can find a lawyer nor can the budget-constrained EEOC prosecute every case. And many courts have shown a disturbing willingness to turn back these claims and open gaping loopholes in the Pregnancy Discrimination Act.

The problem, meanwhile, is vast. Many women are the breadwinners of their family and can't afford unpaid leave. Others will lose seniority or get passed over for promotions when they return to the job. For those who are fired, they face the daunting challenge of securing employment in a still flailing economy that penalizes the unemployed, not to mention mothers, who are less likely to be hired and promoted.

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New legislation championed by the National Women's Law Center, and recently introduced in both the House and Senate, would close many of these loopholes. The Pregnant Workers Fairness Act would require employers to offer pregnant employees the same kinds of accommodations they offer the disabled under the Americans with Disabilities Act.

Make no mistake: pregnancy is not a disability. It's a joyous part of life. But by elevating it to the same level of protection as disabilities, the rule would be clear: employers could not fire or force pregnant employees out of the workplace just because they request a reasonable accommodation. Fair allowances -- the right to carry a water bottle, a chair, intermittent breaks, a lifting restriction -- would have to be respected.

The first piece of legislation President Obama signed into law was the Lilly Ledbetter Fair Pay Act. Ledbetter had worked tirelessly for Goodyear for nearly two decades only to learn that she had been denied equal pay. She later brought suit against her employer but lost after the U.S. Supreme Court ruled that she had waited too long to bring her case. In an important joint effort, Congress and the president passed legislation allowing claims like Ledbetter's to proceed.

Pregnant workers need protection, too. All they seek is fair treatment. Is that too much to ask?

The opinions expressed in this commentary are solely those of Arjun Sethi.