The decade-long journey to end pregnancy discrimination

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Jul 07, 2023 View in browser   By Sophie Gardner POLITICO illustration/Photos by iStock In 2012, Dina Bakst and other representatives from A Better Balance, a nonprofit that advocates for gender equity in the workplace, met with Rep. Jerry Nadler (D-N.Y.) to discuss how to best craft the first version of the Pregnant Workers Fairness Act. A decade later, pregnant workers will — finally — benefit from some of those protections. The PWFA was first introduced in Congress 2012, and then introduced in every legislative session thereafter until finally, it made it over the finish line. It first passed in the House in 2020 with sweeping bipartisan support, but didn’t make it to the Senate floor that session. In May of 2021, it passed in the House again, and then passed in the Senate in December 2o22 as part of the omnibus spending bill. It went into effect last week. The Act provides pregnant and postpartum workers the right to reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions, unless such accommodations would pose an “undue hardship” to the employer. Despite bipartisan support, proponents say they struggled to make the Senate see the act as a priority. It took a decade of advocacy, two Congressional hearings, and a few strong supporters on Capitol Hill to finally bring it to life. “It really is such common sense legislation. I thought it would pass a long time ago,” Sen. Patty Murray (D-Wash.), who’s been an advocate for the bill since it was first introduced, tells Women Rule. “It required a huge amount of tenacity, doggedness, creative thinking and just unyielding pressure on both Republicans and Democrats in the Senate to make sure that this bill was a priority,” says Vania Leveille, the senior legislative counsel at the ACLU National Political Advocacy Department, who was a key supporter of the legislation. Before the PWFA, when people asked for pregnancy related accommodations – like temporarily switching to a less physically demanding job – they were sometimes turned down or even fired. “I heard from too many women in Pennsylvania and around the country that they were denied reasonable accommodations like a stool, a water bottle, or extra bathroom breaks,” says Senator Bob Casey (D-Pa.), who was also a vocal advocate for the act. Adds Murray, “I was hearing from women who had literally quit their job when they were pregnant because there were no accommodations,” Murray says. “I was amazed at how many women contacted us and told us their stories.” The catalyst was an op-ed that Bakst penned in the New York Times in 2012, where she wrote that her legal team at A Better Balance had seen many cases of pregnant workers being fired after asking for help. The op-ed caught the eye of Nadler, who reached out to A Better Balance for assistance in drafting a bill. Later that year, Nadler and a few colleagues introduced the first version of the PWFA to the House. For the next few years, Bakst and other advocates took their efforts to the states to encourage lawmakers to pass their own pregnancy protections – helping draft legislation, testifying at statehouses and working with business owners to help them understand the bills. So far, over 30 states have and cities have laws that provide accommodations to pregnant workers. That “helped show members of Congress that these laws in these states were working, because we brought many examples of workers to members of Congress to show that the state laws were helping keep pregnant women healthy and attached to the workforce,” Bakst says. Their cause stumbled in 2015, when the Supreme Court sided with a UPS worker who claimed that the company denied her request for light-duty work during her pregnancy. On the face of it, that would bode well for the passage of national legislation. But the Young v. United Parcel Service decision didn’t offer clear direction for employers, according to Allison Dembeck, vice president of education and labor advocacy, government affairs at the U.S. Chamber of Commerce. “That Supreme Court case injected all kinds of questions into how to provide accommodations,” Dembeck tells Women Rule, “and employers became even more cautious after that. Because if you read that decision there is really no way to determine what an employer is actually supposed to do or not to.” Dembeck says that the SCOTUS decision, combined with ambiguities in the Pregnancy Discrimination Act of 1978, which outlawed pregnancy-related discrimination in the workplace, made the PWFA all the more necessary. In 2019, the Chamber of Commerce began negotiating with advocacy groups, including the ACLU and A Better Balance, to help find ways to change the bill to resolve some concerns the Chamber had about the PWFA. “We sat down and said ‘Look, we don’t want to be against this. But the way you're approaching this isn’t going to work, and employers actually are facing a real problem here. And we have the same goal. So let's work together and try to try to actually come up with an answer,’” Dembeck recalled. The act needed to be modeled off the Americans with Disabilities Act, to give it a “framework,” according to Dembeck. She says that included changes like exempting employers with fewer than 15 employees and ensuring that requests for accommodations are more of a “negotiation” between employee and employer, as opposed to simply requiring the employer to approve a pregnancy-related request. Congress adopted the new language, and, in 2020, the Chamber of Commerce threw their support behind the bill – which the ACLU’s Leveille calls “a turning point.” Two years later, after some panic about how to fit in a vote before Democrats lost control of the House, the PWFA passed as part of the omnibus package – still garnering support from both sides of the aisle, on and off Capitol Hill. “It really required a lot of effort to build strong bipartisan support for the legislation in the House and the Senate,” says KJ Hertz, senior director of federal affairs for March of Dimes, a group that lobbied for the PWFA. “We had to take several different cracks at it.” “It's not usual for you to have the ACLU, the Chamber of Commerce and the U.S. Conference of Catholic Bishops on the same side of an issue,” Leveille says. POLITICO Special Report J. Scott Applewhite/AP Photo “The Delaware senator who transformed Joe Biden’s view of transgender rights,” by Myah Ward for POLITICO: “McBride’s close ties with the Biden family date back over 15 years. Last week, the country’s first transgender state senator announced she’s running for Delaware’s open House seat, in a bid that could make her the first openly transgender member of the U.S. Congress.” “Bypassing Biden: Democrats Think of What Could Have Been,” by Jonathan Martin for POLITICO: “Democrats in Michigan’s congressional delegation have pleaded with [Gretchen] Whitmer to run, I’m told by officials familiar with the conversations, and the lawmakers have themselves been nudged by colleagues from other states to push her. Notably, that roster of congressional Democrats from other states eager for a Whitmer bid included members of the Congressional Black Caucus.” “The parents group Republicans are banking on to win the White House,” by Juan Perez Jr. for POLITICO: “Moms for Liberty kicked off its second-ever ‘Joyful Warriors’ national summit in the urban heart of this critical swing state on Thursday, and the roster of special guests says plenty about a group that didn’t even exist three years ago.” “Fox News settles lawsuit with Tucker Carlson producer for $12M,” by Lawrence Ukenye for POLITICO. Number of the Week Read more here. MUST READS Andrew Harnik/AP Photo “House Republicans are baking abortion restrictions into spending bills — and avoiding public votes,” by Chabeli Carrazana for the 19th: “Nearly all of the recent spending bills that have cleared the Republican-controlled House Appropriations Committee have included measures to restrict access to abortions, setting up a fight with Senate Democrats, who’ve pledged to block such measures during looming negotiations to fund the government.” “Women were disproportionately affected by the tech layoffs,” by Emily Peck for Axios. “Immigrant women are joining the job market at record levels, boosting U.S. employment,” by Don Lee for Los Angeles Times: “People born outside the U.S. make up just 17.5 percent of the American working-age population, but foreign-born workers 16 years and older accounted for a whopping 64 percent of the nation’s labor force growth in the two-year period that ended in May, with women making an outsized contribution, according to the Bureau of Labor Statistics.” “Women are returning to the job market in droves, just when the U.S. needs them most,” by Scott Horsley for NPR. Quote of the Week Read more here. Transitions Sara Neagu-Reed will be director of production and environmental policy at the International Fresh Produce Association. She previously was director of advocacy and government affairs at AmericanHort. Maury Riggan is now general counsel for the Biden-Harris 2024 reelection campaign. She most recently was special assistant to the president and senior director for the executive secretariat at the National Security Council. Isabel González Whitaker is joining Moms Clean Air Force as associate VP for public engagement. She most recently was COO of All in Together. (h/t Playbook.)   Follow us on Twitter Sophie Gardner @sophie_gardnerj   Follow us

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