This blog post originally appeared on ACSBlog.

Thirty-five years ago, the Pregnancy Discrimination Act (“PDA”) was signed into law, remedying the Supreme Court’s 1976 decision in General Electric Company v. Gilbert holding that discrimination on the basis of pregnancy was not sex discrimination, but rather discrimination between pregnant and non-pregnant persons. Congress acted quickly to rebuke this analysis by passing the PDA, which recognizes what is obvious to most–that discrimination on the basis of pregnancy is unlawful discrimination on the basis of sex. The PDA also makes clear that women affected by pregnancy, childbirth, or related conditions must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” As a result of the PDA, once common policies such as forcing pregnant women off the job regardless of their ability to work are no longer permissible.

Yet, pregnancy discrimination still persists more than a generation after the PDA’s passage. This is in part because stereotypes about pregnant women persist in the workplace, despite the law’s protection. But, even more troublingly, pregnancy discrimination also persists because some courts have read the language of the PDA narrowly, ignoring both its plain language and its intent and limiting its protections for pregnant workers.

Specifically, courts have opened loopholes in the PDA that have too often left without protection those women who need temporary work accommodations because of pregnancy. Many women work through their pregnancies without any need for accommodation, but some pregnant workers, particularly those who work in more physically demanding or less flexible jobs, need some adjustments in work rules or duties. When their requests for reasonable accommodations—such as being allowed to carry a water bottle, refrain from climbing ladders, or avoid heavy lifting—are refused, pregnant workers must often choose between their paycheck and a healthy pregnancy—even when their employers provide similar accommodations to employees who need them because of disability or injury.

Courts hearing PDA claims brought by these women, however, have often twisted the plain language of the law beyond recognition. The PDA unambiguously states that pregnant workers must be treated as well as those “similar in their ability or inability to work.” Legislative history confirms that Congress didn’t choose this language by accident. For example, the Senate committee report stated that the PDA was meant to ensure that pregnant workers “must be accorded the same rights, leave privileges and other benefits, as workers who are disabled from working.” The House report even specifies that this would include practices such as “transferring workers to lighter assignments.” Under law, then, pregnant workers who cannot perform physical tasks such as lifting over 25 pounds should be accommodated if their employer would accommodate workers with disabilities or injuries who have a similar restriction.

But some courts have refused to believe that the PDA means what it says.

They have focused not on whether the pregnant worker is similar in her ability to work to workers with an injury or disability whom her employer accommodates, but instead on whether the terms of her employment were identical. These courts have held that a woman cannot succeed in a pregnancy discrimination claim unless she identifies another employee who is not pregnant, but who has symptoms nearly identical to hers, who works in the same position as her, for the same supervisor as her, whom her employer accommodated. This hurdle will often be impossible to meet, particularly in small workplaces. Even worse—some courts, have held that even when a woman identifies this non-pregnant identical twin, she will still lose, unless she can prove that the employer’s failure to provide the accommodation was motivated by a specific wish to harm pregnant women.

For example, earlier this year the Fourth Circuit ruled against Peggy Young, who was a UPS driver who sought accommodation of a lifting restriction when she was pregnant. Even though UPS accommodated a wide array of workers similar to Peggy in their ability to work, including workers with disabilities, workers with on-the job injuries, workers with a wide variety of conditions that disqualified them from holding commercial drivers’ licenses, and even drivers who were unable to do their jobs because of D.U.I. convictions, the Fourth Circuit held that it UPS did not violate the PDA when it refused to accommodate Peggy or any other pregnant worker.

The EEOC must enforce the PDA vigorously and fight back against these misinterpretations—and as a first important step, it has identified pregnancy accommodations as a strategic enforcement priority through 2016. But what would be even better for pregnant workers? A clear, unambiguous legislative fix. Luckily, one has been introduced in Congress: the Pregnant Workers Fairness Act. The Act tracks the language and structure of the Americans with Disabilities Act, requiring employers to provide reasonable accommodations to pregnant workers who need them as a result of their pregnancies—just as they already do for disabilities. It would make unmistakably clear what the PDA was intended to accomplish— workers who are unable do particular tasks because they are pregnant should be treated as well as workers who are unable to do similar tasks because of a disability. It’s long past time to make this happen.

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