​Erin Murphy worked at Glencore, where her employer described her as a strong leader and one of the hardest working colleagues. After she became pregnant, her boss announced and circulated a news article at work about how pregnancy alters the brain while Murphy was the only pregnant woman in the office. She said, “It was like they assumed my brain had totally changed overnight. I was seen as having no more potential.” Later in a meeting about her future career, her boss said she was old and having babies, so there was nowhere for her to go.

Unfortunately, Murphy’s experience of discrimination due to being pregnant is one of many. In 2019, pregnancy discrimination claims against employers were reaching an all-time high, and by 2020, tens of thousands of women had filed pregnancy discrimination lawsuits against their employers. A 2022 national survey found that one in five women say they have experienced pregnancy discrimination at work and that nearly one in four mothers have “considered leaving their jobs due to a lack of reasonable accommodations or fear of discrimination during a pregnancy.”

The need for anti-discrimination laws is an unfortunate reality of human nature in a free society. It can be both physically distressing and economically harmful to women to work in situations where pregnancy discrimination exists. But while the need for the law is lamentable (and unintended consequences exist), overall the new Pregnant Workers Fairness Act (PWFA) is a positive step to support the family institution in society. Below, we take a deeper look into how the bill came to be, its benefits, and its implications for employers.

Background

Pregnancy discrimination has been a longstanding problem, with accounts existing long before the PWFA’s introduction in 2012. Past laws, like those in the late 1800s, banned women from working in jobs that were too strenuous. This changed to a degree in 1908 when the Supreme Court challenged an Oregon statute and reasoned that a mother’s physical well-being via physical work is a public interest. Later, in 1978, Congress passed the Pregnancy Discrimination Act in response to a Supreme Court ruling that said excluding pregnant workers from employee benefits was not sex discrimination. The new law prohibited pregnant workers from being discriminated against and directed such workers to be treated the same as other employees who were similar in their ability or inability to work. According to advocates, however, the new law was insufficient. They argued that the Pregnancy Discrimination Act of 1978 contained loopholes that were causing pregnancy discrimination to remain “rampant.”

Employee benefits from the Pregnant Workers Fairness Act

With pregnancy discrimination still occurring in the workplace, Congress passed the Pregnant Workers Fairness Act (PWFA) in late 2022. It attracted wide nonpartisan and bipartisan support except for a few conservative voices worried about the law’s lack of religious organization exclusion – for example, supporting a worker’s personal decision around an abortion. In response, a Republican Senate aide explained, “The legislation as introduced does not supersede current law protections for religious employers, which is why this legislation is endorsed by the U.S. Conference of Catholic Bishops.”

The PWFA is a federal law to provide pregnant workers with more comprehensive protections than before. Businesses with 15 or more employees must now provide reasonable accommodations for eligible individuals with known limitations regarding pregnancy, childbirth and related medical conditions, unless such accommodations place an undue hardship on the employer. These accommodations should be provided for workers even when their limitations do not rise to the level of a disability or prevent them from performing essential job functions. Also, employers cannot require their workers to take leave as part of an accommodation. Instead, employers must engage in a good faith, interactive process with their employees to determine an accommodation. For an in-depth review of the bill, see my Employer FAQ.

The PWFA provides significant aid to current and future mothers by allowing eligible employees to bring a baby to term and in better health in a safer working environment. A 2021 study showed experiencing pregnancy discrimination can increase stress – stress which can then increase postpartum depression, lower birth weights and gestational ages, and increase doctor visits. On the other hand, having supportive coworkers and supervisors was associated with a decreased risk for postpartum depression and a quicker physical recovery after having the baby.

Providing these supportive environments is important, as the whole first year after giving birth is a vulnerable time for postpartum mothers. Thirty percent of reported maternal fatalities occur between six weeks and a year after a baby is born, and most notably include suicide, overdose, hemorrhage and heart problems. With the PWFA, women can ask for reasonable accommodations that keep them and their babies safe.

The PWFA helps provide a more supportive working environment for eligible women. Employers are prohibited from retaliating against eligible employees who request reasonable accommodations concerning pregnancy, childbirth and related medical conditions. These protections give women more freedom to work without fear of their employer responding negatively to their decisions about having children. This is essential to maintaining and strengthening the family institution.

PWFA sponsor Sen. Jeanne Shaheen (D-NH) said, “Women are a critical part of our workforce, and we should do everything we can to support the expecting mothers who are working to provide for their families and contributing to the economy.”

Because women make up such a significant part of the workforce, providing a supportive work environment for prospective and current mothers will strengthen the economy and support families. With the passage of the PWFA, employees can be reassured that if they become pregnant, they will more likely have a supportive work environment during and beyond their pregnancy. The PWFA also supports the family institution because it helps women who are the sole or secondary providers to work more freely to feed their families – an increasingly frequent situation these days amid rising living costs.

Dina Bakst, from a Better Balance, the organization that helped create the new law, said, “[Women no longer have to choose between] maintaining a healthy pregnancy or a safe recovery from childbirth and a paycheck. … [It is] a win for women, families, and the economy.”

The PWFA helps the family institution move closer to being treated on similar institutional terms as government and business.

Unintended consequences

Notwithstanding the law’s benefits for employees and employers, the PWFA may have unintended consequences for both parties. The new law will inevitably and more significantly affect female-dominated industries like teaching, healthcare, beauty, and clerical and administrative services. These industries may need to shift how they utilize their female workforce as a whole because their workforce will be more likely to request and require pregnancy-related accommodations than the workforces in more gender-neutral or male-dominated industries. For example, the PWFA could possibly lead to more acute nurse shortages in the healthcare industry, with its already strained nursing workforce, as more female nurses ask for pregnancy-related work accommodations.

Also, employers may experience disrupted business processes as they accommodate eligible employees. Disrupted operations can increase the employer’s risk of business inefficiencies via human errors, workplace safety hazards, and decreased employee morale and company revenue. In more extreme cases, the law may incentivize employees to extend their reasonable accommodation for as long as possible, which could decrease the company’s productivity and revenue.

Conclusion

After over 100 years of debate on how pregnant workers can engage in the workforce, the PWFA offers employees supportive work environments and supports the family institution. It may be wise for employers in female-dominated industries to take a closer look at how this bill may affect them. In any industry, however, it is hoped that this new law will decrease the frequency of pregnancy discrimination in the workplace, so that women like Erin Murphy will have somewhere to turn professionally, rather than feeling like they have no good options.