Passing the Pregnant Workers Fairness Act Leaves Lessons for the Future

On June 27, the Pregnant Workers Fairness Act (PWFA) went into effect, ensuring that most pregnant and postpartum workers will be entitled to receive the reasonable and medically-necessary accommodations they need in order to continue working.

The new law is the culmination of a hard-won 10-year-plus campaign that arose from the lived experience of pregnant workers and new parents sharing their stories of facing bias, discrimination, and, often, job loss and financial hardship when employers denied requests for accommodations. At a time of deep partisan division and little action at the federal level on other critical care, gender equity and work-family justice policies, the PWFA and PUMP Act (an expansion of workplace lactation rights to an estimated 9 million workers that had previously been excluded) passed last December with overwhelming bipartisan support. As a result of PWFA, employers must now provide medically necessary, reasonable accommodations to the nearly 2.8 million people who work while pregnant each year.

Before PWFA and the more than two dozen state and local laws that have passed in the last decade, some workers, particularly those in low-wage, male-dominated occupations, were forced onto unpaid leave before their due dates, making them use precious leave time they’d hoped to use after the arrival of their baby to bond and recover. Some lost their jobs. Some lost their homes. The reasonable accommodations they requested were often relatively low lifts for employers and included things like appropriately fitting uniforms, the ability to work temporary light duty assignments while pregnant, additional bathroom or water breaks, or flexible schedules, yet there was no requirement that employers address these requests. And some pregnant workers never spoke up to ask about accommodations at all for fear of discrimination or retaliation, and either jeopardized their health and the health of their pregnancy, or left work.

Just days after the law went into effect, the Better Life Lab co-hosted an event with A Better Balance to celebrate this win for family-sustaining public policy, explore what it took to pass, and analyze what lessons there are to learn to build on for the future of the care movement. A Better Balance, a national advocacy organization that uses the power of the law to advance justice for workers so they can care for themselves and their loved ones without jeopardizing their economic security, was a key player at every step of the policy development of and fight for the passage of the PWFA.

At our joint event—The Pregnant Workers Fairness Act and the Future of the Care Movement—we dug into Winning the Pregnant Workers Fairness Act, A Better Balance’s comprehensive report on the path to winning PWFA. During this discussion, we also explored the eight strategies they identified as key to passing the groundbreaking civil rights law, with a particular focus on the power of storytelling and workers sharing their lived experience, how critical it is to forge broad alliances and diverse coalitions at the state and national level, the role of state policy wins, the engagement of businesses and business organizations, and the pathways to building bipartisan support.

Our event started off with a fireside chat, moderated by BLL Director Brigid Schulte, featuring Dina Bakst, ABB co-founder and co-president, and two workers who experienced pregnancy discrimination. The workers, Lyndi Trischler and Natasha Jackson, both reached out to ABB’s free legal hotline for help when they experienced pregnancy discrimination and wound up becoming ABB community advocates, sharing their stories. They were instrumental in driving widespread support for state PWFA laws and the federal bill. “This movement has been grounded in the lived experience of workers,” Bakst said. “This has never been a policy solution in search of a problem.”

In fact it was stories like Trischler’s and Jackson’s that sparked the movement in the first place, Bakst continued. As ABB writes in their new report: “Pregnant workers needed immediate relief to protect their health and avoid devastating economic consequences. Instead, they routinely faced two impossible options: work without an accommodation and risk their health, or take unpaid leave—or worse yet, lose their job.”

Jackson, a mother who experienced pregnancy discrimination twice, became an advocate for herself and others after the second instance ended in her losing her job, her home, and her marriage. The experience is also what provoked her to get involved in other efforts, such as the fight for raising the minimum wage in her home state of South Carolina.

Trischler, a police officer in Kentucky, said at the event that she was forced to take unpaid leave rather be granted desk duty when her protective gear would no longer fit during her pregnancy. At first reluctant to share her story, she became bolder the more she heard that she wasn’t alone. “I wanted policy change, not just for myself, but for women coming after me," she said. (Schulte wrote about Trischler’s story and the quest for reasonable accommodations for pregnant workers in the Washington Post in 2014—one of the first journalists in the mainstream media to do so.)

In 2015, another story about Peggy Young, a pregnant UPS driver who was denied light duty, was key in shaping the PWFA. Many assumed that the U.S. Supreme Court ruling in Young v. UPS, finally provided pregnant workers the protections they needed. But in reality, the decision only created more confusion, Bakst said during the panel. In 2019, ABB published data showing that two-thirds of pregnant workers were losing cases under that flawed legal standard.

“That data lit a fire,” Bakst said. “It became really apparent it was time for a legislative fix.”

The two laws that many assumed ensured pregnant workers would receive fair treatment—the 1978 Pregnancy Discrimination Act and the Americans with Disabilities Act—were instead failing pregnant workers. Bakst wrote an editorial in the New York Times, Pregnant and Pushed out of a Job, detailing the reality of both laws’ loopholes:

Few people realize that getting pregnant can mean losing your job. Imagine a woman who, seven months into her pregnancy, is fired from her position as a cashier because she needed a few extra bathroom breaks. Or imagine another pregnant employee who was fired from her retail job after giving her supervisors a doctor’s note requesting she be allowed to refrain from heavy lifting and climbing ladders during the month and a half before her maternity leave: that’s what happened to Patricia Leahy. In 2008 a federal judge in Brooklyn ruled that her firing was fair because her employers were not obligated to accommodate her needs. We see this kind of case in our legal clinic all the time.

The stories in that piece served as an opening salvo of sorts, bringing public attention to the often devastating experience of pregnancy discrimination and calling for action.

A second panel, moderated by BLL senior fellow Vicki Shabo, explored how a broad, diverse and, at times, unusual constellation of organizational partners pushing for change helped Congress get this important law over the finish line last December. Vania Leveille, the senior legislative counsel for the ACLU, discussed how advocates worked on building connections and credibility, not just in blue states, but in red states and among Republicans and others who leaned conservative on the political spectrum via polling and local outreach to policymakers to highlight how the law would benefit their constituents.

“People don’t want to vote against the idea of letting pregnant workers sit down if they need to,” added Emily Martin, the vice president of the National Women’s Law Center, later in the discussion. She and others said that getting state-level laws passed—often with unanimous support—helped show “proof of concept” and build broad support for a clear national law.

The PWFA would also have a positive impact on Black maternal health, according to Stacey Brayboy, the senior vice president of public policy and government affairs at March of Dimes. Protections offered under the law will likely prevent complications and ensure Black pregnant workers are able to maintain economic stability during the pre and postpartum periods.

Some of the other key lessons for the future of the care and gender equity movements that panelists highlighted included:

“Come up with a long menu of different tactics,” said Leveille.

“Working hard. Answering every question. Not taking ‘No’ for an answer. Staying at the table, building trust, working through disagreements for the good of a greater cause,” said Brayboy.

“Winning is possible,” said Martin.

“The power of value-based messaging to resonate with people across the political spectrum,” said Bakst.

“Persistence. Collaboration. And persistence again,” said Sarah Brafman, the national policy director at A Better Balance.

“Find the sweet spot.” And listen across differences, said Marc Freedman, the vice president of employment policy with the U.S. Chamber of Commerce.

We hope the Pregnant Workers Fairness Act will allow more pregnant people the opportunity to thrive, as it is their human right to be able to do so. We also hope it will pave the way for many of the policy advances we need to see to advance gender and racial equity through more investment in family-sustaining policies like paid family and medical leave, child care, and other elements of care infrastructure.