Working Group on Pregnancy Accommodation

Some 40 years after passage of the Pregnancy Discrimination Act, pregnancy discrimination remains remarkably prevalent and remarkably open.  In fact, pregnancy discrimination suits are one of the fastest-growing arenas of employment law. Pregnant women often are fired within hours or days of announcing their pregnancies; not infrequently, women are given the choice of getting an abortion or getting fired.

Key Moment of Opportunity

This is a key moment of opportunity to sharply expand workplace protections for pregnant women due to the recent passage of the Amendments to the American With Disabilities Act (ADAAA). The interaction of the ADAAA and the Pregnancy Discrimination Act means that American women should now be able not only to counter discrimination more effectively; they also should be able to gain access to the kinds of accommodations they often need in order to keep their jobs. It is important to work pro-actively to try to ensure that the ADAAA is interpreted to require pregnancy accommodation in a wide range of cases.

WLL Working Groups: A History of Success

Joan C. Williams, Distinguished Professor and Founding Director of the Center for WorkLife Law at the University of California Hastings College of the Law, has recently formed a Working Group on Pregnancy Accommodation. Williams, called “a giant in her field” by the Chair of the Equal Employment Opportunity Commission (EEOC), has run similar groups for over a decade. These groups are widely credited with creating a new area of employment law (called family responsibilities discrimination) as well as generating new social science studies documenting that discrimination against motherhood is the strongest form of gender discrimination. These are important tools to address the “motherhood penalty”: the wage gap between mothers and others is far larger than the wage gap between men and women. Women will never achieve equality until mothers do, and mothers will never achieve equality so long as discrimination remains widespread against mothers and pregnant women.

Working Group Goals

The Working Group brings together employment attorneys, social scientists, and physicians. The lawyers will develop a concerted strategy to gain new rights for pregnant women by developing the new legal theories articulated by Williams and others in their recent invited testimony before the EEOC. The physicians will develop models for doctors’ notes to employers, given Williams’ finding that pregnant women often get fired because the way doctors write their notes ordering workplace restrictions is not tied in effectively with pregnant women’s legal rights.

The Working Group will meet twice a year for two years. During the first year, the group will crystalize its interpretations of existing law, identify what new social science studies are needed, and make a list of common pregnancy-related conditions that affect both the mother and the fetus. During the second year, the group will draft a series of Model Pregnancy Accommodation Notes, and develop a dissemination plan to bring them to awareness of doctors throughout the country;  publish its legal theories both in a law review and in outlets read by practitioners, and seek to appear on panels at NELA, the ABA Labor and Employment Section etc.; and 3) seek publication of the new social science studies, perhaps through a special issue of the Journal of Social Issues (where the results of two prior working groups run by Williams were published).