What Workplace Rights Look Like for Moms at the End of the Decade
By: Candace Alnaji
Tags: Discrimination, Women, Parenting, 2020, Equality

What Workplace Rights Look Like for Moms at the End of the Decade

Here’s what we’ve learned in the last 10 years.

Photo: Klaus Vedfelt/Getty Images

The past 10 years have been big ones for women’s rights at work, with a burst of renewed energy and awareness for the issue. From pregnancy to workplace lactation rights, the fight for equality and protection under the law has surged — though progress has not come without its challenges.

The beginning of the decade emerged as the dawn of a progressive new era. In 2010 President Barack Obama signed the Affordable Care Act into law. While the Act was not without controversy, it included two provisions that protected the rights of breastfeeding mothers. The first required certain employers to provide reasonable break time and a private space to express breast milk. The second provision mandated insurers to provide coverage of breastfeeding supplies and support services.

To make this possible, the Act amended section 7 of the Fair Labor Standards Act (“FLSA”), thereby creating the “Break Time for Nursing Mothers Provision.” The creation of the provision was a groundbreaking piece of legislation.

However, the intervening years have highlighted some issues with the law.

For one, the provision may not apply to employers with under 50 employees if its enforcement would impose an undue hardship (which the employer has a burden to prove). Since the protections are afforded by FLSA, which applies to non-exempt employees, federal lactation rights also apply only to those classified as non-exempt employees under the Fair Labor Standards Act (FLSA). As such, employees who are exempt from FLSA are not covered by the law. This typically includes those who earn a regular salary over $23,660 and perform certain exempt job duties.

The federal law is a little toothless when it comes to enforcement. The law does not currently provide for damages, though it does provide for accommodation and back-pay if a worker was fired or lost income as a result of pumping.

In September 2019, HuffPost released the results of its investigation of workplace lactation claims filed with the U.S. Department of Labor.

The report revealed what lactation rights advocates have known for a while — the nursing accommodations for many working women are dire in many of today’s workplaces. HuffPost’s review found that employers broke the law in 68% of the cases it obtained.

In over half the cases, employers failed to provide adequate space for pumping. In roughly a third, they failed to provide the legally mandated break time. In nearly one out of every five cases, employers violated both provisions. A worker complaint initiated most of the investigations.

Advocates for workplace lactation rights agree that more stringent protections are needed. More than that, however, employers need to understand their legal obligation.

This decade also saw the advancement — and pitfalls — concerning the rights of pregnant workers.

In 2015, the U.S. Supreme Court heard the case of Young v. United Parcel Service, Inc. Like most cases that reach SCOTUS, the matter had been years in the making. Petitioner Peggy Young had worked as a part-time driver for United Parcel Service (UPS). Her responsibilities included the pickup and delivery of packages.

Young’s story began when she became pregnant in 2006 after several miscarriages and undergoing in vitro fertilization. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. Young’s job with UPS required that she be able to lift packages weighing up to 70 pounds (and up to 150 pounds with assistance). After Young informed UPS of her restrictions, UPS informed Young she could not work with it in effect. Young consequently stayed home without pay for most of her pregnancy and eventually lost her health insurance.

Young gave birth in April 2007 and returned to her job with UPS shortly thereafter. In July 2007, she filed a charge against UPS with the EEOC for the events that arose during her pregnancy. The EEOC issued Young a right to sue letter in September 2008, and she filed a federal lawsuit against UPS the following month. The matter wound its way through the courts with Young losing at both the district and circuit court level. In each case, the court found against Young because she could not show that similarly situated employees received more favorable treatment than she did — an important element in a pregnancy discrimination case.

Young appealed to the U.S. Supreme Court, which granted a review of the case during the 2014 term.

In deciding the case, the Court essentially adopted a new standard for reviewing cases under the Pregnancy Discrimination Act (PDA). It held that, if an employer is already accommodating many employees with work limitations similar to those affecting the pregnant worker, then the employer must present a sufficient justification for why it cannot similarly accommodate the pregnant worker.

The Court’s decision also adopted a new standard for disparate treatment under the PDA, stating that complainants could establish evidence of discrimination by “providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers.”

Workers’ rights and women’s rights advocates celebrated the decision as an advancement of the rights of pregnant workers.

Young’s attorneys praised the decision as a win not only for Young, but for “all women in the workplace.” The Court’s decision was indeed much more worker-friendly than prior judicial interpretations of the PDA.

In the years that followed Young, pregnancy rights advocates eagerly waited to see how other courts would apply the new standard to PDA cases.

In June 2016, the National Women’s Law Center (NWLC) issued a fact sheet detailing some of the effects of Young on new pregnancy discrimination claims. The NWLC’s review found that, between March 2012 and March 2015, the vast majority of pregnancy discrimination cases — over 70 percent — were thrown out by federal courts. In fact, between March 2012 and March 2013, none of the plaintiffs’ claims survived motions to dismiss or motions for summary judgment.

Conversely, the Center found that, the federal pregnancy discrimination cases that followed the Young decision showed a reversal of the previous trend, with 73 percent of plaintiffs’ pregnancy accommodation claims proceeding past the initial stages of a lawsuit.

The EEOC also saw a drop in pregnancy-related claims, with the most notable decline occurring in the years following Young.

Of course, it wasn’t all good news on the pregnancy discrimination front.

Laws may change the legal standard, but they don’t necessarily change minds. Attorneys representing pregnant workers continued to see an influx of pregnancy discrimination cases even after Young. Some of this may have been due in part to women becoming more cognizant of their rights.

In recent years, sites like Pregnant at Work by the UC Hastings Center for Work Life Law and A Better Balance have created readily accessible, easy to understand guides for pregnant workers.

In May 2019, A Better Balance released Long Overdue, a report of the pregnancy discrimination landscape in the United States.

The report found that, over 40 years after the passage of the PDA and four years after Young, women still face significant obstacles at work regarding pregnancy. Although Young v. UPS set a new legal standard for evaluating pregnancy accommodation cases under the PDA, women have continued to suffer workplace discrimination and push-back from the courts.

In an extensive review of post-Young pregnancy accommodation cases conducted for the report, A Better Balance found that in over two-thirds of cases, despite the new Young standard, courts held employers were permitted to deny pregnant workers accommodations under the PDA.

In September 2019, A Better Balance released an update following its May 2019 report. In it, it noted that the “pregnancy accommodation landscape has continued to change in two key respects.” First, courts have continued to misapply the Young standard, leaving pregnant workers without crucial pregnancy accommodations at work. Second, states have continued to pass their own laws to protect pregnant workers.

However, as A Better Balance has recognized, a state-by-state patchwork of rights is not enough for America’s pregnant workers. It encouraged support of the bipartisan federal Pregnant Workers Fairness Act, backed by Rep. Jerrold Nadler (D-NY), Rep. John Katko (R-NY), and Senator Bob Casey (D-PA). This Act would require employers to provide reasonable accommodations to employees for pregnancy, childbirth, and related medical conditions, unless such accommodation would cause an undue hardship for the employer.

Whether the Pregnant Workers Fairness Act will come to fruition remains to be seen.

As we enter this next decade, legal advocates will continue to push for uniform, bipartisan solutions to workplace inequality. However, it’s important to remember that that is not enough. It’s not enough that attorneys and lawmakers care about the issue. Workers must care. Employers must care.

The issues of pregnancy discrimination and workplace lactation rights are not “just” a problem for women. They’re a problem for equality. Many of today’s workplaces bear the mindset and structure of a time gone by. As we enter the next decade, we must build on the gains and lessons of the last 10 years, carrying forward what has worked and closing the gaps for equality.