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116th Congress  }                                       {   Rept. 116-494
                        HOUSE OF REPRESENTATIVES
 2d Session     )                                       {      Part 1

======================================================================



 
                     PREGNANT WORKERS FAIRNESS ACT

                                _______
                                

 September 8, 2020.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Scott of Virginia, from the Committee on Education and Labor, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2694]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 2694) to eliminate discrimination and promote 
women's health and economic security by ensuring reasonable 
workplace accommodations for workers whose ability to perform 
the functions of a job are limited by pregnancy, childbirth, or 
a related medical condition, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     5
Committee Action.................................................     7
Committee Views..................................................    11
Section-by-Section Analysis......................................    32
Explanation of Amendments........................................    35
Application of Law to the Legislative Branch.....................    35
Unfunded Mandate Statement.......................................    35
Earmark Statement................................................    35
Roll Call Votes..................................................    35
Statement of Performance Goals and Objectives....................    38
Duplication of Federal Programs..................................    38
Hearings.........................................................    38
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    38
New Budget Authority and CBO Cost Estimate.......................    38
Committee Cost Estimate..........................................    39
Changes in Existing Law Made by the Bill, as Reported............    39
Committee Correspondence.........................................    40
Minority Views...................................................    49

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Pregnant Workers Fairness Act''.

SEC. 2. NONDISCRIMINATION WITH REGARD TO REASONABLE ACCOMMODATIONS 
                    RELATED TO PREGNANCY.

  It shall be an unlawful employment practice for a covered entity to--
          (1) not make reasonable accommodations to the known 
        limitations related to the pregnancy, childbirth, or related 
        medical conditions of a qualified employee, unless such covered 
        entity can demonstrate that the accommodation would impose an 
        undue hardship on the operation of the business of such covered 
        entity;
          (2) require a qualified employee affected by pregnancy, 
        childbirth, or related medical conditions to accept an 
        accommodation other than any reasonable accommodation arrived 
        at through the interactive process referred to in section 5(7);
          (3) deny employment opportunities to a qualified employee if 
        such denial is based on the need of the covered entity to make 
        reasonable accommodations to the known limitations related to 
        the pregnancy, childbirth, or related medical conditions of a 
        qualified employee;
          (4) require a qualified employee to take leave, whether paid 
        or unpaid, if another reasonable accommodation can be provided 
        to the known limitations related to the pregnancy, childbirth, 
        or related medical conditions of a qualified employee; or
          (5) take adverse action in terms, conditions, or privileges 
        of employment against a qualified employee on account of the 
        employee requesting or using a reasonable accommodation to the 
        known limitations related to the pregnancy, childbirth, or 
        related medical conditions of the employee.

SEC. 3. REMEDIES AND ENFORCEMENT.

  (a) Employees Covered by Title VII of the Civil Rights Act of 1964.--
          (1) In general.--The powers, remedies, and procedures 
        provided in sections 705, 706, 707, 709, 710, and 711 of the 
        Civil Rights Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the 
        Commission, the Attorney General, or any person alleging a 
        violation of title VII of such Act (42 U.S.C. 2000e et seq.) 
        shall be the powers, remedies, and procedures this Act provides 
        to the Commission, the Attorney General, or any person, 
        respectively, alleging an unlawful employment practice in 
        violation of this Act against an employee described in section 
        5(3)(A) except as provided in paragraphs (2) and (3) of this 
        subsection.
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes (42 U.S.C. 1988) shall be the powers, 
        remedies, and procedures this Act provides to the Commission, 
        the Attorney General, or any person alleging such practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes (42 U.S.C. 1981a), 
        including the limitations contained in subsection (b)(3) of 
        such section 1977A, shall be the powers, remedies, and 
        procedures this Act provides to the Commission, the Attorney 
        General, or any person alleging such practice (not an 
        employment practice specifically excluded from coverage under 
        section 1977A(a)(1) of the Revised Statutes).
  (b) Employees Covered by Congressional Accountability Act of 1995.--
          (1) In general.--The powers, remedies, and procedures 
        provided in the Congressional Accountability Act of 1995 (2 
        U.S.C. 1301 et seq.) to the Board (as defined in section 101 of 
        such Act (2 U.S.C. 1301)) or any person alleging a violation of 
        section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)) shall be 
        the powers, remedies, and procedures this Act provides to the 
        Board or any person, respectively, alleging an unlawful 
        employment practice in violation of this Act against an 
        employee described in section 5(3)(B), except as provided in 
        paragraphs (2) and (3) of this subsection.
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes (42 U.S.C. 1988) shall be the powers, 
        remedies, and procedures this Act provides to the Board or any 
        person alleging such practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes (42 U.S.C. 1981a), 
        including the limitations contained in subsection (b)(3) of 
        such section 1977A, shall be the powers, remedies, and 
        procedures this Act provides to the Board or any person 
        alleging such practice (not an employment practice specifically 
        excluded from coverage under section 1977A(a)(1) of the Revised 
        Statutes).
          (4) Other applicable provisions.--With respect to a claim 
        alleging a practice described in paragraph (1), title III of 
        the Congressional Accountability Act of 1995 (2 U.S.C. 1381 et 
        seq.) shall apply in the same manner as such title applies with 
        respect to a claim alleging a violation of section 201(a)(1) of 
        such Act (2 U.S.C. 1311(a)(1)).
  (c) Employees Covered by Chapter 5 of Title 3, United States Code.--
          (1) In general.--The powers, remedies, and procedures 
        provided in chapter 5 of title 3, United States Code, to the 
        President, the Commission, the Merit Systems Protection Board, 
        or any person alleging a violation of section 411(a)(1) of such 
        title shall be the powers, remedies, and procedures this Act 
        provides to the President, the Commission, the Board, or any 
        person, respectively, alleging an unlawful employment practice 
        in violation of this Act against an employee described in 
        section 5(3)(C), except as provided in paragraphs (2) and (3) 
        of this subsection.
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes (42 U.S.C. 1988) shall be the powers, 
        remedies, and procedures this Act provides to the President, 
        the Commission, the Board, or any person alleging such 
        practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes (42 U.S.C. 1981a), 
        including the limitations contained in subsection (b)(3) of 
        such section 1977A, shall be the powers, remedies, and 
        procedures this Act provides to the President, the Commission, 
        the Board, or any person alleging such practice (not an 
        employment practice specifically excluded from coverage under 
        section 1977A(a)(1) of the Revised Statutes).
  (d) Employees Covered by Government Employee Rights Act of 1991.--
          (1) In general.--The powers, remedies, and procedures 
        provided in sections 302 and 304 of the Government Employee 
        Rights Act of 1991 (42 U.S.C. 2000e-16b; 2000e-16c) to the 
        Commission or any person alleging a violation of section 
        302(a)(1) of such Act (42 U.S.C. 2000e-16b(a)(1)) shall be the 
        powers, remedies, and procedures this Act provides to the 
        Commission or any person, respectively, alleging an unlawful 
        employment practice in violation of this Act against an 
        employee described in section 5(3)(D), except as provided in 
        paragraphs (2) and (3) of this subsection.
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes (42 U.S.C. 1988) shall be the powers, 
        remedies, and procedures this Act provides to the Commission or 
        any person alleging such practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes (42 U.S.C. 1981a), 
        including the limitations contained in subsection (b)(3) of 
        such section 1977A, shall be the powers, remedies, and 
        procedures this Act provides to the Commission or any person 
        alleging such practice (not an employment practice specifically 
        excluded from coverage under section 1977A(a)(1) of the Revised 
        Statutes).
  (e) Employees Covered by Section 717 of the Civil Rights Act of 
1964.--
          (1) In general.--The powers, remedies, and procedures 
        provided in section 717 of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e-16) to the Commission, the Attorney General, the 
        Librarian of Congress, or any person alleging a violation of 
        that section shall be the powers, remedies, and procedures this 
        Act provides to the Commission, the Attorney General, the 
        Librarian of Congress, or any person, respectively, alleging an 
        unlawful employment practice in violation of this Act against 
        an employee described in section 5(3)(E), except as provided in 
        paragraphs (2) and (3) of this subsection.
          (2) Costs and fees.--The powers, remedies, and procedures 
        provided in subsections (b) and (c) of section 722 of the 
        Revised Statutes (42 U.S.C. 1988) shall be the powers, 
        remedies, and procedures this Act provides to the Commission, 
        the Attorney General, the Librarian of Congress, or any person 
        alleging such practice.
          (3) Damages.--The powers, remedies, and procedures provided 
        in section 1977A of the Revised Statutes (42 U.S.C. 1981a), 
        including the limitations contained in subsection (b)(3) of 
        such section 1977A, shall be the powers, remedies, and 
        procedures this Act provides to the Commission, the Attorney 
        General, the Librarian of Congress, or any person alleging such 
        practice (not an employment practice specifically excluded from 
        coverage under section 1977A(a)(1) of the Revised Statutes).
  (f) Prohibition Against Retaliation.--
          (1) In general.--No person shall discriminate against any 
        employee because such employee has opposed any act or practice 
        made unlawful by this Act or because such employee made a 
        charge, testified, assisted, or participated in any manner in 
        an investigation, proceeding, or hearing under this Act.
          (2) Prohibition against coercion.--It shall be unlawful to 
        coerce, intimidate, threaten, or interfere with any individual 
        in the exercise or enjoyment of, or on account of such 
        individual having exercised or enjoyed, or on account of such 
        individual having aided or encouraged any other individual in 
        the exercise or enjoyment of, any right granted or protected by 
        this Act.
          (3) Remedy.--The remedies and procedures otherwise provided 
        for under this section shall be available to aggrieved 
        individuals with respect to violations of this subsection.
  (g) Limitation.--Notwithstanding subsections (a)(3), (b)(3), (c)(3), 
(d)(3), and (e)(3), if an unlawful employment practice involves the 
provision of a reasonable accommodation pursuant to this Act or 
regulations implementing this Act, damages may not be awarded under 
section 1977A of the Revised Statutes (42 U.S.C. 1981a) if the covered 
entity demonstrates good faith efforts, in consultation with the 
employee with known limitations related to pregnancy, childbirth, or 
related medical conditions who has informed the covered entity that 
accommodation is needed, to identify and make a reasonable 
accommodation that would provide such employee with an equally 
effective opportunity and would not cause an undue hardship on the 
operation of the covered entity.

SEC. 4. RULEMAKING.

  Not later than 2 years after the date of enactment of this Act, the 
Commission shall issue regulations in an accessible format in 
accordance with subchapter II of chapter 5 of title 5, United States 
Code, to carry out this Act. Such regulations shall provide examples of 
reasonable accommodations addressing known limitations related to 
pregnancy, childbirth, or related medical conditions.

SEC. 5. DEFINITIONS.

  As used in this Act--
          (1) the term ``Commission'' means the Equal Employment 
        Opportunity Commission;
          (2) the term ``covered entity''--
                  (A) has the meaning given the term ``respondent'' in 
                section 701(n) of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e(n)); and
                  (B) includes--
                          (i) an employer, which means a person engaged 
                        in industry affecting commerce who has 15 or 
                        more employees as defined in section 701(b) of 
                        title VII of the Civil Rights Act of 1964 (42 
                        U.S.C. 2000e(b));
                          (ii) an employing office, as defined in 
                        section 101 of the Congressional Accountability 
                        Act of 1995 (2 U.S.C. 1301) and section 411(c) 
                        of title 3, United States Code;
                          (iii) an entity employing a State employee 
                        described in section 304(a) of the Government 
                        Employee Rights Act of 1991 (42 U.S.C. 2000e-
                        16c(a)); and
                          (iv) an entity to which section 717(a) of the 
                        Civil Rights Act of 1964 (42 U.S.C. 2000e-
                        16(a)) applies;
          (3) the term ``employee'' means--
                  (A) an employee (including an applicant), as defined 
                in section 701(f) of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e(f));
                  (B) a covered employee (including an applicant), as 
                defined in section 101 of the Congressional 
                Accountability Act of 1995 (2 U.S.C. 1301);
                  (C) a covered employee (including an applicant), as 
                defined in section 411(c) of title 3, United States 
                Code;
                  (D) a State employee (including an applicant) 
                described in section 304(a) of the Government Employee 
                Rights Act of 1991 (42 U.S.C. 2000e-16c(a)); or
                  (E) an employee (including an applicant) to which 
                section 717(a) of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e-16(a)) applies;
          (4) the term ``person'' has the meaning given such term in 
        section 701(a) of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e(a));
          (5) the term ``known limitation'' means physical or mental 
        condition related to, affected by, or arising out of pregnancy, 
        childbirth, or related medical conditions that the employee or 
        employee's representative has communicated to the employer 
        whether or not such condition meets the definition of 
        disability specified in section 3 of the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12102);
          (6) the term ``qualified employee'' means an employee or 
        applicant who, with or without reasonable accommodation, can 
        perform the essential functions of the employment position, 
        except that an employee or applicant shall be considered 
        qualified if--
                  (A) any inability to perform an essential function is 
                for a temporary period;
                  (B) the essential function could be performed in the 
                near future; and
                  (C) the inability to perform the essential function 
                can be reasonably accommodated; and
          (7) the terms ``reasonable accommodation'' and ``undue 
        hardship'' have the meanings given such terms in section 101 of 
        the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) 
        and shall be construed as such terms are construed under such 
        Act and as set forth in the regulations required by this Act, 
        including with regard to the interactive process that will 
        typically be used to determine an appropriate reasonable 
        accommodation.

SEC. 6. WAIVER OF STATE IMMUNITY.

  A State shall not be immune under the 11th Amendment to the 
Constitution from an action in a Federal or State court of competent 
jurisdiction for a violation of this Act. In any action against a State 
for a violation of this Act, remedies (including remedies both at law 
and in equity) are available for such a violation to the same extent as 
such remedies are available for such a violation in an action against 
any public or private entity other than a State.

SEC. 7. RELATIONSHIP TO OTHER LAWS.

  Nothing in this Act shall be construed to invalidate or limit the 
powers, remedies, and procedures under any Federal law or law of any 
State or political subdivision of any State or jurisdiction that 
provides greater or equal protection for individuals affected by 
pregnancy, childbirth, or related medical conditions.

SEC. 8. SEVERABILITY.

  If any provision of this Act or the application of that provision to 
particular persons or circumstances is held invalid or found to be 
unconstitutional, the remainder of this Act and the application of that 
provision to other persons or circumstances shall not be affected.

                          Purpose and Summary

    When Congress passed the Pregnancy Discrimination Act of 
1978,\1\ which amended Title VII of the Civil Rights Act of 
1964,\2\ its objective was to eradicate pregnancy 
discrimination in the workplace and ensure that pregnant 
workers were treated the same as their coworkers. Yet nearly 42 
years after its passage, federal law still falls short of 
guaranteeing that all pregnant workers have reasonable 
workplace accommodations. H.R. 2694, the Pregnant Workers 
Fairness Act, ensures that pregnant workers who work for 
employers with 15 or more employees have access to reasonable 
accommodations in the workplace for pregnancy, childbirth, and 
related medical conditions. When pregnant workers do not have 
access to reasonable workplace accommodations, they are often 
forced to choose between their financial security and a healthy 
pregnancy. Ensuring that pregnant workers have access to 
reasonable accommodations will promote the economic well-being 
of working mothers and their families and promote healthy 
pregnancies.
---------------------------------------------------------------------------
    \1\42 U.S.C. Sec. 2000e(k).
    \2\42 U.S.C. Sec. 2000e.
---------------------------------------------------------------------------
    H.R. 2694, as amended in markup, has been endorsed by 1,000 
Days, 9to5, 9to5 California, 9to5 Colorado, 9to5 Georgia, 9to5 
Wisconsin, A Better Balance, Adobe, Advocates for Youth, 
African American Ministers In Action, Alianza Nacional de 
Campesinas, All-Options, Amalgamated Bank, American Association 
of University Women (AAUW), American Civil Liberties Union 
(ACLU), American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO), American Federation of State, County, 
and Municipal Employees (AFSCME), American Federation of 
Teachers (AFT), Asian Pacific American Labor Alliance, 
Association of Maternal & Child Health Programs, Association of 
Women's Health, Obstetric and Neonatal Nurses, Breastfeeding 
Mother, Building Pathways, California Breastfeeding Coalition, 
California Women's Law Center, California Work & Family 
Coalition, Casa de Esperanza: National [email protected] Network for 
Healthy Families and Communities, Center for Parental Leave 
Leadership, Center for Public Policy Priorities, Center for 
Reproductive Rights, Centro de Trabajadores Unidos (United 
Workers Center), U.S. Chamber of Commerce, Child Care Law 
Center, Chinese Progressive Association (San Francisco), Church 
World Service, Citizen Action of NY, Center for Law and Social 
Policy (CLASP), Clearinghouse on Women's Issues, Closing the 
Women's Health Gap, Coalition on Human Needs, Coalition of 
Labor Union Women, Coalition of Labor Union Women Philadelphia 
Chapter, Communication Workers of America (CWA), Congregation 
of Our Lady of the Good Shepherd, U.S. Provinces, DC Jobs with 
Justice, Disciples Center for Public Witness, Economic Policy 
Institute, EMC Strategies, Equal Pay Today, Equal Rights 
Advocates, Family Equality, Family Values @ Work, Farmworker 
Justice, Feminist Majority Foundation, Friends Committee on 
National Legislation, Futures Without Violence, Gender Justice, 
Hadassah, Healthy Work Campaign, Center for Social 
Epidemiology, ICM Partners, In Our Own Voice: National Black 
Women's Reproductive Justice Agenda, Indiana AFL-CIO, Indiana 
Chapter of Unite Here Local 23, Indiana Institute for Working 
Families, Interfaith Worker Justice, Jewish Women 
International, Jobs With Justice, Justice for Migrant Women, 
Kansas Breastfeeding Coalition, Inc., Kentucky Equal Justice 
Center, KWH Law Center for Social Justice and Change, Labor 
Council for Latin American Advancement (LCLAA), Labor Project, 
Leadership Conference for Civil and Human Rights (LCCHR), Legal 
Aid at Work, Legal Momentum, L'Oreal USA, Legal Voice, Levi 
Strauss & Co, Main Street Alliance, Maine Women's Lobby, Make 
the Road New York, MANA, A National Latina Organization, March 
of Dimes, Massachusetts Coalition for Occupational Safety & 
Health, Metro-Detroit Chapter of the Coalition of Labor Union 
Women (CLUW), Michigan Immigrant Rights Center, Microsoft 
Corporation, MomsRising, MS Black Women's Roundtable, Mujeres 
Unidas y Activas, NARAL Pro-Choice America, NARAL Pro-Choice 
Colorado, National Advocacy Center of the Sisters of the Good 
Shepherd, National Advocates for Pregnant Women, National Asian 
Pacific American Women's Forum (NAPAWF), National Association 
for the Advancement of Colored People (NAACP), National Center 
for Lesbian Rights, National Center for Transgender Equality, 
National Consumers League, National Council for Occupational 
Safety and Health (COSH), National Council of Jewish Women, 
National Council of Jewish Women California, National Domestic 
Workers Alliance, National Education Association (NEA), 
National Employment Law Project (NELP), National Employment 
Lawyers Association, National Immigration Law Center, National 
Network to End Domestic Violence, National Organization for 
Women, National Resource Center on Domestic Violence, National 
Partnership for Women & Families, National WIC Association, NC 
National Organization for Women (NC NOW), Nebraska Appleseed, 
NETWORK Lobby for Catholic Social Justice, New Working 
Majority, NJ Citizen Action; NJ Time to Care Coalition, North 
Carolina Justice Center, Oxfam America, PA NOW, Parent Voices 
CA, PathWays PA, PhilaPOSH, Prevent Child Abuse NC, Physicians 
for Reproductive Health, Poligon Education Fund, PowHer New 
York, Pride at Work, Public Citizen, Quetzal, Restaurant 
Opportunities Centers United, RESULTS, RI CLUW, San Francisco 
CLUW Chapter, Service Employees International Union, SEIU 32BJ, 
Sexuality Information and Education Council of the United 
States (SIECUS), Shriver Center on Poverty Law, Silver in the 
City, Society for Human Resource Management (SHRM), Southern CA 
Coalition for Occupational Safety & Health, Southwest 
Pennsylvania National Organization for Women, Southwest Women's 
Law Center, Spotify, TASH, Technology Concepts Group 
International, LLC, The Greenlining Institute, The Leadership 
Conference on Civil and Human Rights, The Ohio Women's Public 
Policy Network, The Women's Zionist Organization of America, 
Inc., The Zonta Club of Greater Queens, TIME'S UP Now, United 
Food and Commercial Workers International Union (UFCW), Ujima 
Inc: The National Center on Violence Against Women in the Black 
Community, UltraViolet, UnidosUS, Union for Reform Judaism, 
United Electrical, Radio and Machine Workers of America, United 
Food and Commercial Workers International Union (UFCW), United 
for Respect, United State of Women, United States Breastfeeding 
Committee, U.S. Women's Chamber of Commerce, United 
Steelworkers, United Way of Kentucky, University of Illinois at 
Chicago, School of Public Health, Division of Environmental &, 
Occupational Health Sciences, Vision y Compromiso, Voices for 
Children in Nebraska, Voices for Progress, Warehouse Worker 
Resource Center, Western Center on Law and Poverty, William E. 
Morris Institute for Justice Arizona, Women4Change, Women's 
Achievement Network and Development Alliance, Women & Girls 
Foundation, Women Employed, Women of Reform Judaism, Women's 
Center for Education and Career Advancement, Women's Employment 
Rights Clinic Golden Gate University, Women's Foundation of 
California, Women's Fund of Rhode Island, Women's Law Project, 
Women's March, Women's Rights and Empowerment Network, The 
Women's Legal Defense and Education Fund, Work Equity, Workers' 
Center of Central New York, Worker Justice Center of New York, 
Worksafe, Workplace Fairness, YWCA Mahoning Valley, YWCA McLean 
County, YWCA New Hampshire, YWCA Northwestern Illinois, YWCA 
USA, and ZERO TO THREE.

                            Committee Action


                             112TH CONGRESS

    On May 8, 2012, Representative Jerrold Nadler (D-NY-10) 
introduced H.R. 5647, the Pregnant Workers Fairness Act. The 
bill had 112 Democratic cosponsors. The bill required employers 
to make reasonable accommodations for the known limitations 
related to pregnancy, childbirth, or related medical 
conditions, unless the accommodation imposed an undue hardship 
on the business. The bill also made it unlawful for employers 
to deny employment opportunities based on the need for 
reasonable accommodations; require employees to accept an 
accommodation they did not choose; and require employees to 
take leave if another accommodation could be provided. The bill 
was referred to the House Committees on Education and the 
Workforce, Administration, Oversight and Government Reform, and 
Judiciary. Subsequently, the Committee on Education and the 
Workforce referred the bill to the Subcommittee on Health, 
Employment, Labor, and Pensions. The Judiciary Committee 
referred the bill to the Subcommittee on the Constitution. No 
further action was taken on the bill.
    On September 19, 2012, Senator Robert P. Casey, Jr. (D-PA) 
introduced S. 3565, the Pregnant Workers Fairness Act, as a 
companion bill to H.R. 5647. The bill had nine cosponsors: 
eight Democrats and one Independent. The bill was referred to 
the Senate Committee on Health, Education, Labor, and Pensions. 
No further action was taken on the bill.

                             113TH CONGRESS

    On May 14, 2013, Representative Nadler introduced H.R. 
1975, the Pregnant Workers Fairness Act. This bill was 
identical to the version introduced in the 112th Congress and 
had 142 Democratic cosponsors. The bill was referred to the 
House Committees on Education and the Workforce, 
Administration, Oversight and Government Reform, and Judiciary. 
Subsequently, the Committee on Education and the Workforce 
referred the bill to the Subcommittee on Workforce Protections, 
and the Judiciary Committee referred the bill to the 
Subcommittee on the Constitution and Civil Justice. No further 
action was taken on the bill.
    On the same day, Senator Casey introduced an identical 
companion bill in the Senate: S. 942, the Pregnant Workers 
Fairness Act. It had 33 cosponsors: 32 Democrats and one 
Independent. The bill was referred to the Committee on Health, 
Education, Labor, and Pensions. No further action was taken on 
the bill.

                             114TH CONGRESS

    On June 4, 2015, Representative Nadler introduced H.R. 
2654, the Pregnant Workers Fairness Act. The bill had 149 
sponsors: 146 Democrats and three Republicans. This version of 
the bill had the same four protections as the previously 
introduced bills, but also added a provision protecting workers 
from retaliation for requesting or using reasonable 
accommodations. The bill was referred to the House Committees 
on Education and the Workforce, Administration, Oversight and 
Government Reform, and Judiciary. The Committee on Education 
and the Workforce referred the bill to the Subcommittee on 
Workforce Protections, and the Judiciary Committee referred the 
bill to the Subcommittee on the Constitution and Civil Justice. 
No further action was taken on the bill.
    On the same day, Senator Casey introduced S. 1512, the 
Pregnant Workers Fairness Act, as a companion bill. This bill 
also maintained the same four protections from prior versions 
and added a provision protecting workers from retaliation for 
requesting or using reasonable accommodations. The bill had 31 
cosponsors, including one Independent and three Republicans. It 
was referred to the Committee on Health, Education, Labor, and 
Pensions. No further action was taken on the bill.

                             115TH CONGRESS

    On May 11, 2017, Representative Nadler introduced H.R. 
2417, the Pregnant Workers Fairness Act. This version of the 
bill was identical to the one introduced in the 114th Congress. 
The bill had 131 cosponsors: 129 Democrats and two Republicans. 
The bill was referred to the House Committees on Education and 
the Workforce, Administration, Oversight and Government Reform, 
and Judiciary. The Judiciary Committee referred the bill to the 
Subcommittee on the Constitution and Civil Justice. No further 
action was taken on the bill.
    On the same day, Senator Casey introduced S. 1101, the 
Pregnant Workers Fairness Act, in the Senate. This version of 
the bill was identical to the one introduced in the 114th 
Congress. The bill had 27 cosponsors: 24 Democrats, two 
Independents, and one Republican. The bill was referred to the 
Committee on Health, Education, Labor, and Pensions. No further 
action was taken on the bill.

                             116TH CONGRESS

    On May 14, 2019, Representative Nadler introduced H.R. 
2694, the Pregnant Workers Fairness Act. This version of the 
bill is identical to the one introduced in the 115th Congress. 
The bill was referred to the House Committees on Education and 
Labor, Administration, Oversight and Reform, and Judiciary. 
Subsequently, the Committee on Education and Labor referred the 
bill to the Subcommittee on Civil Rights and Human Services, 
and the Judiciary Committee referred the bill to the 
Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties. There are 233 cosponsors as of the date of the 
filing of this report, including 16 Republicans. The bill makes 
it an unlawful employment practice to: (1) refuse to make 
reasonable accommodations for the known limitations related to 
the pregnancy, childbirth, or related medical conditions of a 
job applicant or qualified employee, unless the accommodation 
would impose an undue hardship on an entity's business 
operation; (2) require job applicants or employees to accept an 
accommodation that they do not want, if such accommodation is 
unnecessary to perform the job; (3) deny employment 
opportunities based on the need of the entity to make such 
reasonable accommodations to an applicant or employee; (4) 
require employees to take paid or unpaid leave if another 
reasonable accommodation can be provided; or (5) take adverse 
action in terms, conditions, or privileges of employment 
against an employee requesting or using reasonable 
accommodations. The bill sets forth enforcement procedures and 
remedies under various statutes that cover different types of 
employees, including private sector, state, local, federal, and 
congressional employees. The bill requires the Equal Employment 
Opportunity Commission to issue regulations within two years 
after the date of enactment. The bill makes clear that States 
are not immune from legal action under the Eleventh Amendment 
to the U.S. Constitution.
    To date, there is no Senate companion bill.
    On October 22, 2019, the House Committee on Education and 
Labor's Subcommittee on Civil Rights and Human Services held a 
legislative hearing entitled ``Long Over Due: Exploring the 
Pregnant Workers Fairness Act (H.R. 2694)'' (October 22nd 
Hearing). The hearing examined the health and economic effects 
of pregnant workers' lack of access to reasonable 
accommodations. The hearing also examined how H.R. 2694 would 
fill a gap in the existing legal framework by guaranteeing 
pregnant workers the right to reasonable workplace 
accommodations. The witnesses were: The Honorable Jerrold 
Nadler (D-NY-10); Michelle Durham, former Emergency Medical 
Technician (EMT), Arab, AL; Iris Wilbur, Vice President of 
Government Affairs and Public Policy at Greater Louisville Inc. 
The Metro Chamber of Commerce, Louisville, KY; Dina Bakst, Co-
Founder and Co-President of A Better Balance, New York, NY; and 
Ellen McLaughlin, Partner at Seyfarth Shaw LLP, Chicago, IL.
    On January 14, 2020, the House Committee on Education and 
Labor marked up H.R. 2694 and ordered it to be reported 
favorably, as amended, to the House of Representatives by a 
vote of 29 Yeas and 17 Nays.
    At the markup, the Committee considered the following 
amendments to H.R. 2694:
           Representative Robert C. ``Bobby'' Scott (D-
        VA-3), Chairman of the House Committee on Education and 
        Labor, offered an amendment in the nature of a 
        substitute (ANS). The ANS: (1) amended Section 2 to 
        ensure that an employer cannot require a qualified 
        employee to accept an accommodation other than one 
        established during the employer-employee interactive 
        negotiation process; (2) amended Section 3 to add a 
        good faith defense for covered entities and provided 
        that damages may not be awarded if the covered entity 
        demonstrates good faith in engaging in the interactive 
        process to identify and make reasonable accommodations; 
        (3) amended Section 4 to remove unnecessary rulemaking 
        language but preserves the Equal Employment Opportunity 
        Commission's obligation to promulgate regulations that 
        provide examples of reasonable accommodations within 
        two years of enactment; (4) amended Section 5 to 
        clarify that the term ``employer'' means a person 
        engaged in an industry affecting commerce who has 15 or 
        more employees as defined in Title VII of the Civil 
        Rights Act of 1964\3\; (5) amended Section 5 to add a 
        new definition of who is considered a ``qualified 
        employee'' by incorporating key elements from the 
        Americans with Disabilities Act of 1990\4\; (6) amended 
        Section 5 to add a new definition of the term ``known 
        limitations''; and (7) added a new Section 8 to include 
        a severability clause in the legislation. The ANS was 
        adopted by voice vote.
---------------------------------------------------------------------------
    \3\42 U.S.C. Sec. 2000e(b).
    \4\42 U.S.C. Sec. 12101.
---------------------------------------------------------------------------
           Representative Virginia Foxx (R-NC-5), 
        Ranking Member of the House Committee on Education and 
        Labor, offered an amendment in the nature of a 
        substitute. It was similar to the ANS offered by 
        Chairman Scott but included a provision to exempt 
        religious organizations from coverage under the bill 
        and would have allowed religious employers to deny 
        workers reasonable accommodations under the law. The 
        amendment was defeated by a vote of 17 Yeas and 27 
        Nays.

                            Committee Views

    The Committee on Education and Labor (Committee) is 
committed to protecting pregnant workers' health and economic 
security. No worker should have to choose between their health, 
the health of their pregnancy, and the ability to earn a 
living. H.R. 2694, the Pregnant Workers Fairness Act (PWFA), 
makes clear that pregnant workers have the right to reasonable 
accommodations absent undue hardship on the employer. The PWFA 
eliminates a lack of clarity in the current legal framework 
that has frustrated pregnant workers' legal rights to 
reasonable accommodations while providing clear guidance to 
both workers and employers.

    THE PREGNANCY DISCRIMINATION ACT OF 1978 AND THE AMERICANS WITH 
DISABILITIES ACT OF 1990 ARE INSUFFICIENT TO GUARANTEE PREGNANT WORKERS 
                       REASONABLE ACCOMMODATIONS

    Seventy-five percent of working women will become pregnant 
while employed at some time in their lives.\5\ Women are 
increasingly either the primary or co-breadwinners of 
households.\6\ As a result, more pregnant women work later into 
their pregnancies. Research suggests that more than 80 percent 
of first-time mothers work until their final month of 
pregnancy.\7\ Pregnant workers may need reasonable 
accommodations to protect the health of both mother and baby. 
Reasonable accommodations can include providing seating, water, 
and light duty. They do not need to be, nor are they typically, 
complicated or costly. But when pregnant workers do not have 
access to the reasonable workplace accommodations they need, 
they are forced to choose between their financial security and 
a healthy pregnancy.
---------------------------------------------------------------------------
    \5\Melissa Alpert, Center for American Progress, Labor Pains: 
Improving Employment and Income Security for Pregnant Women and New 
Mothers, 2 (2009), https://cdn.americanprogress.org/wp-content/uploads/
issues/2009/08/pdf/
labor_pains.pdf?_ga=2.262643852.1428433223.1599244597-
106194704.1597112689.
    \6\Sarah Jane Glynn, Center for American Progress, Breadwinning 
Mothers Continue To Be the U.S. Norm, 1 (2019) https://
cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf?_ga=2.257334027.1474637733.1598641131-
106194704.1597112689.
    \7\Lynda Laughlin, U.S. Census Bureau, Maternity Leave and 
Employment Patterns: 2006-2008 8 (2011), https://www.census.gov/prod/
2011pubs/p70-128.pdf.
---------------------------------------------------------------------------
    Although workers in need of pregnancy-related 
accommodations may be able to seek recourse under the Pregnancy 
Discrimination Act of 1978 (PDA)\8\ and Title I of the 
Americans with Disabilities Act of 1990 (ADA),\9\ varying 
interpretations have created an unworkable legal framework. 
This has frustrated pregnant workers' ability to secure 
reasonable accommodations. Under the PDA, a pregnant worker 
must show that her employer accommodated a co-worker who is 
``similar in their ability or inability to work'' (known as a 
comparator), which is a burdensome and often impossible 
standard to meet. Under the ADA, a pregnancy-related impairment 
that substantially limits a major life activity is a disability 
for which an employer may be required to provide reasonable 
accommodations.\10\ However, this standard leaves women with 
less serious pregnancy-related impairments, and who need 
accommodations, without legal recourse. As explained further 
below, the protections under these two statutes are 
insufficient to ensure that pregnant workers receive the 
accommodations they need.
---------------------------------------------------------------------------
    \8\42 U.S.C. Sec. 2000e(k).
    \9\42 U.S.C. Sec. Sec. 12111-12117.
    \10\29 C.F.R. Sec. 1630.
---------------------------------------------------------------------------

   HISTORY OF PREGNANT WORKERS' STATUTORY PROTECTIONS: THE PREGNANCY 
                       DISCRIMINATION ACT OF 1978

 COURTS MISINTERPRETED CONGRESSIONAL INTENT IN TITLE VII OF THE CIVIL 
                           RIGHTS ACT OF 1964

    Congress passed Title VII of the Civil Rights Act of 
1964\11\ (Title VII) to eliminate discrimination in employment 
on the basis of race, sex, color, national origin, and 
religion. In 1972, the Equal Employment Opportunity Commission 
(EEOC) issued guidelines on pregnancy discrimination, 
concluding that Title VII's prohibition against sex 
discrimination in the workplace included discrimination based 
on pregnancy.\12\ However, in two U.S. Supreme Court decisions 
in the 1970s, the Court ruled that pregnancy discrimination was 
not considered sex discrimination.
---------------------------------------------------------------------------
    \11\42 U.S.C. Sec. 2000e
    \12\29 CFR Sec. 1604.10(b) (1973).
---------------------------------------------------------------------------
    In Geduldig v. Aiello,\13\ the Court analyzed whether 
California's exclusion of pregnancy-related disabilities from 
its disability insurance program was a violation of the Equal 
Protection Clause of the Fourteenth Amendment to the 
Constitution and concluded it was not. The Court held that 
because benefits were not denied on the basis of gender,
---------------------------------------------------------------------------
    \13\Geduldig v. Aiello, 417 U.S. 484 (1974).

          [t]he California insurance program does not exclude 
        anyone from benefit eligibility because of gender but 
        merely removes one physical condition--pregnancy--from 
        the list of compensable disabilities. While it is true 
        that only women can become pregnant, it does not follow 
        that every legislative classification concerning 
        pregnancy is a sex-based classification.\14\
---------------------------------------------------------------------------
    \14\417 U.S. 484, 496-97 n. 20 (1974).

    Two years later, the Supreme Court decided General Electric 
Company v. Gilbert.\15\ At issue in Gilbert was a private 
employee disability benefits plan that excluded pregnancy-
related disability from coverage. Relying heavily on the prior 
decision in Aiello, the Court ruled that the exclusion did not 
constitute sex discrimination as prohibited by Title VII.\16\
---------------------------------------------------------------------------
    \15\General Electric Company v. Gilbert, 429 U.S. 125, 135-36 
(1976).
    \16\Id.
---------------------------------------------------------------------------

   WITH THE PREGNANCY DISCRIMINATION ACT OF 1978, CONGRESS SOUGHT TO 
                    OVERTURN SUPREME COURT PRECEDENT

    Congress passed the PDA to overturn the Supreme Court's 
erroneous interpretation of Title VII. The Senate Committee on 
Human Resources report for the PDA stated:

          [T]he assumption that women will become pregnant and 
        leave the labor market is at the core of the sex 
        stereotyping resulting in unfavorable disparate 
        treatment of women in the workplace. A failure to 
        address discrimination based on pregnancy, in fringe 
        benefits or in any other employment practice, would 
        prevent the elimination of sex discrimination in 
        employment.\17\
---------------------------------------------------------------------------
    \17\S. Rep. No. 95-331, at 3 (1977).

    Congress sought, through the PDA, to codify the EEOC's 
original interpretation of Title VII and ``make clear that the 
prohibitions against sex discrimination in the act include 
discrimination in employment on the basis of pregnancy.''\18\ 
In order to overturn Gilbert, the PDA amended Title VII in two 
parts. First, it amended the Title VII's definition of ``sex'' 
to include discrimination on the basis of pregnancy, 
childbirth, or related medical conditions as sex 
discrimination.\19\ In doing so, the PDA made clear that 
discrimination on the basis of pregnancy was discrimination on 
the basis of sex.\20\ Second, it added a provision that stated 
that pregnant workers ``shall be treated the same for all 
employment-related purposes . . . as other persons not so 
affected but similar in their ability or inability to 
work.''\21\ This language created the need for a pregnant 
worker to identify a comparable coworker or group of coworkers 
to determine whether she's been discriminated against. 
According to the House Committee on Education and Labor report 
for the PDA:
---------------------------------------------------------------------------
    \18\Id. at 1.
    \19\42 U.S.C. Sec. 2000e(k).
    \20\Brief for Members of Congress as Amici Curiae Supporting 
Petitioner at 9, Young v. United States Parcel Service, Inc., 135 S. 
Ct. 1338 (2015) (No. 12-1226).
    \21\42 U.S.C. Sec. 2000e(k).

          This legislation would clearly establish that the 
        prohibition against sex discrimination in Title VII of 
        the Civil Rights Act of 1964 includes a prohibition 
        against employment-related discrimination on the basis 
        of pregnancy, childbirth, or related medical 
        conditions. As an amendment to Title VII, the bill will 
        apply to all aspects of employment--hiring, 
        reinstatement, termination, disability benefits, sick 
        leave, medical benefits, seniority, and other 
        conditions of employment currently covered by Title 
        VII. Pregnancy-based distinctions will be subject to 
        the same scrutiny on the same terms as other acts of 
        sex discrimination proscribed in the existing 
        statute.\22\
---------------------------------------------------------------------------
    \22\H. Rep. No. 95-948, at 4 (1978).

    At the October 22nd Hearing, Ms. Bakst summarized Congress' 
---------------------------------------------------------------------------
intent with respect to the PDA:

          Thus, when Congress mandated that employers treat 
        pregnant women the same as `other persons similar in 
        their ability or inability to work' the intended result 
        was, and continues to be, that such treatment would 
        lead to women's equality in the workplace. While the 
        comparative standard has led to positive results for 
        some pregnant workers, for far too many, equality in 
        the workplace remains elusive.\23\
---------------------------------------------------------------------------
    \23\Long Over Due: Exploring the Pregnant Workers Fairness Act 
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the 
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Testimony of Dina Bakst, 
Co-Founder & Co President, A Better Balance: The Work & Family Legal 
Center, at 10) [hereinafter Bakst Testimony].
---------------------------------------------------------------------------

   COURT INTERPRETATIONS OF THE PDA LEFT NUMEROUS GAPS IN PROTECTIONS

    Prior to 2015, the circuit courts were split on how to 
determine which type of workers were ``similar in their ability 
or inability to work'' or would serve as a valid and relevant 
comparator to a pregnant worker for the purpose of securing 
reasonable accommodations under the PDA. In identifying a 
``relevant comparator,'' the majority of circuits focused on 
the source of the injury by comparing the pregnant worker's 
treatment to those employees who had sustained non-ADA-
qualifying, off-the-job injuries.\24\ ``In other words, a 
pregnant worker was only entitled to be treated as well (or as 
poorly) as those injured off the job.''\25\ Only the Sixth 
Circuit interpreted the PDA to mean that if a nonpregnant 
worker with a lifting restriction, for example, was 
accommodated, then a pregnant worker with a similar lifting 
restriction should likewise be accommodated.\26\
---------------------------------------------------------------------------
    \24\Lara Grow, Pregnancy Discrimination in the Wake of Young v. 
UPS, 19 U.PA. J.L. & Soc. Change 133, 144, (2016).
    \25\Id. at 145.
    \26\Id. at 144.
---------------------------------------------------------------------------
    The PDA does not affirmatively require that an employer 
reasonably accommodate a pregnant worker. Ms. Bakst testified 
at the October 22nd Hearing to the legal obstacles encountered 
by pregnant workers leading up to the landmark 2015 decision 
regarding the PDA in Young v. United Parcel Service, Inc. 
(UPS):\27\
---------------------------------------------------------------------------
    \27\Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015).

          [W]e reviewed 200 Pregnancy Discrimination Act cases 
        in the two years leading up to the Young decision and 
        found that of those cases that dealt with an issue of 
        pregnancy accommodation, in nearly two-thirds of cases, 
        courts rejected the plaintiff's PDA claim largely 
        because the pregnant worker could not provide adequate 
        comparators.\28\
---------------------------------------------------------------------------
    \28\Bakst Testimony at 12.
---------------------------------------------------------------------------

  THE SUPREME COURT DECISION IN YOUNG V. UNITED PARCEL SERVICE, INC. 
       ESTABLISHED A NEW STANDARD THAT IS UNWORKABLE IN PRACTICE

    In 2015, the Supreme Court decided Young v. UPS,\29\ which 
set forth a new, controlling standard for a plaintiff to 
establish a disparate treatment claim of discrimination in 
securing a reasonable accommodation under the PDA.
---------------------------------------------------------------------------
    \29\135 S. Ct. 1338 (2015).
---------------------------------------------------------------------------
    In that case, Peggy Young worked as a part-time delivery 
driver for UPS, and her job consisted of picking up and 
delivering packages. When Young became pregnant, her doctor 
advised her to lift no more than twenty pounds. Young, who was 
required by company policy to be able to lift up to 70 pounds, 
requested a light-duty work assignment for the duration of her 
pregnancy. Because UPS's policy was to only grant an 
accommodation to employees who had been injured on the job, 
were eligible for an ADA accommodation, or had lost their 
Department of Transportation (DOT) certification, UPS denied 
her request for a light-duty accommodation.\30\
---------------------------------------------------------------------------
    \30\Lara Grow, Pregnancy Discrimination in the Wake of Young v. 
UPS, 19 U. Pa. J.L. & Soc. Change 133, 147 (2016).
---------------------------------------------------------------------------
    UPS did not consider Young's pregnancy to constitute an on-
the-job injury. Because of the unwillingness of her employer to 
place her on light duty due to her pregnancy-related lifting 
restriction, Young was forced to take an extended leave of 
absence without pay or medical coverage.
    Young sued UPS alleging disparate treatment under the PDA 
and pursued her case to the U.S. Supreme Court.\31\ In a 6-3 
decision, the Supreme Court set out a new test for pregnant 
workers to prove that their employers acted unlawfully under 
the PDA when the employer denied the pregnant worker an 
accommodation.\32\
---------------------------------------------------------------------------
    \31\See Brief of Petitioner at 13, Young v. United Parcel Serv., 
Inc., 135 S. Ct. 1338 (2015) (Young filed suit in a Maryland District 
Court. The court granted summary judgement to UPS. Young appealed to 
the Fourth Circuit. The Fourth Circuit ruled in favor of UPS, holding 
that the company's policy was neutral with respect to pregnancy, as 
pregnant workers were treated the same as other similarly situated 
employees who sustained off-the-job injuries, and thus did not 
constitute unlawful pregnancy discrimination. Young appealed the ruling 
to the Supreme Court.).
    \32\The six to three decision in Young v. United Parcel Serv., 
Inc., 135 S. Ct. 1338 (2015), was rooted in the legal framework set 
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
---------------------------------------------------------------------------
           First, a plaintiff must demonstrate ``that 
        she belongs to the protected class, that she sought 
        accommodation, that the employer did not accommodate 
        her, and that the employer did accommodate others 
        `similar in their ability or inability to work.''\33\
---------------------------------------------------------------------------
    \33\Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354 
(2015).
---------------------------------------------------------------------------
           Second, the employer can rebut this showing 
        by providing ``legitimate, nondiscriminatory reasons 
        for denying her accommodation.''\34\ In making such a 
        showing, the Court made clear that the employer's 
        reason ``cannot consist simply of a claim that it is 
        more expensive or less convenient to add pregnant women 
        to the category of those (``similar in their ability or 
        inability to work'') whom the employer 
        accommodates.''\35\ Essentially, the employer must 
        provide a non-economic justification for its actions.
---------------------------------------------------------------------------
    \34\Id.
    \35\Id.
---------------------------------------------------------------------------
           Third, if the employer successfully 
        demonstrates ``legitimate, nondiscriminatory reasons'' 
        for its actions, the employee must rebut the employer's 
        justification. The Court held that a plaintiff can 
        rebut this argument as pretextual ``by providing 
        sufficient evidence that the employer's policies impose 
        a significant burden on pregnant workers'' and that the 
        employer's ``reasons are not sufficiently strong to 
        justify the burden.''\36\ The Court explained that the 
        employee can demonstrate that the policy imposes a 
        significant burden ``by providing evidence that the 
        employer accommodates a large percentage of nonpregnant 
        workers while failing to accommodate a large percentage 
        of pregnant workers.''\37\ But the Court failed to 
        define ``a large percentage'' and, critically, who of 
        the non-pregnant workers should be considered 
        ``relevant comparators'' when crafting that percentage.
---------------------------------------------------------------------------
    \36\Id.
    \37\Id.
---------------------------------------------------------------------------

   THE TEST UNDER YOUNG DOES NOT ADEQUATELY PROTECT PREGNANT WORKERS

    The Court's holding in Young does not guarantee pregnant 
workers a reasonable accommodation. Under the Young framework, 
pregnant workers face high evidentiary hurdles to prove that 
their employer should provide them with reasonable 
accommodations. The decision still requires pregnant workers 
who bring a failure to accommodate claim under the PDA to 
provide a comparator, but it did little to provide clarity as 
to who constitutes a relevant comparator other than to say the 
standard should not be ``onerous'' on workers.\38\ Forcing 
pregnant workers to identify a comparator creates an oftentimes 
insurmountable hurdle.
---------------------------------------------------------------------------
    \38\Id.
---------------------------------------------------------------------------
    At odds with Justice Breyer's majority opinion in Young 
stating that the comparator standard should not be onerous on 
workers, testimony received by the Committee at the October 
22nd Hearing points out that a requirement to establish a valid 
comparator ``places a unique burden on pregnant workers'' and 
``is also tone deaf to the realities of the American workplace, 
where workers lack clout, bargaining power, and access to their 
co-workers' accommodations requests or personnel files.''\39\ 
Indeed, in an analysis of reasonable accommodation PDA cases 
decided after Young, ``over two-thirds of workers lost their 
pregnancy accommodation cases. Nearly seventy percent of those 
losses can be traced to courts' rejection of women's 
comparators or inability to find comparators.''\40\
---------------------------------------------------------------------------
    \39\Bakst Testimony at 14.
    \40\Id. at 3.
---------------------------------------------------------------------------
    Additionally, some courts have placed categorical bans on 
certain types of comparators.\41\ This was the experience of 
Kimberlie Durham, who testified at the October 22nd Hearing. 
Ms. Durham, an Emergency Management Technician (EMT), requested 
a temporary reassignment after being told by her doctor that 
she should not lift anything over 50 pounds; her job required 
lifting patients and stretchers on a regular basis.\42\ Despite 
her employer's policy of giving ``light duty'' or ``modified 
duty'' assignments to EMTs with lifting restrictions for 
reasons other than pregnancy and the availability of vacant 
positions that Durham could fill that would not require 
lifting, Durham's employer denied her request. Durham's 
employer would only offer light or modified duty to EMTs 
injured on the job, and pregnant workers didn't qualify; 
instead, she would had to have taken an unpaid leave of 
absence.\43\ Durham tried to work with her employer to come to 
a solution, but her employer was unresponsive until she filed 
for unemployment insurance:
---------------------------------------------------------------------------
    \41\Id.
    \42\Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the 
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Written testimony of 
Kimberlie M. Durham, at 4) [Hereinafter Durham Testimony].
    \43\Durham Testimony at 5.

          After a month of silence, I filed for unemployment 
        benefits so that I could at least pay my bills. That's 
        what got a response from Rural/Metro: the company 
        opposed my application, telling the state that I still 
        worked there--even though it had refused to schedule me 
        for any shifts. After that, I had no choice but to file 
        a charge of discrimination with the Equal Employment 
        Opportunity Commission, followed by a lawsuit in 
        federal court in the fall of 2016.\44\
---------------------------------------------------------------------------
    \44\Id.

    In Durham v. Rural/Metro Corporation,\45\ the federal 
district court for the Northern District of Alabama found that 
Durham did not have a PDA claim for the employer's failure to 
accommodate her lifting restriction, even though she could 
point to three other co-workers who were given light or 
modified duty when they too had lifting restrictions. The 
court's reasoning hinged on the fact that those three people 
had on-the-job injuries. In April 2020, an appellate court 
ruled in Ms. Durham's favor after nearly five years in 
litigation.\46\
---------------------------------------------------------------------------
    \45\Durham v. Rural/Metro Corp., No. 4:16-CV-01604-ACA, 2018 U.S. 
Dist. LEXIS 173461 (N.D. Ala. Oct. 9, 2018).
    \46\Durham v. Rural/Metro Corp., 955 F.3d 1279 (11th Cir. 2020).
---------------------------------------------------------------------------
    Pregnant workers must also discredit their employer's 
justification for failing to accommodate them. The Young 
decision requires that the pregnant worker demonstrate that the 
``employer's policies impose a significant burden on pregnant 
workers.''\47\ Ms. Bakst testified at the October 22nd Hearing, 
``the `significant burden' standard the Court laid out in Young 
as part of the pretext analysis in the third step of the test 
[sic] has also proven harmful to women. If workers are even 
able to make it to this step in the analysis, the `significant 
burden' analysis remains an additional hurdle.''\48\
---------------------------------------------------------------------------
    \47\135 S. Ct. 1338, 1354 (2015).
    \48\Bakst Testimony at 16.
---------------------------------------------------------------------------
    Additionally, using the Young framework can take years to 
get a remedy. As Ms. Bakst testified at the October 22nd 
Hearing:

          [U]nder the framework established by the court's 
        majority in Young, a pregnant worker who wants to prove 
        unlawful treatment based on her employer's failure to 
        accommodate her pregnancy must go through a multi-step 
        process that can only be fleshed out through lengthy 
        litigation. Yet most workers we hear from simply want 
        an accommodation to continue working and comply with 
        their doctor's orders. They cannot afford to wait 
        weeks, months, or years for a court decision. Once 
        their baby has started elementary school, it is 
        obviously too late to ensure the pregnancy is healthy 
        at the outset and to prevent a downward spiral of 
        financial woes.\49\
---------------------------------------------------------------------------
    \49\Bakst Testimony at 21.

    Even if a pregnant worker can surmount the evidentiary 
hurdles under the Young framework, her case will likely take 
years, lasting well past the pregnancy and leaving her without 
a remedy during her pregnancy. In the case of Ms. Durham, for 
example, by the time a court finally ruled in her favor, her 
child was four years old. Her remedy was long overdue.

   THE HISTORY OF PREGNANT WORKERS' PROTECTIONS: THE AMERICANS WITH 
                        DISABILITIES ACT OF 1990

    The ADA defines a disability as ``a physical or mental 
impairment that substantially limits one or more major life 
activities of such individual; a record of such an impairment; 
or being regarded as having such an impairment.''\50\ Title I 
of the ADA further provides that, ``[n]o covered entity shall 
discriminate against a qualified individual on the basis of 
disability in regard to job application procedures, the hiring, 
advancement, or discharge of employees, employee compensation, 
job training, and other terms, conditions, and privileges of 
employment.''\51\ Since the passage of the ADA, there has been 
a significant amount of debate over whether pregnancy could 
ever be considered a disability under the definition above.\52\
---------------------------------------------------------------------------
    \50\42 U.S.C. Sec. 12102.
    \51\42 U.S.C. Sec. 12112(a).
    \52\Samuel R. Bagenstos, Subordination, Stigma, and ``Disability,'' 
86 Va. L. Rev. 397, 407 (2000) (citing Mary Crossley, The Disability 
Kaleidoscope, 74 Notre Dame L. Rev. 621, 668-716 (1999)).
---------------------------------------------------------------------------
    Prior to the passage of the ADA Amendments Act of 2008 
(ADAAA),\53\ the EEOC took the position that pregnancy was not 
an ``impairment'' and therefore could not be considered a 
disability even if it was the cause of a substantial 
limitation.\54\ Courts relied on this guidance and held in a 
line of cases that ``absent unusual circumstances, pregnancy 
does not constitute a `physical impairment' under the 
ADA.''\55\ In addition to the EEOC's determination that 
pregnancy was not an ``impairment,'' EEOC regulations in 1999 
listed as factors that should be considered in determining 
whether an individual is substantially limited in a major life 
activity: the nature and severity of the impairment; the 
duration or expected duration of the impairment; and the 
permanent or long term impact, or the expected permanent or 
long term impact of or resulting from the impairment.\56\ Given 
that pregnancy lasts approximately nine months and any 
limitations resulting from pregnancy may last only for a 
portion of that timespan, it is not surprising that few courts 
determined that pregnancy was covered by the ADA prior to the 
ADAAA.
---------------------------------------------------------------------------
    \53\42 U.S.C. Sec. 12102.
    \54\29 U.S.C. Pt. 1630; See also, U.S. Equal Emp't Opportunity 
Comm'n, The Family and Medical Leave Act, the ADA, and Title VII of the 
Civil Rights Act of 1964 (1995), https://www.eeoc.gov/laws/guidance/
family-and-medical-leave-act-ada-and-title-vii-civil-rights-act-1964.
    \55\Villarreal v. J.E. Merit Constructors, 895 F. Supp. 149, 152 
(S.D. Tex. 1995).
    \56\29 C.F.R. Sec. 1630.2.
---------------------------------------------------------------------------

    THE ADA AMENDMENTS ACT OF 2008 PROVIDES LIMITED PROTECTIONS FOR 
                            PREGNANT WORKERS

    Under the ADAAA, pregnancy itself may not be considered a 
disability but pregnant workers may have conditions that could 
qualify them for accommodations under the law. The ADAAA was 
passed in response to a series of cases in which the Supreme 
Court limited who could be considered disabled under the ADA 
and ``[n]arrowed the broad scope of protection intended to be 
afforded by the ADA, thus eliminating protection for many 
individuals whom Congress intended to protect.''\57\
---------------------------------------------------------------------------
    \57\42 U.S.C. Sec. 12101 (see note on Findings and Purposes of Pub. 
L. 110-325).
---------------------------------------------------------------------------
    In guidance related to pregnancy discrimination adopted 
after the ADAAA, the EEOC advised that, ``[a]lthough pregnancy 
itself is not a disability, pregnant workers may have 
impairments related to their pregnancies that qualify as 
disabilities under the ADA . . . A number of pregnancy-related 
impairments are likely to be disabilities, even though they are 
temporary, such as pregnancy-related carpal tunnel syndrome, 
gestational diabetes, pregnancy-related sciatica, and 
preeclampsia.''\58\
---------------------------------------------------------------------------
    \58\Fact Sheet for Small Businesses: Pregnancy Discrimination, U.S. 
Equal Emp't Opportunity Comm'n, https://www.eeoc.gov/eeoc/publications/
pregnancy_factsheet.cfm (last visited Mar. 18, 2020).
---------------------------------------------------------------------------
    The ADAAA also expanded the definition of ``major life 
activities'' to include ``major bodily functions.''\59\ 
Additionally, ``[u]nder the ADAAA and its implementing 
regulations, an impairment is not categorically excluded from 
being a disability simply because it is temporary.''\60\ 
Therefore, a pregnant worker may be a qualified individual with 
a disability for purposes of the ADA if her pregnancy impairs a 
major bodily function (such as functions of the immune system, 
normal cell growth, digestive, bowel, bladder, neurological, 
brain, respiratory, circulatory, endocrine, and reproductive 
functions) or her ability to perform a major life activity 
(such as caring for oneself, performing manual tasks, sleeping, 
walking, standing, lifting, bending, speaking, learning, 
reading, concentrating, thinking, communicating, and working).
---------------------------------------------------------------------------
    \59\42 U.S.C. Sec. 12102.
    \60\Summers v. Altarum Inst., Corp., 740 F.3d 325, 333 (4th Cir. 
2014).
---------------------------------------------------------------------------
    Although the ADAAA's definition of disability is almost 
broad enough to cover any limitation related to pregnancy, 
courts have been reticent to apply the broad definition of 
disability urged by the ADAAA.\61\ While the EEOC has been 
careful to adhere to the ADAAA's expansive view of disability 
in the context of pregnancy, a review of the caselaw suggests 
that courts have been more aggressive in limiting the 
application of the ADAAA to pregnant workers. ``In order to 
make out a prima facie case of disability discrimination under 
the ADA, [the plaintiff] must establish that she (1) has a 
`disability,' (2) is a `qualified individual,' and (3) has 
suffered an adverse employment action because of that 
disability.''\62\ In order to establish the prima facie case 
for discrimination on the basis of an employer's failure to 
make a reasonable accommodation, a plaintiff must show that: 
``(1) plaintiff is a person with a disability under the meaning 
of the ADA; (2) an employer covered by the statute had notice 
of [her] disability; (3) with reasonable accommodation, 
plaintiff could perform the essential functions of the job at 
issue; and (4) the employer has refused to make such 
accommodations.''\63\
---------------------------------------------------------------------------
    \61\Nicole B. Porter, Explaining ``Not Disabled'' Cases Ten Years 
After the ADAAA: A Story of Ignorance, Incompetence, and Possibly 
Animus, 26 Geo. J. Poverty Law & Pol'y 383, 392 (2019). Of nearly 1,000 
ADA cases decided between 2014 and 2018, the federal courts erroneously 
ruled that workers were not individuals with disabilities entitled to 
the protections of the ADA in 210 of them.
    \62\Turner v. Hershey Chocolate, 440 F.3d 604, 611 (3d Cir. 2006).
    \63\Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 
577 (S.D.N.Y. 2008).
---------------------------------------------------------------------------
    To determine whether a plaintiff's condition meets the 
legal definition of ``disability,'' courts must assess whether 
the worker has ``a physical or mental impairment that 
substantially limits one or more major life activities of such 
individual.''\64\ If the court determines that the plaintiff 
did not have an ``impairment,'' the individual will not reach 
the second part of the inquiry to determine whether the 
individual is substantially limited in one or more major life 
activities. Numerous courts applying the ADAAA have continued 
to hold that, ``pregnancy, absent unusual circumstances, is not 
considered a disability under the ADA.''\65\ In response to 
questions for the record for the October 22nd Hearing submitted 
by Representative Suzanne Bonamici (D-OR-1), Chair of the 
Committee's Subcommittee on Civil Rights and Human Services, 
Ms. Bakst stated:
---------------------------------------------------------------------------
    \64\42 U.S.C. Sec. 12102(1)(a).
    \65\See Tomiwa v. PharMEDium Servs., LLC, No. 4:16-CV-3229, 2018 
U.S. Dist. LEXIS 66772, at *13 (S.D. Tex. Apr. 20, 2018) (``Absent 
unusual circumstances, pregnancy and related medical conditions do not 
constitute a physical impairment.''); Mayorga v. Alorica, Inc., No. 12-
21578-CIV-HUCK/BANDSTRA, 2012 U.S. Dist. LEXIS 3043021, at *32 (S.D. 
Fla. July 25, 2012) (citing, inter alia, Selkow v. 7-Eleven, Inc., No. 
11-CV-456-T-33EAJ, 2012 U.S. Dist. LEXIS 79265, at *37 (M.D. Fla. June 
7, 2012) (``Absent unusual circumstances, pregnancy is not considered a 
disability--temporary or otherwise--under the ADA or FCRA.''); Jeudy v. 
Holder, No. 10-22873-CIV-HUCK/BANDSTRA, 2011 U.S. Dist. LEXIS 128746, 
at *13 (S.D. Fla. Nov. 7, 2011) (noting ``that pregnancy is not 
normally considered a disability'')).

          Disturbingly, courts are finding that even when 
        pregnant women have quite serious complications, those 
        complications do not merit ADAAA protections . . . 
        Courts also explicitly distinguish `pregnancy-related 
        complications' from an ADAAA qualifying `disability,' 
        thus acknowledging that even those pregnant women with 
        complications may have no recourse under the ADAAA.\66\
---------------------------------------------------------------------------
    \66\Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694) Before the Subcomm. on Civil Rights Human. & Servs. of the 
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Questions for the record 
submitted by Dina Bakst, Co-Founder & Co-President, A Better Balance, 
at 7-10).

    In fact, one court stated, ``only in extremely rare cases 
have courts found that conditions that arise out of pregnancy 
qualify as a disability.''\67\ Another court acknowledged, 
``[a]lthough the 2008 amendments broadened the ADA's definition 
of disability, these changes only have had a modest impact when 
applied to pregnancy-related conditions.''\68\
---------------------------------------------------------------------------
    \67\Sam-Sekur v. Whitmore Grp., Ltd., No. 11-CV-4938 (JFB) (GRB), 
2012 U.S. Dist. LEXIS 83586, at *24 (E.D.N.Y. June 15, 2012); see also 
Wanamaker v. Westport Board of Education, 899 F.Supp.2d 193, 211 (D. 
Conn. 2012) (Citing to Sam-Sekur and the EEOC guidance that short-term 
impairments must be ``sufficiently severe'' for the proposition that 
pregnancy-related conditions are only ADAAA-qualifying in rare cases. 
Additionally, finding plaintiff teacher could not pursue her ADA claim 
because she ``failed to allege that her transverse myelitis limit[ed] a 
major life activity and that any impairment as a result of her 
transverse myelitis was not for a short period of time'' and ``no other 
facts indicating that [her] condition was chronic.'' Id. at 212.).
    \68\Scheidt v. Floor Covering Assocs., Inc., No. 16-CV-5999, 2018 
U.S. Dist. LEXIS 167480, at *23-24 (N.D. Ill. Sept. 28, 2018) (holding 
allergies, including rashes and breathing problems, do not constitute a 
disability that impairs a major life activity).
---------------------------------------------------------------------------
    There are many cases where courts have found that even 
severe complications related to pregnancy do not constitute 
disabilities triggering ADAA protection. In Adireje v. ResCare, 
Inc.,\69\ the court dismissed a health care worker's ADAAA 
claim even though she experienced unbearable cramping, 
bleeding, and a miscarriage. The court held, ``even if Adireje 
had a pregnancy-related complication . . . [she] was not 
disabled for purposes of the ADA because there is no evidence 
that her cramps limited her ability to work or other major life 
activities.''\70\
---------------------------------------------------------------------------
    \69\Adireje v. ResCare, Inc., No. 1:18-CV-01429-TWP-DLP, 2019 U.S. 
Dist. LEXIS 170125 (S.D. Ind. Sept. 30, 2019).
    \70\Id. at 24.
---------------------------------------------------------------------------
    In addition to the general reticence to equate pregnancy 
and disability, courts have sometimes pointed to the short 
duration of pregnancy complications as a reason to reject an 
ADAAA claim. The EEOC's guidance on the ADAAA states that, 
``[i]mpairments that last only for a short period of time are 
typically not covered, although they may be covered if 
sufficiently severe.''\71\ Courts continue to read a durational 
requirement into the ADAAA.\72\ For example, one court held 
that ``temporary, non-chronic impairments of short-duration, 
with little or no long term or permanent impact, are usually 
not disabilities.''\73\ Regardless of the merits of the 
individual cases, the reality is that, as one court stated, 
``only in extremely rare cases have courts found that 
conditions that arise out of pregnancy qualify as a 
disability.''\74\ As Ms. Bakst noted at the October 22nd 
Hearing, ``courts consistently make clear that pregnancy itself 
is not a disability and does not merit reasonable 
accommodations under the ADAAA . . . courts have been unwilling 
to extend ADAAA coverage for pregnancy-related disabilities, 
even in cases where workers have presented serious pregnancy 
complications.''\75\
---------------------------------------------------------------------------
    \71\See 29 C.F.R. Sec. 1630 (Appendix to Part 1630, Interpretive 
Guidance on Title I of the Americans with Disabilities Amendments Act).
    \72\Love v. First Transit, Inc., No. 16-CV-2208, 2017 U.S. Dist. 
LEXIS 37716, at *16 (N.D. Ill. Mar. 16, 2017). See also Lang v. Wal-
Mart Stores East, L.P., No. 13-CV-349-LM, 2015 U.S. Dist. LEXIS 44185, 
at *4 (D.N.H. Apr. 3, 2015) (``[P]regnancy is not an actionable 
disability, unless it is accompanied by a pregnancy-related 
complication.''); Annobil v. Worcester Skilled Care Ctr., Inc., No. 11-
40131-TSH, 2014 U.S. Dist. LEXIS 126643, at *36 (D. Mass. Sept. 10, 
2014) (granting summary judgment for defendant where plaintiff 
``provides no legal argument as to whether such symptoms [including 
headaches, nausea and vomiting] differ from normal symptoms of 
pregnancy and how these complications are disabling''); Mayorga v. 
Alorica, Inc., No. 12-21578-CIV-HUCK/BANDSTRA, 2012 U.S. Dist. LEXIS 
103766, at *5 (S.D. Fla. July 25, 2012).
    \73\Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 211 
(D. Conn. 2012).
    \74\Sam-Sekur v. Whitmore Grp., Ltd., No. 11-CV-4938 (JFB) (GRB), 
2012 U.S. Dist. LEXIS 83586, at *24 (E.D.N.Y. June 15, 2012); see also 
Wanamaker v. Westport Board of Education, 899 F. Supp. 2d 193, 211 (D. 
Conn. 2012) (Citing to Sam-Sekur and the EEOC guidance that short-term 
impairments must be ``sufficiently severe'' for the proposition that 
pregnancy-related conditions are only ADAAA-qualifying in rare cases. 
Additionally, finding plaintiff teacher could not survive her ADA claim 
because she ``failed to allege that her transverse myelitis limit[ed] a 
major life activity and that any impairment as a result of her 
transverse myelitis was not for a short period of time'' and ``no other 
facts indicating that [her] condition was chronic.'' Id. at 212.).
    \75\Bakst Testimony at 17.
---------------------------------------------------------------------------
    Given the case law, it is abundantly clear that the ADA, as 
amended by the ADAAA, does not provide a sufficient avenue for 
receiving reasonable accommodations that would allow a worker 
to continue to earn a living while maintaining a healthy 
pregnancy.\76\
---------------------------------------------------------------------------
    \76\Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694) Before the Subcomm. on Civil Rights Human. & Servs. of the 
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Questions for the record 
submitted by Dina Bakst, Co-Founder & Co-President, A Better Balance, 
at 7-10).
---------------------------------------------------------------------------

THE PREGNANT WORKERS FAIRNESS ACT PROMOTES PREGNANT WORKERS' HEALTH AND 
                           ECONOMIC WELLBEING

    Women comprise nearly half the U.S. workforce.\77\ Women 
are the primary, sole, or co-breadwinners in nearly 64 percent 
of families, earning at least half of their total household 
income.\78\ Not surprisingly, women are increasingly working 
later into their pregnancies. According to the U.S. Census 
Bureau, between 2006 and 2008, 88 percent of first-time mothers 
worked during their last trimester and 82 percent worked into 
their last month of pregnancy.\79\ When pregnant workers are 
not provided reasonable accommodations on the job, they are 
oftentimes forced to choose between economic security and their 
health or the health of their babies.
---------------------------------------------------------------------------
    \77\Catalyst, Quick Take: Women in the Workforce--United States 
(June 5, 2019), https://www.catalyst.org/research/women-in-the-
workforce-united-states/.
    \78\Sarah Jane Glynn, Center for American Progress, Breadwinning 
Mothers Continue to be the U.S. Norm 5 (2019), https://
cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf.
    \79\Lynda Laughlin, U.S. Bureau of the Census, Maternity Leave and 
Employment Patterns of First-Time Mothers: 1961-2008 6 (2011), https://
www.census.gov/library/publications/2011/demo/p70-128.html.
---------------------------------------------------------------------------

    REASONABLE ACCOMMODATIONS FOR PREGNANT WORKERS PROMOTE HEALTHY 
                              PREGNANCIES

    According to the American College of Obstetricians and 
Gynecologists (ACOG), providing reasonable accommodations to 
pregnant workers is critical for the health of women and their 
children.\80\ Depending on the circumstances of the pregnancy, 
physicians recommend that pregnant women avoid or limit certain 
risks in the workplace, including exposure to certain 
compounds, heavy lifting, overnight work, extended hours, or 
prolonged periods of sitting or standing.\81\ Some studies have 
shown increased risk of miscarriage, preterm birth, low birth 
weight, urinary tract infections, and fainting as a result of 
these exposures.\82\
---------------------------------------------------------------------------
    \80\The American College of Obstetricians and Gynecologists, 
Employment Considerations During Pregnancy and the Postpartum Period 
e117 (2018), https://www.acog.org/-/media/project/acog/acogorg/
clinical/files/committee-opinion/articles/2018/04/employment-
considerations-during-pregnancy-and-the-postpartum-period.pdf.
    \81\Id. at, e120.
    \82\Dina Bakst et al., A Better Balance, Long Overdue: It's Time 
for the Federal Pregnant Workers Fairness Act 23 (2019), https://
www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf.
---------------------------------------------------------------------------
    According to ACOG, these health risks can be addressed with 
simple accommodations such as: seating; water; closer parking; 
flexible hours; appropriately sized uniforms and safety 
apparel; additional breaktime to use the bathroom, eat, and 
rest; excusing the worker from strenuous activities; and 
excusing the worker from activities that involve exposure to 
compounds not safe for pregnancy.\83\ A 2014 survey found that 
the most common temporary pregnancy-related accommodation 
sought (71 percent of participants) was more frequent breaks 
(e.g., bathroom breaks).\84\
---------------------------------------------------------------------------
    \83\Id.
    \84\Nat'l Partnership for Women and Families, Listening to Mothers: 
The Experiences of Expecting and New Mothers in the Workplace 2 (2014), 
https://www.nationalpartnership.org/our-work/resources/economic-
justice/pregnancy-discrimination/listening-to-mothers-experiences-of-
expecting-and-new-mothers.pdf.
---------------------------------------------------------------------------
    A 2014 survey issued by the National Partnership for Women 
and Families estimated that one quarter million pregnant 
workers are denied their requests for reasonable workplace 
accommodations nationally each year.\85\ Additionally, women of 
color are especially impacted as they are more likely to work 
in low wage, physically demanding jobs. In written testimony 
submitted for the record for the October 22nd Hearing, Emily 
Martin of the National Women's Law Center stated:
---------------------------------------------------------------------------
    \85\Id. at 3.

          [O]ver 40 percent of full-time workers in low-wage 
        jobs report that their employers do not permit them to 
        decide when to take breaks, and roughly half report 
        having very little or no control over the scheduling of 
        hours. This culture of inflexibility can lead to 
        reflexive denials when workers in low-wage jobs seek 
        pregnancy-related accommodations, which is of 
        particular concern given that more than one in five 
        (20.9%) pregnant workers is employed in a low-wage job. 
        Moreover, pregnant Black women and Latinas are 
        disproportionately represented in low-wage jobs. Nearly 
        one in three Black and Latina pregnant workers hold 
        low-wage jobs (30.0 percent and 31.3 percent, 
        respectively). This means a lack of clear legal rights 
        to pregnancy accommodations likely hits Black women and 
        Latinas particularly hard.\86\
---------------------------------------------------------------------------
    \86\Long Overdue: Exploring the Pregnant Workers Fairness Act (H.R. 
2694). Before the Subcomm. on Civil Rights & Human Servs. of the H. 
Comm. on Educ. & Labor, 116th Cong. (2019) (Statement of Emily Martin, 
Vice President for Education and Workplace Justice, National Women's 
Law Center, at 3).

    When simple accommodations like those suggested by ACOG are 
not provided, the impacts on a worker's health and pregnancy 
can be deadly. At the October 22nd Hearing, Representative 
Steve Cohen (D-TN-9) highlighted a constituent's experience at 
---------------------------------------------------------------------------
a warehouse in Memphis, TN:

          Memphis has a plant that XPO ran. It was the subject 
        of a major story in the New York Times concerning work 
        conditions there and particularly pregnant women . . . 
        One of the former employees, Ms. Tasha Morelle brought 
        her doctor's note instructing that she do no heavy 
        lifting. The supervisor did not accommodate the 
        doctor's note, nor reassign her to a different area. 
        Ms. Morelle continued doing her assigned work of 
        lifting boxes weighing almost 50 pounds. As a result, 
        she suffered a miscarriage.\87\
---------------------------------------------------------------------------
    \87\House Committee on Educ. & Labor, Long Over Due: Exploring the 
Pregnant Workers' Fairness Act, YouTube (Oct. 22, 2019), https://
www.youtube.com/watch?time_continue=2&v=SI3WK-7KVNE&feature=emb_logo 
(See statement of Rep. Steve Cohen, at 1:52:15).

    At the October 22nd Hearing, Representative Jahana Hayes 
(D-CT-5), a member of the Committee, described her experience 
when reasonable accommodations were not provided to her at 
---------------------------------------------------------------------------
work:

          I was a working mom, an educator who had an 
        uneventful pregnancy. I was not older [sic] I did not 
        have any complications and what I thought was a 
        reasonable accommodation [became] a tremendous 
        inconvenience. I was a classroom teacher and all I 
        needed was to go to the bathroom which I thought was a 
        reasonable request to ask but you can imagine in a high 
        school with more than 1,000 kids, to get coverage, I 
        was often told `well you just had your break' or `we 
        only have two more periods before it's time for lunch.' 
        And thinking that I have to go right now was just 
        something that I just dealt with which led to further 
        complications with bladder issues so what started out 
        as an uneventful pregnancy ended up having 
        complications as a result of this minor accommodation 
        not being met.\88\
---------------------------------------------------------------------------
    \88\House Committee on Educ. & Labor, Long Over Due: Exploring the 
Pregnant Workers' Fairness Act, YouTube (Oct. 22, 2019), https://
www.youtube.com/watch?time_continue=2&v=SI3WK-7KVNE&feature=emb_logo 
(See statement of Rep. Jahana Hayes, at 1:08:43).

    With the COVID-19 health pandemic ravaging the country, 
pregnant workers are in even greater need of reasonable 
accommodations. According to the Centers for Disease Control 
and Prevention (CDC), ``pregnant people might be at an 
increased risk for severe illness from COVID-19.''\89\ Pregnant 
women who contract COVID-19 ``are more likely to be 
hospitalized and are at increased risk for intensive care unit 
(ICU) admission and receipt of mechanical ventilation than 
nonpregnant women.''\90\ Women, and in particular women of 
color, make up a disproportionate share of the essential 
workforce.\91\ Pregnant workers on the frontlines could be at 
increased risk of contracting COVID-19 and complicating their 
pregnancies. One study of pregnant women in Philadelphia found 
that Black and Hispanic women are ``five times more likely to 
be exposed to coronavirus.''\92\ Guaranteed reasonable 
accommodations could be pivotal in pregnant workers maintaining 
healthy pregnancies during COVID-19.
---------------------------------------------------------------------------
    \89\Pregnancy & Breastfeeding, Ctr. For Disease Control and 
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/pregnancy-breastfeeding.html (last visited Aug. 31, 2020).
    \90\Pregnancy Data, Ctr. For Disease Control and Prevention, 
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/special-
populations/pregnancy-data-on-covid-19.html (last visited August 31, 
2020).
    \91\See Hye Jin Rho, Ctr. for Econ. And Policy Research, A Basic 
Demographic Profile of Workers in Frontline Industries 3 (2020), 
https://cepr.net/a-basic-demographic-profile-of-workers-in-frontline-
industries/. See also Jocelyn Frye, Ctr. For American Progress, On the 
Frontlines at Work and at Home: The Disproportionate Economic Effects 
of the Coronavirus Pandemic on Women of Color 8 (2020), https://
www.americanprogress.org/issues/women/reports/2020/04/23/483846/
frontlines-work-home/
    \92\News Release, Penn Medicine News, Pregnant Black and Hispanic 
Women Five Times More Likely to Be Exposed to Coronavirus (July 29, 
2020), https://www.pennmedicine.org/news/news-releases/2020/july/
pregnant-black-and-hispanic-women-five-times-more-likely-to-be-exposed-
to-coronavirus.
---------------------------------------------------------------------------

   REASONABLE ACCOMMODATIONS FOR PREGNANT WORKERS PROMOTE FAMILIES' 
                           ECONOMIC STABILITY

    Families increasingly rely on pregnant workers' income. 
Seventy-five percent of women will be pregnant and employed at 
some point in their careers.\93\ In 2017, 41 percent of mothers 
were the sole or primary breadwinners in their households, and 
one-quarter of mothers were co-breadwinners, bringing home 25 
percent to 49 percent of earnings for their families.\94\ 
Ensuring pregnant workers have reasonable accommodations helps 
ensure that pregnant workers remain healthy and earn an income 
when they need it the most. Pregnant mothers want, and 
oftentimes need, to keep working during their pregnancies, both 
for income and to retain health insurance.\95\ According to an 
analysis from the non-profit organization A Better Balance:
---------------------------------------------------------------------------
    \93\Dina Bakst et al., A Better Balance, Long Overdue: It's Time 
for the Federal Pregnant Workers Fairness Act 23 (2019), https://
www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf.
    \94\Sarah Jane Glynn, Center for American Progress, Breadwinning 
Mothers Continue to be the U.S. Norm 5 (2019), https://
cdn.americanprogress.org/content/uploads/2019/05/12070012/
Breadwinners2019-report1.pdf.
    \95\A Better Balance, Pregnant and Jobless: Thirty-Seven Years 
after Pregnancy Discrimination Act, Pregnant Women Still Choose Between 
a Paycheck and a Healthy Pregnancy 11 (2015), https://
www.abetterbalance.org/wp-content/uploads/2017/01/
PregnantandJobless.pdf.

          Many pregnant workers are forced to use up allotted 
        leave time early, sometimes even before they give 
        birth, leaving no time remaining for recovery from 
        childbirth. Others are fired when they request 
        accommodations or exhaust their leaves of absence, and 
        then face a particularly difficult time re-entering the 
        workforce as new mothers. Some women lose their health 
        benefits when they are fired or forced onto unpaid 
        leave and then must switch providers and/or delay 
        medical care while securing replacement health 
        insurance. For women who lose their health insurance 
        shortly before going into labor, they could be looking 
        at staggering healthcare costs for childbirth, which 
        averages $30,000 for a vaginal delivery and $50,000 for 
        a C-section in the U.S.\96\
---------------------------------------------------------------------------
    \96\Dina Bakst et al., A Better Balance, Long Overdue: It's Time 
for the Federal Pregnant Workers Fairness Act 23 (2019), https://
www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf.

    Pregnant workers who are pushed out of the workplace might 
feel the effects for decades, losing out on everything from 
401(k) or other retirement contributions to short-term 
disability benefits, seniority, pensions, social security 
contributions, life insurance, and more.\97\
---------------------------------------------------------------------------
    \97\Pregnant and Jobless, supra note 96, at 11.
---------------------------------------------------------------------------
    Guaranteeing reasonable accommodations for pregnant workers 
also promotes women's labor force participation. In a letter to 
Congress, eighteen leading members of the employer community 
encouraged Congress to pass the PWFA because ``[w]omen's labor 
force participation is critical to the strength of our 
companies the growth of our economy and the financial security 
of most modern families''\98\ As Ms. Wilbur testified at the 
October 22nd Hearing:
---------------------------------------------------------------------------
    \98\Letter from Adobe et al., to Members of Congress (June 17, 
2020) https://www.nationalpartnership.org/our-work/resources/economic-
justice/coalition/an-open-letter-in-
support-of-PWFA-from-private-sector-employers.pdf.

          The Act would help boost our country's workforce 
        participation rate among women. In states like 
        Kentucky, which ranks 44th in the nation for female 
        labor force participation, we know one contributor to 
        this abysmal statistic is a mother or soon-to-be mother 
        who is forced out or quits a job due to a lack of 
        reasonable workplace accommodations. We can help 
        prevent such situations by clearly laying the 
        groundwork for an informed dialogue between employers 
        and employees on how these employees can continue 
        working safely and productively throughout the course 
        of a pregnancy and afterwards.\99\
---------------------------------------------------------------------------
    \99\Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the 
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Written testimony of 
Iris Wilbur, Vice President of Government Affairs & Public Policy, 
Greater Louisville Inc.--The Metro Chamber of Commerce, at 2).
---------------------------------------------------------------------------

  THE PREGNANT WORKERS FAIRNESS ACT ENSURES WORKERS HAVE THE RIGHT TO 
                       REASONABLE ACCOMMODATIONS

    The PWFA establishes a pregnant worker's right to 
reasonable accommodations and eliminates the evidentiary 
hurdles to defend that right. It applies to private sector 
employers with 15 or more employees as well as public sector 
employers. Covered employers must make reasonable 
accommodations and cannot deny employment opportunities for job 
applicants or employees affected by a ``known limitation'' 
related to pregnancy, childbirth, or a related medical 
condition.\100\ Under the PWFA, a ``known limitation'' means a 
physical or mental condition related to, affected by, or 
arising out of pregnancy, childbirth, or related medical 
conditions that the pregnant worker or her representative has 
communicated to the employer. Similar to the ADA, employers are 
not required to make an accommodation if it imposes an undue 
hardship on an employer's business.
---------------------------------------------------------------------------
    \100\National Partnership For Women And Families, Pregnant Workers 
Fairness Act Section by Section 1 (2019), http://
www.nationalpartnership.org/our-work/resources/workplace/
pregnancy-discrimination/pregnant-workers-fairness-act-section-by-
section.pdf.
---------------------------------------------------------------------------
    For private sector employees and job applicants, the PWFA 
is written to mirror the enforcement powers, procedures, and 
remedies established under the Civil Rights Act of 1964.\101\ A 
court may award lost pay, interest, compensatory damages, 
punitive damages, costs, reasonable attorneys' fees, and 
experts' fees, to the extent that such relief is available 
under the law. For public sector employees and job applicants, 
the PWFA provides mirrors the powers, remedies, and procedures 
under the Congressional Accountability Act,\102\ Title V of the 
United States Code,\103\ Section 717 of the Civil Rights Act of 
1964,\104\ and the Government Employee Rights Act of 1991.\105\ 
For both the private and public sectors, if the employer 
engaged in good faith negotiations with the employee during the 
interactive process but the parties cannot agree to a 
reasonable accommodation, the employer is not liable for 
damages.
---------------------------------------------------------------------------
    \101\42 U.S.C. Sec. 2000e.
    \102\2 U.S.C. Sec. 1301.
    \103\3 U.S.C. Sec. 411.
    \104\42 U.S.C. Sec. 2000e-16.
    \105\42 U.S.C. Sec. 2000e-16b.
---------------------------------------------------------------------------

    THE PREGNANT WORKERS FAIRNESS ACT MIRRORS KEY PROVISIONS OF THE 
                AMERICANS WITH DISABILITIES ACT OF 1990

    The PWFA requires private sector employers with 15 or more 
employees and public sector employers to make ``reasonable 
accommodations'' to the ``known limitations'' related to 
pregnancy, childbirth, or related medical conditions of a 
``qualified'' employee unless doing so would be an ``undue 
hardship'' for the employer. Additionally, the PWFA uses ADA 
terminology to require the use of the ``interactive process'' 
for establishing reasonable accommodations.

 THE PREGNANT WORKERS FAIRNESS ACT INCLUDES A WIDE ARRAY OF PREGNANCY-
                           RELATED CONDITIONS

    Throughout the bill's text, the PWFA ensures that workers 
have access to reasonable accommodations for conditions 
connected with a pregnancy, not just a pregnancy itself. 
Section 2 guarantees workers reasonable accommodations for the 
``known limitations related to the pregnancy, childbirth, or 
related medical conditions of a qualified employee.'' The bill 
further defines ``known limitations'' to mean a physical or 
mental condition related to, affected by, or arising out of 
pregnancy, childbirth, or related medical conditions that the 
employee has communicated to the employer, whether or not such 
limitation meets the definition of disability outlined in the 
ADA. The definition of ``known limitation'' allows the worker 
to communicate her need for a reasonable accommodation. 
However, this provision is broad and recognizes that there may 
be times when a worker's representative may communicate this 
request on her behalf. Importantly, PWFA does not import the 
ADA's definition of disability, but rather requires employers 
to make accommodations to the ``known limitations'' related to 
pregnancy, childbirth, or related medical conditions.

  ONLY ``QUALIFIED EMPLOYEES'' ARE ELIGIBLE FOR THE PREGNANT WORKERS 
                FAIRNESS ACT'S REASONABLE ACCOMMODATIONS

    The PWFA limits which employees are eligible for reasonable 
accommodations to those employees and applicants who are 
qualified. The definition of qualified under PWFA is very 
similar to the definition used in the ADA, which requires that 
the applicant or employee must ``satisfy job requirements for 
educational background, employment experience, skills, 
licenses, and any other qualification standards that are job 
related and be able to perform those tasks that are essential 
to the job (``essential functions''), with or without 
reasonable accommodation.''\106\
---------------------------------------------------------------------------
    \106\The ADA: Your Responsibilities as an Employer, U.S. Equal 
Emp't Opportunity Comm'n (Jan. 15, 1997) https://www.eeoc.gov/facts/
ada17.html#: :text=Essential%20functions%20are%
20the%20basic,tasks%20are%20essential%20to%20performance.
---------------------------------------------------------------------------
    The PWFA defines a qualified employee as ``an employee or 
applicant who, with or without reasonable accommodations, can 
perform the essential functions of the employment 
position.''\107\ PWFA's ``qualified individual'' definition 
deviates from the ADA's by providing the following caveat: 
``[E]xcept that an employee or applicant shall be considered 
qualified if--(A) any inability to perform an essential 
function is for a temporary period; (B) the essential function 
could be performed in the near future; and (C) the inability to 
perform the essential function can be reasonably 
accommodated.''\108\
---------------------------------------------------------------------------
    \107\H.R. 2694, 116th Cong. Sec. 5(6) (2019) (as reported).
    \108\Id.
---------------------------------------------------------------------------
    This language was inserted into the PWFA to make clear that 
the temporary inability to perform essential functions due to 
pregnancy does not render a worker ``unqualified.'' Just as 
there is precedent under the ADA for the temporary excusal of 
essential functions, there may be a need for a pregnant worker 
to temporarily perform other tasks before fully returning to 
her position. Under the ADA, courts have found workers are 
entitled to reasonable accommodations if they only need a 
finite leave of absence or a transfer that would allow them to 
perform the essential functions of the job ``in the near 
future.''\109\
---------------------------------------------------------------------------
    \109\See, e.g. Robert v. Bd. of Cty. Comm'rs of Brown Cty., Kans., 
691 F.3d 1211, 1218 (10th Cir. 2012).
---------------------------------------------------------------------------
    Because the ADA's ``essential functions'' language is 
mirrored in the PWFA, current understanding of ``essential 
functions'' under the ADA is instructive to the PWFA. According 
to the EEOC, factors to consider in determining if a function 
is ``essential'' include:
           whether the reason the position exists is to 
        perform that function;
           the number of other employees available to 
        perform the function or among whom the performance of 
        the function can be distributed; and
           the degree of expertise or skill required to 
        perform the function.\110\
---------------------------------------------------------------------------
    \110\The ADA: Your Responsibilities as an Employer, U.S. Equal 
Emp't Opportunity Comm'n (Jan. 15, 1997) https://www.eeoc.gov/facts/
ada17.html#: :text=Essential%20functions%20
are%20the%20basic,tasks%20are%20essential%20to%20performance.
---------------------------------------------------------------------------
    A written job description prepared before advertising or 
interviewing for a job will be considered as evidence of 
``essential functions,'' but it is not the only evidence 
considered. Other kinds of evidence that the EEOC will consider 
include:
           the actual work experience of present or 
        past employees in the job;
           the time spent performing a function;
           the consequences of not requiring that an 
        employee perform a function; and
           the terms of a collective bargaining 
        agreement.\111\
---------------------------------------------------------------------------
    \111\Id.
---------------------------------------------------------------------------

  THE PREGNANT WORKERS FAIRNESS ACT USES THE REASONABLE ACCOMMODATION 
      FRAMEWORK WITHIN THE AMERICANS WITH DISABILITIES ACT OF 1990

    The PWFA uses the term ``reasonable accommodation,'' as 
defined under the ADA, throughout the bill's text. Under the 
ADA, a ``reasonable accommodation'' means:
          (i) Modifications or adjustments to a job application 
        process that enable a qualified applicant with a 
        disability to be considered for the position such 
        qualified applicant desires; or
          (ii) Modifications or adjustments to the work 
        environment, or to the manner or circumstances under 
        which the position held or desired is customarily 
        performed, that enable an individual with a disability 
        who is qualified to perform the essential functions of 
        that position; or
          (iii) Modifications or adjustments that enable a 
        covered entity's employee with a disability to enjoy 
        equal benefits and privileges of employment as are 
        enjoyed by its other similarly situated employees 
        without disabilities.\112\
---------------------------------------------------------------------------
    \112\29 C.F.R. Sec. 1630.2(o).
---------------------------------------------------------------------------
    Job restructuring, part-time or modified work schedules, 
reassignment to a vacant position, acquisition or modification 
of equipment or devices, appropriate adjustment or 
modifications of examinations, training materials or policies, 
and the provision of qualified readers or interpreters are all 
included in a non-exhaustive list of possible ADA 
accommodations.\113\
---------------------------------------------------------------------------
    \113\42 U.S.C. Sec. 12111.
---------------------------------------------------------------------------
    The Job Accommodation Network (JAN), an ADA technical 
assistance center funded by the U.S. Department of Labor's 
Office of Disability Employment Policy (ODEP), lists numerous 
potential accommodations related to disabilities that might 
arise during pregnancy, including more than 20 suggested 
accommodations just for a lifting restriction related to 
pregnancy; the PWFA would include all of these accommodations 
as possibilities as well. Other possible accommodations that 
would be available under the PWFA include scheduling changes 
due to morning sickness or reassignment to a vacant position. 
Under the ADA, ``[a] qualified individual with a disability may 
work part-time in his/her current position, or occasionally 
take time off, as a reasonable accommodation if it would not 
impose an undue hardship on the employer.''\114\ Similarly, 
leave is one possible accommodation under the PWFA, including 
time off to recover from delivery. However, Section 2(4) of the 
PWFA makes clear that an employer ``cannot require a qualified 
employee to take leave, whether paid or unpaid, if another 
reasonable accommodation can be provided.''\115\
---------------------------------------------------------------------------
    \114\U.S. Equal Emp't Opportunity Comm'n, The Family and Medical 
Leave Act, the ADA, and Title VII of the Civil Rights Act of 1964 
(1995), https://www.eeoc.gov/laws/guidance/family-and-medical-leave-
act-ada-and-title-vii-civil-rights-act-1964.
    \115\H.R. 2694, 116th Cong. Sec. 2(4) (2019) (as reported).
---------------------------------------------------------------------------

 EMPLOYERS ARE NOT REQUIRED TO PROVIDE REASONABLE ACCOMMODATIONS THAT 
                        CREATE AN UNDUE HARDSHIP

    As with the ADA, Section 2 of the PWFA does not require 
employers to provide reasonable accommodations that would 
impose an undue hardship on the employer. Under the ADA, an 
undue hardship is a ``significant difficulty or expense 
incurred by a covered entity, when considered in light of a 
variety of factors including the structure and overall 
resources of the employer and the impact of the accommodation 
on the operations of the covered entity.''\116\ Moreover, 
although ``undue hardship'' under the ADA is always determined 
on a case-by-case basis, ``[i]n general, a larger employer with 
greater resources would be expected to make accommodations 
requiring greater effort or expense than would be required of a 
smaller employer with fewer resources.''\117\ Like the ADA, the 
PWFA seeks to balance the interests of the employer and 
employee and, although there may be some costs associated with 
making a reasonable accommodation, the ``undue hardship'' 
standard limits the employer's exposure both to overly 
burdensome accommodation requests and lawsuits that would 
attempt to hold the employer liable for failing to provide a 
prohibitively expensive accommodation.
---------------------------------------------------------------------------
    \116\29 C.F.R. Sec. 1630.2.
    \117\What is Considered an ``Undue Hardship'' for a Reasonable 
Accommodation?, ADA National Network, https://adata.org/faq/what-
considered-undue-hardship-reasonable-accommodation (last visited Mar. 
19, 2020).
---------------------------------------------------------------------------

THE PREGNANT WORKERS FAIRNESS ACT USES THE AMERICANS WITH DISABILITIES 
  ACT OF 1990'S ``INTERACTIVE PROCESS'' FOR REASONABLE ACCOMMODATIONS

    The PWFA explicitly references the ``interactive process'' 
that has long been used under the ADA--and even before that 
under Section 504 of the Rehabilitation Act of 1973\118\--to 
determine an effective reasonable accommodation.\119\ In the 
context of the ADA, the interactive process ``simply means that 
employers and employees with disabilities who request 
accommodations work together to come up with 
accommodations.''\120\ In some cases under the PWFA, the worker 
will request an accommodation that will easily address a known 
limitation of pregnancy, rendering the ``interactive process'' 
either unnecessary or virtually non-existent. For example, a 
pregnant worker who is in the last trimester of her pregnancy 
who usually stands to do her job may request a stool to sit on. 
In this case, the worker's pregnancy is likely known to the 
employer or readily apparent, and the solution is inexpensive, 
readily available, and--depending on the exact nature of the 
job minimally disruptive to the employer's operation. As Ms. 
Bakst stated at the October 22nd Hearing:
---------------------------------------------------------------------------
    \118\29 U.S.C. Sec. 701.
    \119\See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th 
Cir 2000), rev'd on other grounds, U.S. Airways, Inc. v. Barnett, 535 
U.S. 391 (2002).
    \120\Accommodation and Compliance: Interactive Process, Job 
Accommodation Network, https://askjan.org/topics/interactive.cfm (last 
visited Mar. 19, 2020).

          The beauty of the flexible reasonable accommodation 
        standard within the PWFA is that it makes no 
        assumptions about what pregnant workers may need or not 
        need, and therefore it ensures that the law does not 
        perpetuate gender inequality by providing women with 
        overly broad and unnecessary protections. Instead, in 
        recognition that every pregnancy and workplace is 
        different, the PWFA requires only an interactive 
        process between employer and employee to determine 
        whether a reasonable accommodation will allow the 
        worker to continue working without jeopardizing her 
---------------------------------------------------------------------------
        health.\121\

    \121\Bakst Testimony at 23.
---------------------------------------------------------------------------
    However, under the ADA, there may be times when the 
``interactive process'' is critical to providing reasonable 
accommodations, and an employer may be committing a prohibited 
act of discrimination if it fails to engage in the interactive 
process in good faith. In interpreting the ADA, one court 
noted, ``[t]he ADA imposes upon employers a good-faith duty to 
engage [with their employees] in an interactive process to 
identify a reasonable accommodation. This duty is triggered 
when an employee communicates her disability and desire for an 
accommodation--even if the employee fails to identify a 
specific, reasonable accommodation.''\122\ This good-faith duty 
will apply to employers under the PWFA.
---------------------------------------------------------------------------
    \122\Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 
(4th Cir. 2015)
---------------------------------------------------------------------------
    Under the PWFA, once an employer has been made aware of a 
``known limitation'' related to pregnancy, childbirth, or a 
related medical condition, the employer will be required to 
engage with the employee in the process of identifying a 
reasonable accommodation. According to the JAN, there are six 
steps to the interactive process under the ADA: recognizing the 
request, gathering information including documentation of 
disability, exploring accommodation options, choosing an 
accommodation, implementing the accommodation, and monitoring 
the effectiveness of the accommodation.\123\
---------------------------------------------------------------------------
    \123\Accommodation and Compliance: Interactive Process, Job 
Accommodation Network, https://askjan.org/topics/interactive.cfm (last 
visited Mar. 19, 2020).
---------------------------------------------------------------------------
    Under the PWFA, the interactive process would operate in a 
similar way for pregnant workers as it has for decades under 
the ADA. Both the employer and employee are responsible for 
engaging in the interactive process in good faith. Not all of 
the steps are required in determining reasonable accommodations 
for pregnant workers; oftentimes, the interactive process can 
take place in a short amount of time.
    An employee who fails to engage in the interactive process 
may not later claim that their employer failed to accommodate 
their disability under the ADA, or the known limitations of 
pregnancy under the PWFA; numerous courts have rejected claims 
under the ADA on these grounds.\124\ Additionally, an employer 
will not be liable for failure to engage in the interactive 
process if the employee ultimately fails to demonstrate the 
existence of a reasonable accommodation that would allow her to 
perform the essential functions of the position.\125\
---------------------------------------------------------------------------
    \124\Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 225 (5th 
Cir. 2011) (quoting Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 734 
(1999)).
    \125\Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 
(4th Cir. 2015) (internal quotation marks omitted).
---------------------------------------------------------------------------

    THE PREGNANT WORKERS FAIRNESS ACT PROVIDES CLARITY FOR EMPLOYERS

    As of September 2020, 30 states, the District of Columbia, 
and 4 cities require employers to provide accommodations to 
pregnant workers. Still, workers and employers face a patchwork 
of state and local laws that leave many pregnant workers with 
no protections at all. Ms. Wilbur urged Congress to create a 
federal standard during the October 22nd Hearing, ``Greater 
Louisville is home to many multi-state businesses and corporate 
headquarters, so the ability to have uniformity related to 
pregnant worker accommodations throughout our region and entire 
country is important. Therefore, [Greater Louisville Inc.--The 
Metro Chamber of Commerce] urges Congress to advance the PWFA 
at the federal level.''\126\
---------------------------------------------------------------------------
    \126\Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694) Before the Subcomm. on Civil Rights & Human Servs. of the 
H. Comm. on Educ. & Labor, 116th Cong. (2019) (Written testimony of 
Iris Wilbur, Vice President of Government Affairs & Public Policy, 
Greater Louisville Inc.--The Metro Chamber of Commerce, at 2).
---------------------------------------------------------------------------
    By guaranteeing pregnant workers the right to reasonable 
accommodations in the workplace, the PWFA could also decrease 
employers' legal uncertainty. Ms. Wilbur attested to this at 
the October 22nd Hearing:

          The PWFA also gives much-needed clarity because it 
        explicitly provides `reasonable accommodations' for 
        pregnant and new mothers, in addition to the proper 
        procedures for providing them, thereby increasing the 
        potential to resolve requests for accommodations 
        quickly and informally (as employers have done for 
        decades for workers with disabilities) and reducing the 
        potential for costly litigation. We believe that the 
        Act will lead to a reduction, not an increase, in 
        litigation for precisely this reason. At least two 
        states with pregnant worker accommodation laws have 
        reported a reduction in litigation since the laws went 
        into effect. Before Kentucky's law was enacted this 
        summer, our employers were forced to navigate a complex 
        web of federal laws and court decisions to figure out 
        what their obligations are when it comes to 
        appropriately accommodating pregnant workers and new 
        mothers. Clearly defining what constitutes `reasonable 
        accommodations' and when an employer is and is not 
        obligated to provide them will establish important 
        guidance for businesses, especially the smaller and 
        mid-size companies we represent who cannot afford 
        expensive legal advisors.\127\
---------------------------------------------------------------------------
    \127\Id.

    The PWFA would provide clarity and uniformity for employers 
and would not come at significant cost to employers. The JAN 
found that ``fifty-seven percent of requested accommodations by 
employees were granted at no cost, while thirty-six percent of 
employers reported a one-time cost.''\128\
---------------------------------------------------------------------------
    \128\Job Accommodation Network, Workplace Accommodations: Low Cost, 
High Impact 3 (2019) https://askjan.org/publications/Topic-
Downloads.cfm?pubid=962628&action=download&pubtype=pdf.
---------------------------------------------------------------------------

 THE PREGNANT WORKERS FAIRNESS ACT DOES NOT ALTER RELIGIOUS EXEMPTIONS 
                    THAT MAY EXIST UNDER CURRENT LAW

    The PWFA does not change existing exemptions for religious 
employers under current law.\129\ Further, the PWFA remains 
neutral with respect to claims that may be brought under the 
Religious Freedom Restoration Act (RFRA)\130\ and does not 
include language exempting PWFA-covered employers from RFRA's 
provisions. Although religious employers may claim that a 
required accommodation is a substantial burden on their free 
exercise of religion under RFRA, fundamentally the Committee 
believes that nondiscrimination provisions are a compelling 
government interest and the least restrictive means to achieve 
the policy of equal employment opportunity. Moreover, even 
though this Administration seeks to erroneously use RFRA to 
undermine nondiscrimination provisions,\131\ RFRA cannot and 
should not be used to create exemptions that would harm the 
rights of an employee.\132\
---------------------------------------------------------------------------
    \129\Religious employers may be afforded a limited exemption from, 
for example, Title VII of the Civil Rights Act of 1964's prohibition on 
religious discrimination. See e.g., Rayburn v. Gen. Conf. of Seventh-
Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (``The language and 
the legislative history of Title VII both indicate that the statute 
exempts religious institutions only to a narrow extent.'') Furthermore, 
the constitutional ``ministerial exception'' applies to employees of 
houses of worship and religious schools who carry out important 
religious functions at houses of worship and religious schools. 
Although the types of positions that are covered by the ``ministerial 
exception'' are limited, it allows religious employers to disregard 
altogether Title VII and other civil rights employment laws for those 
positions.
    \130\42 U.S.C. Sec. 2000bb.
    \131\U.S. Department of Labor, Guidance Regarding Federal Grants 
and Executive Order 13798, https://www.dol.gov/agencies/oasam/grants/
religious-freedom-restoration-act (last visited July 7, 2020).
    \132\The Establishment Clause of the First Amendment limits the 
government's ability to provide religious exemptions from generally 
applicable laws for religious or moral reasons. The Constitution 
requires that any ``accommodation must be measured so that it does not 
override other significant interests'' or have a ``detrimental effect 
on any third party.'' Cutter v. Wilkinson, 544 U.S. 709, 722 (2005); 
Burwell v. Hobby Lobby Stores, Inc., 123 S. Ct. 2751, 2781 n. 37 
(citing Cutter, 544 U.S. at 720). Providing such an exemption under the 
PWFA would undoubtedly cause harm to women.
---------------------------------------------------------------------------

   THE PREGNANT WORKERS FAIRNESS ACT ENJOYS BROAD BIPARTISAN SUPPORT

    According to a recent poll, 89 percent of voters favor the 
PWFA, with 69 percent of voters strongly favoring it.\133\ The 
PWFA has ``high levels of support across the political spectrum 
including Republicans (81%), Independents (86%), and Democrats 
(96%) along with Trump voters (80%) and Clinton voters (97%), 
very conservative voters (80%), and liberals (95%).''\134\
---------------------------------------------------------------------------
    \133\Brian Nienaber, The Tarrance Group, Pregnant Workers Fairness 
Act Survey Memo 2 (2020) https://www.aclu.org/sites/default/files/
field_document/pwfa_survey_memo_2-20-20_1_1_2.pdf.
    \134\Id.
---------------------------------------------------------------------------
    The PWFA is about ensuring that pregnant workers can stay 
safe and healthy on the job by being provided reasonable 
accommodations for pregnancy, childbirth, or related medical 
conditions unless those accommodations are an undue burden for 
the employer. The PWFA is one crucial step needed to reduce the 
disparities pregnant workers face by ensuring that pregnant 
women, and especially pregnant women of color, can remain safe 
and healthy at work.

                      Section-by-Section Analysis

    Section 1. Short title
    This section states that the title of the bill is the 
Pregnant Workers Fairness Act (the Act or this Act).

Section 2. Nondiscrimination with regard to reasonable accommodations 
        related to pregnancy

    This section makes it unlawful for a covered entity to:

           Fail to provide reasonable accommodations 
        for pregnant workers (Pregnant workers covered under 
        the Act are those qualified employees with known 
        limitations related to pregnancy, childbirth, or 
        related medical conditions. Covered entities do not 
        have to provide reasonable accommodations if doing so 
        would cause them undue hardship.);
           Require pregnant workers to accept an 
        accommodation other than a reasonable accommodation 
        arrived at through the interactive process (as set 
        forth in Section 5);
           Deny employment opportunities to pregnant 
        workers because of the need for a reasonable 
        accommodation;
           Require a pregnant worker to take paid or 
        unpaid leave if another reasonable accommodation can be 
        provided; or
           Take adverse employment actions against a 
        pregnant worker for requesting or using a reasonable 
        accommodation.

Section 3. Remedies and enforcement

    In general under this section, pregnant workers alleging 
pregnancy discrimination under the Act shall have the same 
rights and remedies available to those employees alleging 
discrimination on the basis of race, color, religion, sex, or 
national origin under Title VII of the Civil Rights Act of 
1964,\135\ the Congressional Accountability Act of 1995,\136\ 
Chapter 5 of Title 3 of the United States Code,\137\ Section 
717 of the Civil Rights Act of 1964,\138\ and the Government 
Employee Rights Act of 1991.\139\ Remedies include equitable 
relief, including back pay, and reasonable attorney's fees. 
Claimants may also be awarded compensatory and punitive 
damages.\140\
---------------------------------------------------------------------------
    \135\42 U.S.C. Sec. 2000e.
    \136\2 U.S.C. Sec. 1301.
    \137\3 U.S.C. Sec. 411.
    \138\42 U.S.C. Sec. 2000e-16.
    \139\42 U.S.C. Sec. 2000e-16b.
    \140\Punitive damages generally cannot be awarded to employees of 
the legislative, judicial, or executive branch. Compensatory and 
punitive damages are subject to statutory caps. For employers with 15-
100 employees, the limit is $50,000. For employers with 101-200 
employees, the limit is $100,000. For employers with 201-500 employees, 
the limit is $200,000. For employers with more than 500 employees, the 
limit is $300,000.
---------------------------------------------------------------------------
    Prohibition Against Retaliation. The Act makes it unlawful 
to coerce, intimidate, threaten, or interfere with any 
individual who has exercised rights provided under the Act or 
who has helped another individual exercise rights provided 
under the Act.
    Limitation. The Act provides covered entities with a good 
faith defense. The Act provides that damages may not be awarded 
if the covered entity demonstrates good faith in engaging in 
the interactive process with the pregnant worker to identify 
and make a reasonable accommodation. This provision mirrors a 
similar provision under the Americans with Disabilities Act of 
1990.\141\
---------------------------------------------------------------------------
    \141\42 U.S.C. Sec. 12101.
---------------------------------------------------------------------------

Section 4. Rulemaking

    This section requires the EEOC to issue regulations, 
including examples of reasonable accommodations under the Act, 
within two years.

Section 5. Definitions

    This section defines the following key terms used 
throughout the Act.
    Commission. The term Commission refers to the Equal 
Employment Opportunity Commission (EEOC).
    Covered Entity. A covered entity includes a private sector 
employer who has 15 or more employees, employment agencies, 
labor organizations, legislative branch employers, executive 
branch employers, governmental agencies (including state and 
local governments and the government of the District of 
Columbia), political subdivisions, units of the judicial branch 
of the Federal Government having positions in the competitive 
service, and the offices of state and local elected officials.
    Employee. An employee is someone who is employed by a 
private-sector employer; this includes job applicants. The term 
employee also includes those in the legislative branch; the 
executive branch; certain federal judicial branch employees 
(those with positions in the competitive service); and state 
and local government employees, including those who work for 
elected officials.
    Person. A person is defined the same way such term is 
defined under Title VII of the Civil Rights Act of 1964.
    Known Limitation. A known limitation means a physical or 
mental condition related to, affected by, or arising out of 
pregnancy, childbirth, or related medical conditions that the 
employee has communicated to the employer, whether or not such 
limitation meets the definition of disability outlined in the 
Americans with Disabilities Act of 1990.
    Qualified Employee. A qualified employee is an employee, or 
job applicant, who, with or without reasonable accommodation, 
can perform the essential functions of the job (essential 
function). An individual is considered qualified if any 
inability to perform an essential function is for a temporary 
period, the essential function could be performed in the near 
future, and the inability to perform the essential function can 
be reasonably accommodated.
    Reasonable Accommodation. A reasonable accommodation is 
defined the same way such term is defined under the Americans 
with Disabilities Act of 1990. This definition adopts the 
requirement for a good faith interactive negotiation between 
employers and employees to determine a reasonable accommodation 
(interactive process). Under the Act, reasonable accommodations 
would be provided in light of known limitations related to 
pregnancy, rather than a disability.
    Undue Hardship. An undue hardship is defined the same way 
such term is defined under the Americans with Disabilities Act 
of 1990. An undue hardship means an action requiring 
significant difficulty or expense, when considering factors 
such as the nature and cost of the accommodation and the 
employer's overall financial resources.

Section 6. Waiver of State Immunity

    This section makes clear that States shall not be immune 
from the Act under the 11th amendment to the U.S. Constitution.

Section 7. Relationship to Other Laws

    This section makes clear that nothing in the Act limits 
pregnant workers' rights under a federal, State, or local law 
that provides greater or equal protection.

Section 8. Severability

    This section states that if any portion of the Act is found 
unconstitutional, the remainder of the Act shall not be 
affected.

                       Explanation of Amendments

    The amendments, including the amendments in the nature of a 
substitute, are explained in the descriptive portions of this 
report.

              Application of Law to the Legislative Branch

    Pursuant to section 102(b)(3) of the Congressional 
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 2694, as 
amended, applies to terms and conditions of employment within 
the legislative branch. Section 5(2)(B)(i) includes an 
employing office as defined by section 101 of the Congressional 
Accountability Act of 1995 (2 U.S.C. 1301) and section 411(c) 
of title 3, United States Code, in the definition of a 
``covered entity.''

                       Unfunded Mandate Statement

    Pursuant to Section 423 of the Congressional Budget and 
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended 
by Section 101(a)(2) of the Unfunded Mandates Reform Act of 
1995, Pub. L. No. 104-4), the Committee traditionally adopts as 
its own the cost estimate prepared by the Director of the 
Congressional Budget Office (CBO) pursuant to section 402 of 
the Congressional Budget and Impoundment Control Act of 1974. 
The Committee reports that because this cost estimate was not 
timely submitted to the Committee before the filing of this 
report, the Committee is not in a position to make a cost 
estimate for H.R. 2694, as amended.

                           Earmark Statement

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2694 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as described in clauses 9(e), 9(f), and 9(g) of rule 
XXI.

                            Roll Call Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 2694:


             Statement of Performance Goals and Objectives

    Pursuant to clause (3)(c) of rule XIII of the Rules of the 
House of Representatives, the goals of H.R. 2694 are to 
establish an affirmative right to reasonable accommodations for 
workers with known limitations relating to childbirth, 
pregnancy, or related medical conditions without imposing an 
undue hardship for employers.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee states that no 
provision of H.R. 2694 establishes or reauthorizes a program of 
the Federal Government known to be duplicative of another 
federal program, a program that was included in any report from 
the Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                                Hearings

    Pursuant to section 103(i) of H. Res. 6 for the 116th 
Congress, on October 22, 2019, the Committee on Education and 
Labor's Subcommittee on Civil Rights and Human Services held a 
hearing entitled ``Long Over Due: Exploring the Pregnant 
Workers Fairness Act (H.R. 2694),'' which was used to consider 
H.R. 2694. The hearing explored the health and economic effects 
of pregnant workers' lack of access to reasonable 
accommodations and examined how H.R. 2694 would fill a gap in 
the existing legal framework by guaranteeing pregnant workers 
the right to reasonable workplace accommodations. The Committee 
heard testimony from: The Honorable Jerrold Nadler (D-NY-10); 
Michelle Durham, former Emergency Medical Technician (EMT), 
Arab, AL; Iris Wilbur, Vice President of Government Affairs and 
Public Policy at Greater Louisville Inc.--The Metro Chamber of 
Commerce, Louisville, KY; Dina Bakst, Co-Founder and Co-
President of A Better Balance, New York, NY; and Ellen 
McLaughlin, Partner at Seyfarth Shaw LLP, Chicago, IL.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

               New Budget Authority and CBO Cost Estimate

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives and section 308(a) of the 
Congressional Budget and Impoundment Control Act of 1974, and 
pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives and section 402 of the Congressional 
Budget and Impoundment Control Act of 1974, the Committee has 
requested but not received a cost estimate for the bill from 
the Director of the Congressional Budget Office.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 2694. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when the committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget and Impoundment 
Control Act of 1974. The Committee reports that because this 
cost estimate was not timely submitted to the Committee before 
the filing of this report, the Committee is not in a position 
to make a cost estimate for H.R. 2694, as amended.

         Changes in Existing Law Made by the Bill, as Reported

    The bill does not change existing law for purposes of 
clause 3(e) of rule XIII of the Rules of the House of 
Representatives.



                             MINORITY VIEWS

                              Introduction

    Committee Republicans unequivocally believe that 
discrimination of any kind is abhorrent and should not be 
tolerated, and that unlawful discrimination should not be 
permitted. This is why federal laws are already in place to 
protect workers from discrimination in the workplace, including 
discrimination because of pregnancy.
    Prior to the Committee markup of H.R. 2694 on January 14, 
2020, significant progress was made negotiating a bipartisan 
compromise, and Committee Republicans commend Chairman Robert 
C. ``Bobby'' Scott (D-VA) for his willingness to negotiate on 
several issues. The Chairman's Amendment in the Nature of a 
Substitute (Scott ANS) addressed a number of important concerns 
raised by Republicans, resulting in a much-improved product. 
However, one significant issue remains to be addressed in H.R. 
2694 relating to protections for religious organizations.

                          PURPOSE OF H.R. 2694

    H.R. 2694 is a stand-alone bill that would create a new 
statute. H.R. 2694 makes it unlawful for an employer not to 
provide reasonable accommodations for known limitations related 
to the pregnancy, childbirth, or related medical conditions of 
an employee or applicant unless the employer can demonstrate 
that the accommodation would impose an undue hardship on the 
operation of the business.\1\ H.R. 2694 is intended to address 
perceived shortcomings in the Supreme Court's 2015 decision in 
Young v. United Parcel Service, Inc. (Young).\2\ The Supreme 
Court in that case applied the requirements of the Pregnancy 
Discrimination Act of 1978 (PDA), which is part of Title VII of 
the Civil Rights Act of 1964 (CRA) and states that 
discrimination because of ``sex'' includes discrimination 
because of ``pregnancy, childbirth, or related medical 
conditions; and women affected by pregnancy, childbirth, or 
related medical conditions shall be treated the same for all 
employment-related purposes . . . as other persons not so 
affected but similar in their ability or inability to 
work.''\3\
---------------------------------------------------------------------------
    \1\H.R. 2694, 116th Cong. Sec. 2(1) (2019).
    \2\575 U.S. 206 (2015).
    \3\42 U.S.C. Sec. 2000e(k).
---------------------------------------------------------------------------
    In Young, a part-time driver for United Parcel Service 
(UPS) named Peggy Young requested an accommodation of light 
duty due to her pregnancy and her doctor's recommendation that 
she not lift over 20 pounds. UPS refused the request and did 
not allow her to return to work because lifting over 20 pounds 
was an essential function of her job. Notably, UPS accommodated 
on-the-job injuries with light-duty assignments but did not 
offer light duty to employees who had medical conditions 
unrelated to a work injury. UPS based its decision on the 
provisions of a collective bargaining agreement.\4\
---------------------------------------------------------------------------
    \4\In 2014, UPS changed its policy to make pregnant employees 
eligible for light-duty assignments prior to oral argument at the 
Supreme Court, but the Court proceeded with the case. Brief for 
Respondent at 11, Young v. United Parcel Serv., 575 U.S. 206 (2015) 
(No. 12-1226).
---------------------------------------------------------------------------
    The Supreme Court ruled in favor of Ms. Young, vacating the 
judgment of the lower court, and held that a pregnant employee 
can potentially establish discrimination under the PDA by 
alleging the employer denied a request for an accommodation and 
the employer accommodated others similar in their ability or 
inability to work. Under the PDA, a plaintiff can reach a jury 
by showing ``the employer's policies impose a significant 
burden on pregnant workers'' and the employer's non-
discriminatory reasons for the policies are not ``sufficiently 
strong to justify the burden.''\5\ Differential treatment 
between pregnant workers and other workers is a factor in 
determining whether the employer's policies impose a 
significant burden on pregnant workers and whether the 
employer's non-discriminatory reasons are sufficiently strong 
to justify the burden. However, the Court did not agree that 
pregnancy accommodations must automatically be provided to the 
same extent as any other accommodations, including on-the-job 
injury accommodations. In addition, the Court noted that 
statutory changes to Title I of the Americans with Disabilities 
Act of 1990 (ADA) in the Americans with Disabilities Act 
Amendments Act of 2008, which were made after the facts at 
issue in Young, ``may limit the future significance'' of the 
Court's interpretation of the PDA because Congress ``expanded 
the definition of `disability' under the ADA to make clear that 
`physical or mental impairment[s] that substantially limi[t]' 
an individual's ability to lift, stand or bend are ADA-covered 
disabilities.''\6\
---------------------------------------------------------------------------
    \5\575 U.S. at 229.
    \6\Id. at 218-19. The plaintiff did not petition the Supreme Court 
to review whether UPS had violated the ADA. The Court noted that the 
Equal Employment Opportunity Commission (EEOC) issued regulations in 
2014 interpreting the ADA to require employers to accommodate employees 
whose temporary lifting restrictions originated off the job. Id. at 
219.
---------------------------------------------------------------------------
    H.R. 2694 explicitly requires a reasonable accommodation 
for known limitations related to pregnancy, childbirth, or 
related medical conditions without reference to whether other 
workers' limitations, injuries, or impairments have been 
accommodated, but it does so in a stand-alone bill that does 
not amend the PDA or the ADA.

                  NEGOTIATED IMPROVEMENTS TO H.R. 2694

Essential Functions Requirement
    At a hearing on H.R. 2694 on October 22, 2019, 
Representative Jerrold Nadler (R-NY), the bill's author, 
testified before the Subcommittee on Civil Rights and Human 
Services that the legislation uses ``the framework and language 
of the ADA.''\7\ Accordingly, H.R. 2694 incorporates the ADA 
definitions of ``reasonable accommodation'' and ``undue 
hardship.''\8\ The ADA prohibits employment discrimination ``on 
the basis of disability,'' which can include ``not making 
reasonable accommodations to the known physical or mental 
limitations of an otherwise qualified individual with a 
disability.''\9\ However, to qualify for potential protection 
under the ADA, the employee or applicant must be able to 
``perform the essential functions of the employment position,'' 
``with or without reasonable accommodation.''\10\
---------------------------------------------------------------------------
    \7\Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694): Hearing Before the Subcomm. on Civ. Rights & Hum. Serv. of 
the H. Comm. on Educ. & Lab., 116th Cong. (2019) (written statement of 
Rep. Jerrold Nadler at 4).
    \8\H.R. 2694, 116th Cong. Sec. 5(5) (2019).
    \9\42 U.S.C. Sec. 12112(a), (b)(5).
    \10\Id. Sec. 12111(8).
---------------------------------------------------------------------------
    H.R. 2694 as introduced did not include a requirement that 
the employee or applicant be able to perform the essential 
functions of the job, with or without reasonable accommodation. 
Ms. Ellen McLaughlin, a partner with Seyfarth Shaw LLP 
specializing in labor and employment law, raised significant 
concerns with this omission, calling it a ``key provision of 
the ADA'' when she testified before the Subcommittee on Civil 
Rights and Human Services. She stated:

          The types of accommodation that an employer must 
        provide under the ADA are numerous and defined, but 
        they do not extend to accommodating an employee who 
        remains unable to perform the essential functions of 
        the job even with those accommodations. By eliminating 
        the essential function criteria, the Bill appears to 
        require employers to take steps to keep the employee on 
        the job regardless of her ability to continue to 
        perform the core functions of the job. The consequences 
        for employers--and employees--are unclear. Does this 
        require an employer to keep an employee in a position 
        despite being unable to perform the core tasks 
        associated with that position--effectively allowing the 
        employee to report for work but not do the job? If an 
        employee cannot work mandatory overtime due to 
        pregnancy and mandatory overtime is clearly an 
        essential job function, is the pregnant employee--
        unlike the employee with a disability under the ADA--
        excused from working the mandatory overtime? Or does it 
        require an employer to reassign the employee to a 
        totally different position and, if so, can the employer 
        make appropriate wage adjustments to reflect the 
        compensation in that job?\11\
---------------------------------------------------------------------------
    \11\Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694): Hearing Before the Subcomm. on Civ. Rights & Hum. Serv. of 
the H. Comm. on Educ. & Lab., 116th Cong. (2019) (written statement of 
Ellen McLaughlin, Partner, Seyfarth Shaw LLP, at 7-8) (emphasis in 
original) [hereinafter McLaughlin Statement].

    To address these concerns, the Scott ANS adds a requirement 
that the employee or applicant be ``qualified,'' meaning the 
individual, ``with or without reasonable accommodation, can 
perform the essential functions of the employment 
position.''\12\ In addition, to address concerns from 
supporters of H.R. 2694 that workers with known limitations 
related to pregnancy who are temporarily unable to perform an 
essential function be able to receive an accommodation, the 
Scott ANS includes an exception that an employee or applicant 
``shall be considered qualified if--(A) any inability to 
perform an essential function is for a temporary period; (B) 
the essential function could be performed in the near future; 
and (C) the inability to perform the essential function can be 
reasonably accommodated.''\13\
---------------------------------------------------------------------------
    \12\Scott ANS Sec. 5(6).
    \13\Id.
---------------------------------------------------------------------------
    This compromise language maintains the ADA essential-
function requirement while indicating it is also appropriate to 
consider other ADA forms of reasonable accommodation such as 
``job restructuring, part-time or modified work schedules, 
reassignment to a vacant position, acquisition or modification 
of equipment or devices, . . . and other similar 
accommodations''--which are incorporated in H.R. 2694 through 
its adoption of the ADA definition of reasonable 
accommodation--as well as leave.\14\ The ``essential 
functions'' language in the Scott ANS thus incorporates the ADA 
concept of ``essential functions'' in H.R. 2694, although 
temporary limitations related to pregnancy must also be 
considered when determining the appropriate reasonable 
accommodation. Moreover, under the Scott ANS, to trigger the 
exception to the essential functions requirement, the 
limitation must be ``temporary,'' the essential function at 
issue must be something that would be performed in the ``near 
future,'' and the limitation can be ``reasonably 
accommodated,'' which could include leave. The Scott ANS 
therefore does not require an employer to allow an employee to 
report for work but not do the job.
---------------------------------------------------------------------------
    \14\42 U.S.C. Sec. 12111(9)(B); see also EEOC, Employer-Provided 
Leave and the Americans with Disabilities Act (``Granting Leave as a 
Reasonable Accommodation'').
---------------------------------------------------------------------------
    A key part of the ADA interactive process that takes place 
between a worker and employer to determine a reasonable 
accommodation is often a discussion of the essential functions 
of the worker's job. Establishing what are and are not 
essential functions is often critical in determining whether 
the employee can stay in the current position with a reasonable 
accommodation or whether another accommodation--such as job 
restructuring, a modified work schedule, reassignment to a 
vacant position, or leave--is needed. In its definition of the 
term ``qualified individual,'' the ADA states that 
``consideration shall be given to the employer's judgment as to 
what functions of a job are essential, and if an employer has 
prepared a written description before advertising or 
interviewing applicants for the job, this description shall be 
considered evidence of the essential functions of the 
job.''\15\ This is a practical, commonsense provision in the 
ADA because it is the employer who must ultimately choose the 
duties and assignments of each position so that the enterprise 
as a whole can function and thrive. Under H.R. 2694, courts 
will also need to consider the employer's judgment regarding 
the essential functions of the job.
---------------------------------------------------------------------------
    \15\42 U.S.C. Sec. 12111(8).
---------------------------------------------------------------------------
    Like the ADA, H.R. 2694 does not require ``red circle'' 
rates of pay for employees reassigned to vacant positions as 
reasonable accommodations. A red circle pay rate is a higher-
than-normal pay rate for the job classification. Under the ADA 
and H.R. 2694, if a reasonable accommodation consists of 
reassignment to a vacant position, the pay can be commensurate 
with the vacant position's normal rate, even if this pay rate 
is lower than the rate for the employee's current position.\16\
---------------------------------------------------------------------------
    \16\See, e.g., Job Accommodation Network, Technical Assistance 
Manual for Title I of the ADA ch. 3.10.5, https://askjan.org/
publications/ada-specific/Technical-Assistance-Manual-for-Title-I-of-
the-ADA.cfm#spy-scroll-heading-32 (employer may reassign individual to 
lower-graded position and does not have to maintain the individual's 
salary at the level of the higher-graded position).
---------------------------------------------------------------------------
Definition of Known Limitations
    The ADA includes a broad, comprehensive definition of 
``disability'' so that workers and employers understand what 
impairments are covered by the statute.\17\ In contrast, H.R. 
2694 as introduced did not define ``known limitations'' related 
to pregnancy, childbirth, and related medical conditions. Ms. 
McLaughlin in her testimony explained why a definition of this 
central term in H.R. 2694 is needed:
---------------------------------------------------------------------------
    \17\42 U.S.C. Sec. 12102(1) (``The term `disability' means . . . a 
physical or mental impairment that substantially limits one or more 
major life activities . . . .); id. Sec. 12102(2)(A) (``[M]ajor life 
activities include, but are not limited to, caring for oneself, 
performing manual tasks, seeing, hearing, eating, sleeping, walking, 
standing, lifting, bending, speaking, breathing, learning, reading, 
concentrating, thinking, communicating, and working.''); id. 
Sec. 12102(2)(B) (``[A] major life activity also includes the operation 
of a major bodily function, including but not limited to, functions of 
the immune system, normal cell growth, digestive, bowel, bladder, 
neurological, brain, respiratory, circulatory, endocrine, and 
reproductive functions.'').

          The phrase ``known limitations'' is clearly different 
        than the definition of a covered disability under the 
        ADA, and appears to be an express rejection of that 
        term. While the definitions of the ADA may be 
        imperfect, they have been interpreted and analyzed by 
        courts over a period of years, and employers are 
        familiar with and have been applying the ADA standards 
        for some time. The decision to not cross-reference the 
        ADA indicates that a different scope of coverage is 
        intended by the drafters of the Bill. It is entirely 
        unclear, however, what scope of coverage is intended, 
        and precisely how that coverage differs from a covered 
        disability under the ADA. Given the language of the 
        Bill, it appears that any limitation of any type is 
        covered, as long as the employer is aware of it.\18\
---------------------------------------------------------------------------
    \18\McLaughlin Statement, supra note 11, at 7.

    To address these concerns, the Scott ANS includes a 
definition of ``known limitation,'' although this definition is 
far from being as detailed or specific as the ADA definition of 
``disability.'' The Scott ANS defines ``known limitation'' as a 
``physical or mental condition related to, affected by, or 
arising out of pregnancy, childbirth, or related medical 
conditions that the employee or employee's representative has 
communicated to the employer whether or not such condition 
meets the definition of disability specified in section 3 of 
the Americans with Disabilities Act of 1990 (42 U.S.C. 
12102).''\19\ Thus the ``known limitation'' must be a 
``physical or mental condition'' related to pregnancy, and it 
must be communicated to the employer, who is not under an 
obligation to guess or take affirmative steps to find out 
whether the worker has a limitation.
---------------------------------------------------------------------------
    \19\Scott ANS Sec. 5(5).
---------------------------------------------------------------------------
    The Scott ANS definition confirms that ``known limitation'' 
goes beyond the ADA definition of ``disability'' by stating the 
condition can qualify ``whether or not such condition meets the 
definition of disability specified in [the ADA.]'' Supporters 
of H.R. 2694 were concerned that the already broad ADA 
definition of ``disability'' has not been interpreted by all 
courts to include limitations associated with pregnancy, 
including healthy pregnancies.
    While the definition in the Scott ANS of ``known 
limitation'' falls far short of the specificity and detail of 
the ADA definition of ``disability,'' this compromise language 
defining ``known limitation'' is not completely open-ended and 
will give workers and employers some guidance. As a backstop, 
H.R. 2694's incorporation of the ADA definition of ``reasonable 
accommodation'' places a limit on an employer's obligations--
i.e., the requested accommodation must be reasonable and 
proportional under the bill. A minor limitation will presumably 
only require a minor accommodation.

Interactive Process

    Under the ADA, a reasonable accommodation will often be 
determined through a balanced, interactive process involving 
dialogue between the worker and the employer.\20\ H.R. 2694 
incorporates the definition of ``reasonable accommodation'' 
from the ADA, including a reference to the interactive process 
that is typically used.\21\ However, Sections 2(2) and 2(4) of 
H.R. 2694 as introduced seem to give the employee unilateral 
veto power over offered accommodations, in contrast to the 
ADA's balanced, interactive process for determining reasonable 
accommodations.\22\ Ms. McLaughlin raised concerns about 
Section 2(2) in her testimony:
---------------------------------------------------------------------------
    \20\See 29 C.F.R. Sec. 1630.2(o)(2)(3) (``To determine the 
appropriate reasonable accommodation it may be necessary for the 
covered entity to initiate an informal, interactive process with the 
individual with a disability in need of the accommodation. This process 
should identify the precise limitations resulting from the disability 
and potential reasonable accommodations that could overcome those 
limitations.'').
    \21\See H.R. 2694, 116th Cong. Sec. 5(5) (2019) (``[T]he terms 
`reasonable accommodation' and `undue hardship' have the meanings given 
such terms in section 101 of the [ADA] and shall be construed as such 
terms have been construed under such Act and as set forth in the 
regulations required by this Act, including with regard to the 
interactive process that will typically be used to determine an 
appropriate reasonable accommodation.'').
    \22\See H.R. 2694, 116th Cong. Sec. 5(2) (2019) (unlawful to 
``require a job applicant or employee affected by pregnancy, 
childbirth, or related medical conditions to accept an accommodation 
that such applicant or employee chooses not to accept, if such 
accommodation is unnecessary to enable the applicant or employee to 
perform her job''); id. Sec. 5(4) (unlawful to ``require an employee to 
take leave, whether paid or unpaid, if another reasonable accommodation 
can be provided to the known limitations related to the pregnancy, 
childbirth, or related medical conditions of an employee'').

          The Bill also includes a provision that allows an 
        employee to not accept an accommodation offered by the 
        employer. . . . Does this provision really contemplate 
        that the employee can veto an accommodation proposed by 
        the employer? Are there any limits to that veto right? 
        For example, what if the employer believes in good 
        faith that the employee cannot safely perform the job, 
        for herself or others, without that specific 
        accommodation? . . . [A]n employer may want to impose a 
        restriction on the amount of weight that can be lifted 
        by an employee in the second or third trimester based 
        on medical documentation. Can the employer only do so 
        with the employee's approval?\23\
---------------------------------------------------------------------------
    \23\McLaughlin Statement, supra note 11, at 8 (emphasis in 
original).

    She had similar concerns with Section 2(4), which seems to 
give the employee unilateral veto power over an offered 
accommodation of leave:
          [T]he Bill contemplates that a pregnant employee 
        cannot be required to go on leave if another 
        accommodation would address the ``known limitations'' 
        of that employee. . . . What if the pregnant worker is 
        still physically capable of performing the job, but it 
        would expose the fetus to unsafe conditions, such as 
        lead or radiation? Under circumstances such as those, 
        employers should be able to require the pregnant worker 
        not to report to the job site, but the Bill appears to 
        prohibit such a requirement.

    It is also unclear what happens if the accommodation sought 
by the employee creates an undue hardship on the employer. 
Using the ADA scheme, the employer would be able to place the 
worker on leave, but Section 2(4) of the Bill suggests that the 
employer cannot place the worker on leave if an accommodation 
exists that would address the ``known limitation,'' even if 
that accommodation results in an undue hardship.\24\
---------------------------------------------------------------------------
    \24\McLaughlin Statement, supra note 11, at 8-9.
---------------------------------------------------------------------------
    To address these concerns, the Scott ANS amends Section 
2(2) to incorporate explicitly the ADA's balanced, interactive 
process. Under amended Section 2(2), it is unlawful to 
``require a qualified employee affected by pregnancy, 
childbirth, or related medical conditions to accept an 
accommodation other than any reasonable accommodation arrived 
at through the interactive process referred to in section 5(7) 
[of the Act].'' This compromise language makes clear that 
reasonable accommodations arrived at through the interactive 
process, including an accommodation of leave, are not subject 
to a unilateral veto by the employee. The longstanding and 
well-developed ADA interactive process will be the framework 
for accommodations under Sections 2(2) and 2(4).
    In determining a reasonable accommodation under the ADA, 
when a ``need for an accommodation is not obvious,'' an 
employer may require the employee to provide medical 
``documentation of the need for the accommodation.''\25\ 
Because H.R. 2694 incorporates the ADA definition of 
``reasonable accommodation,'' including the interactive process 
between the employee and employer typically used to determine a 
reasonable accommodation, H.R. 2694 presumably allows employers 
to require such documentation when the need for an 
accommodation is not obvious.
---------------------------------------------------------------------------
    \25\29 C.F.R. pt. 1630, App. at 37-38.
---------------------------------------------------------------------------
    In addition, the ADA includes a defense the employer can 
raise if the employer has a ``qualification standard'' that 
includes a ``requirement that an individual shall not pose a 
direct threat to the health or safety of other individuals in 
the workplace.''\26\ The Supreme Court has ruled that this 
includes a direct threat that may be posed to the individual's 
own health or safety.\27\ The Occupational Safety and Health 
Administration has noted that ``exposure to reproductive 
hazards in the workplace is an increasing health concern.''\28\ 
Under H.R. 2694, if the workplace environment--such as exposure 
to chemical, physical, or biological hazards--poses a threat to 
the health or safety of the pregnant employee, the employer 
will be able to take into account such threats to health or 
safety in determining a reasonable accommodation, including 
through the interactive process with the employee.
---------------------------------------------------------------------------
    \26\42 U.S.C. Sec. 12113(b).
    \27\See Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 83 (2002).
    \28\U.S. Dep't of Lab., Occupational Safety & Health Admin., 
Reproductive Hazards, https://www.osha.gov/SLTC/reproductivehazards/
index.html.
---------------------------------------------------------------------------

Fifteen-employee Threshold

    Title VII of the CRA and Title I of the ADA only apply to 
employers with 15 or more employees.\29\ H.R. 2694 did not 
include a similar limitation of coverage, even though the bill 
is intended to address the Supreme Court's 2015 decision in 
Young interpreting the PDA (which is part of Title VII), and 
even though, as Rep. Nadler testified, H.R. 2694 uses the 
framework of the ADA. To address this omission and conform the 
bill to Title VII's and the ADA's coverage, the Scott ANS 
limits H.R. 2694's coverage to employers with 15 or more 
employees by incorporating this limitation from Section 701(b) 
of the CRA.\30\
---------------------------------------------------------------------------
    \29\42 U.S.C. Sec. 2000e(b); id. Sec. 12111(5)(A).
    \30\Scott ANS Sec. 5(2)(B)(i).
---------------------------------------------------------------------------

Good Faith Efforts

    The CRA states that damages shall not be awarded in ADA 
cases if the employer ``demonstrates good faith efforts, in 
consultation with the person with the disability who has 
informed the covered entity that accommodation is needed, to 
identify and make a reasonable accommodation that would provide 
such individual with an equally effective opportunity . . . 
.''\31\ This is a sensible provision in the CRA so that damages 
are not available if the employer has made good faith efforts 
through the ADA interactive process to determine a reasonable 
accommodation.
---------------------------------------------------------------------------
    \31\42 U.S.C. Sec. 1981a(a)(3).
---------------------------------------------------------------------------
    Such a provision was not included in H.R. 2694 as 
introduced, but the Scott ANS adds a provision so that damages 
are not available under the bill if the employer has made good 
faith efforts through the interactive process with the worker 
to determine a reasonable accommodation for the worker's known 
limitations related to pregnancy, childbirth, and related 
medical conditions.\32\ The Scott ANS conforms H.R. 2694's 
remedies to the CRA's remedies and will further encourage 
employers to make good faith efforts to determine reasonable 
accommodations under the bill through the balanced, interactive 
process.
---------------------------------------------------------------------------
    \32\Scott ANS Sec. 3(g).
---------------------------------------------------------------------------

Rulemaking Authority

    H.R. 2694 requires the Equal Employment Opportunity 
Commission (EEOC) to issue regulations within two years of the 
bill's enactment. As introduced, the rulemaking section states: 
``Such regulations shall provide examples of reasonable 
accommodations addressing known limitations related to 
pregnancy, childbirth, or related medical conditions that shall 
be provided to a job applicant or employee affected by such 
known limitations unless the covered entity can demonstrate 
that doing so would impose an undue hardship.''\33\
---------------------------------------------------------------------------
    \33\H.R. 2694, 116th Cong. Sec. 4 (2019) (emphasis added).
---------------------------------------------------------------------------
    The italicized phrase is too prescriptive. It seems to 
indicate that the examples of reasonable accommodations in 
EEOC's regulation are mandatory, even if they do not apply to 
the specific employer and employee because of circumstances 
that are different than those outlined in the example. To 
address this concern, the Scott ANS strikes the phrase ``that 
shall be provided to a job applicant or employee affected by 
such known limitations unless the covered entity can 
demonstrate that doing so would impose an undue hardship.'' 
This strike clarifies that the examples in the regulation are 
merely examples of potential reasonable accommodations and not 
mandatory.\34\
---------------------------------------------------------------------------
    \34\See Scott ANS Sec. 4.
---------------------------------------------------------------------------

                   UNRESOLVED CONCERN WITH H.R. 2694

    The CRA is the nation's flagship civil rights law. Title 
VII of the CRA includes a limited but longstanding provision 
stating that the statute will not apply to a ``religious 
corporation, association, educational institution, or society 
with respect to the employment of individuals of a particular 
religion to perform work connected with the carrying on by such 
corporation, association, educational institution, or society 
of its activities.''\35\ This provision allows religious 
organizations to make religiously based employment decisions so 
they are not compelled to violate their faith. They can make 
employment decisions based on the worker's religion conforming 
to the organization's religion, including following the 
religious tenets of the organization,\36\ but the CRA provision 
is not a license to discriminate in employment on other 
grounds.\37\ The CRA provision applies to ``the entire realm of 
the employment arena,'' not just the hiring of individuals.\38\ 
Title I of the ADA includes a similar provision.\39\
---------------------------------------------------------------------------
    \35\42 U.S.C. Sec. 2000e-1(a).
    \36\See, e.g., Gosche v. Calvert High Sch., 997 F. Supp. 867, 872 
(N.D. Ohio 1998) (religious school could make adherence to moral 
standards of the church a requirement for continued employment), 
affirmed by 181 F.3d 101 (6th Cir. 1999).
    \37\See, e.g., Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 
F.2d 1164, 1166 (4th Cir. 1985) (while ``religious institutions may 
base relevant hiring decisions upon religious preferences, Title VII 
does not confer upon religious organizations a license to make those 
same decisions on the basis of race, sex, or national origin'').
    \38\Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 238 F. 
Supp.2d 174, 180 (D.D.C. 2002).
    \39\42 U.S.C. Sec. 12113(d) (``This subchapter shall not prohibit a 
religious corporation, association, educational institution, or society 
from giving preference in employment to individuals of a particular 
religion to perform work connected with the carrying on by such 
corporation, association, educational institution, or society of its 
activities. . . . [A] religious organization may require that all 
applicants and employees conform to the religious tenets of such 
organization.'').
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    Neither H.R. 2694 as introduced nor the Scott ANS 
incorporate the CRA religious-organization protection or any 
provision protecting religious organizations. During 
negotiations over H.R. 2694, Committee Republicans requested 
inclusion of such a provision, but it was not included in the 
Scott ANS. As Ranking Member Virginia Foxx (R-NC) stated during 
the Committee markup, without such a provision, H.R. 2694 could 
force a religious organization to make employment decisions in 
violation of the organization's faith.
    For example, if an employee working for a religious 
organization requests time off to have an abortion procedure, 
H.R. 2694 could require the organization to comply with this 
request as a reasonable accommodation of known limitations 
related to pregnancy, childbirth, or related medical 
conditions. This accommodation could be required to include 
paid leave if the employee is eligible for paid medical leave 
as part of the employer's workplace policies. These kinds of 
accommodations, however, could be contrary to the 
organization's religious beliefs, placing the organization in a 
position of either violating federal law or violating its 
faith.
    Religious-organization protections are a common feature of 
the pregnancy-accommodation laws that have been enacted by 
states. One of the Democrat-invited witnesses at the October 
22, 2019, Subcommittee on Civil Rights and Human Services 
hearing on H.R. 2694 pointed to Kentucky's recently-enacted law 
requiring reasonable accommodations for pregnant workers as a 
model of a successful pregnant-worker accommodation law for 
Congress to consider.\40\ The Kentucky law includes a 
religious-organization protection very similar to Title VII's 
protection.\41\ At least 15 other states and the District of 
Columbia have pregnancy-nondiscrimination or pregnancy-
accommodation laws that include a religious-organization 
protection similar to Title VII's. The states include Arkansas, 
Hawaii, Iowa, Maine, Nebraska, New Jersey, New York, Ohio, 
Oklahoma, South Carolina, Tennessee, Texas, Utah, Wisconsin, 
and Wyoming.\42\
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    \40\See Long Over Due: Exploring the Pregnant Workers' Fairness Act 
(H.R. 2694): Hearing Before the Subcomm. on Civ. Rights & Hum. Serv. of 
the H. Comm. on Educ. & Lab. (2019) (statement of Iris Wilbur, Vice 
President of Gov't Affairs & Pub. Pol'y, Greater Louisville Inc.).
    \41\See Ky. Rev. Stat. Ann. Sec. 344.090 (``[I]t is not an unlawful 
practice for . . . [a] religious corporation, association, or society 
to employ an individual on the basis of his religion to perform work 
connected with the carrying on by such corporation, association, or 
society of its religious activity.'').
    \42\See Ark. Code Ann. Sec. 16-123-103; D.C. Code Sec. 2-1401.03; 
Haw. Rev. Stat. Sec. 378-3; Iowa Code Sec. 216.6; Me. Stat. tit. 
Sec. 5, Sec. 4573-A; Neb. Rev. Stat. Sec. 48-1103; N.J. Stat. Ann. 
10:5-12; N.Y. Exec. Law  Sec. 296.11; Ohio Rev. Code Ann. 
Sec. 4112.02(P); Okla. Stat. tit. 25, Sec. 1307; S.C. Code Ann. Sec. 1-
13-80; Tenn. Code Ann. Sec. 4-21-405; Tex. Lab. Sec. 21.109; Utah Code 
Ann. Sec. 34A-5-102(i); Wisc. Stat. Sec. 111.337; Wyo. Stat. Ann. 
Sec. 27-9-102(b).
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    Committee Democrats contended during the markup of H.R. 
2694 that religious organizations are already protected by the 
Religious Freedom Restoration Act of 1993 (RFRA), and inclusion 
of the CRA's religious-organization protection is unnecessary. 
RFRA states that the federal government ``shall not 
substantially burden a person's exercise of religion even if 
the burden results from a rule of general applicability,'' 
except that the government ``may substantially burden a 
person's exercise of religion only if it demonstrates that 
application of the burden to the person . . . is in furtherance 
of a compelling governmental interest; and . . . is the least 
restrictive means of furthering that compelling governmental 
interest.'' An organization ``may assert'' a violation of RFRA 
``as a claim or defense in a judicial proceeding and obtain 
appropriate relief'' against the government.\43\
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    \43\Id. Sec. 2000bb-1.
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    Unfortunately, RFRA does not render the inclusion of a 
religious-organization protection in H.R. 2694 unnecessary. The 
CRA's provision provides important protections that are 
stronger than those provided by RFRA. The CRA provision limits 
the statute's application with respect to religiously based 
employment decisions. Under the CRA, the federal government and 
the courts cannot interfere with these decisions if the 
organization is a religious organization and its employment 
decisions are based on the organization's religion. RFRA, on 
the other hand, merely provides a defense to governmental 
action and creates a balancing test to determine whether the 
government may impose a burden on the exercise of religion. 
Under RFRA, the federal government may substantially burden the 
exercise of religion if it demonstrates the burden is in 
furtherance of a compelling governmental interest and is the 
least restrictive means of furthering that interest.
    If H.R. 2694 is enacted, federal agencies enforcing H.R. 
2694 and private plaintiffs will argue in the courts that the 
requirements in the Act are furthering a compelling 
governmental interest, i.e., clarifying the nondiscrimination 
rights of pregnant workers. Lower courts have ruled that 
nondiscrimination laws and policies serve a compelling 
governmental interest with respect to RFRA claims.\44\ After 
likely meeting this burden in a case brought under H.R. 2694, 
the federal agency or private plaintiff would next argue H.R. 
2694 is the least restrictive means to further this interest. 
It is unclear at best whether a religious organization raising 
RFRA as a defense will be able to overcome these arguments in 
federal court. Indeed, Mr. J. Matthew Sharp, Senior Counsel 
with the Alliance Defending Freedom, noted in his testimony at 
a hearing on RFRA before the Committee on Education and Labor 
on June 25, 2019, that courts rule in favor of the federal 
government and against those attempting to be free of a 
substantial burden on their religion in over 80 percent of RFRA 
cases.\45\ To ensure religious organizations are not forced to 
violate their faith in complying with H.R. 2694, the bill 
should include the CRA's provision limiting the application of 
the Act with respect to the religiously based employment 
decisions of religious organizations.
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    \44\See, e.g., EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 
F.3d 560, 592 (6th Cir. 2018) (``EEOC's compelling interest in 
eradicating discrimination''), cert. granted on other grounds, R.G. & 
G.R. Harris Funeral Homes, Inc. v. EEOC, 139 S. Ct. 1599 (2019); Hsu v. 
Roslyn Union Free Sch. Dist. No. 3, 876 F. Supp. 445, 462 (E.D.N.Y. 
1995) (compelling interest in ``eliminating and preventing'' 
discrimination), aff'd in part, rev'd in part on other grounds, 85 F.3d 
839 (2d Cir. 1996).
    \45\Do No Harm: Examining the Misapplication of the ``Religious 
Freedom Restoration Act'': Hearing Before the H. Comm. on Educ. & Lab., 
116th Cong. (June 25, 2019) (written statement of J. Matthew Sharp, 
Senior Couns., Alliance Defending Freedom, at 5) (citing Lucien J. 
Dhooge, The Religious Freedom Restoration Act at 25: A Quantitative 
Analysis of the Interpretative Case Law, 27 Wm. & Mary Bill Of Rts. J. 
153, 193, 198 (2018)).
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                          REPUBLICAN AMENDMENT

    Committee Republicans offered one amendment during the 
Committee markup. This substitute amendment offered by Ranking 
Member Foxx included Chairman Scott's ANS in its entirety and 
simply added language incorporating the religious-organization 
protection from the CRA. Ranking Member Foxx's substitute 
amendment acknowledges the improvements made to H.R. 2694 in 
the Scott ANS, as discussed above. Although the Scott ANS is 
not the bill Republicans might write given a blank slate, its 
improvements provide sufficient clarity to pregnant workers and 
employers regarding their rights and responsibilities under 
H.R. 2694 with the exception of the omission relating to 
religious organizations. All Committee Republicans present 
voted for the amendment, but all Democrats present voted 
against the amendment.

                               CONCLUSION

    Committee Republicans strongly believe workplaces should be 
free of discrimination, and pregnant workers deserve 
protections against workplace discrimination. Committee 
Republicans have long supported workplace protections for 
pregnant workers, including those in the PDA and ADA. To 
address circumstances in which pregnant workers may not be 
receiving reasonable accommodations from employers, Committee 
Republicans support the provisions in the Scott ANS as a 
compromise measure that includes sufficient clarity regarding 
the bill's application to workers and employers. However, the 
omission of a protection for religious organizations, which is 
a longstanding part of the CRA--the nation's flagship civil 
rights law--must be addressed so that religious organizations 
are not faced with a conflict between their faith and the 
requirements of federal law. Committee Republicans stand ready 
to continue working with Committee Democrats to find a 
bipartisan agreement on this outstanding issue.

                                   Virginia Foxx,
                                           Ranking Member.
                                   Glenn ``GT'' Thompson.
                                   James Comer.
                                   Russ Fulcher.
                                   Ben Cline.
                                   Daniel Meuser.