Why the Pregnant Workers Fairness Act still hasn’t passed

For the last decade, Dina Bakst has fought for a federal law that would help protect pregnant workers. When Bakst published a New York Times op-ed in 2012 about pregnancy discrimination, it inspired legislation called the Pregnant Workers Fairness Act, which was first introduced in Congress that year. The bill was intended to address a loophole in disability and discrimination laws by requiring employers to provide reasonable accommodations to pregnant and postpartum workers.

But the Pregnant Workers Fairness Act has languished in Congress over the last 10 years, despite bipartisan support and the efforts of A Better Balance—the national nonprofit Bakst founded in 2006, which has been a leading advocate for the bill. It was reintroduced after each new Congress was convened until, in a long-awaited win, the bill eventually passed in the House in September 2020. When the Senate failed to bring the bill to a vote before the end of the legislative session, it was reintroduced and passed in the House yet again last spring.

Bakst and other advocates know this is the moment to make real movement on this legislation, especially against the backdrop of an ongoing pandemic, childcare crisis, and formula shortage—not to mention the fallout from overturning Roe v. Wade. “Our Senate sponsors have been trying for the past year to pass the Pregnant Workers Fairness Act through various vehicles,” Bakst says. “But those efforts have not succeeded. And it is now clear that the only option is to bring the bill to the Senate floor for a vote.”

As Senate majority leader, Senator Chuck Schumer has the sole power to hold the vote; advocates have been lobbying both behind closed doors and through public demonstrations in New York. “Congress has not been able to deliver it, and we’re tired of not being prioritized,” Bakst says. “We know that Senator Schumer is supportive, and we very much appreciate that support. But support is not enough. We need a vote now.” (Schumer’s spokesperson did not respond to a request for comment.)

There is overwhelming support for the Pregnant Workers Fairness Act, which could especially benefit those in low-wage, physically demanding jobs. (In 2018, women accounted for about 64% of these jobs, according to the National Women’s Law Center, with women of color overrepresented compared to their share of the overall workforce.) Recent polling by the think tank Data for Progress found that at least 89% of voters support the Pregnant Workers Fairness Act. The bill has long had bipartisan backing—and enough votes to pass—and over the years, A Better Balance has secured broad support for it, pulling together a coalition of advocates across healthcare and labor, along with faith leaders and even the business community. (Groups like the U.S. Chamber of Commerce are in favor of the bill because it would more clearly articulate expectations for employers.) More than 30 states and localities have already passed a version of the bill, so the Pregnant Workers Fairness Act would simply extend those protections nationwide.

Advocates also know all too well that getting the law enacted is only half the battle. In a recent analysis conducted by A Better Balance, pregnant workers were found to have been denied accommodations in more than two-thirds of cases, in part due to the high standard set by existing laws like the Pregnant Discrimination Act. A Better Balance frequently receives calls from workers across the U.S. seeking help because an employer won’t adequately accommodate their needs, or looking for advice on what protections they’re entitled to under the law. Many of those workers are living in states that have already passed laws protecting reasonable accommodations, Bakst says, and the differences across states can be stark.

“I wanted to have this law passed—especially during the pandemic—a year ago,” Bakst says. “So we could be in the place of: How do we do the best outreach and education we possibly can, to make sure that our [pregnant and] postpartum workers understand their rights? These are just not words on paper . . . Laws are only meaningful [if] workers understand their rights and feel like they [can] take advantage of them.”

From a political standpoint, the Pregnant Workers Fairness Act should, in theory, be an easy win for the Democrats at a time when the party has been unable to pass paid leave legislation or other basic protections that would benefit women in the workplace. In June, the Senate failed to pass the Pump Act, which would have provided breastfeeding accommodations to more than nine million nursing parents. (Bakst notes that while the Pump Act also has bipartisan support, it still faces some opposition from lobbyists for the airline and railroad industries.) And if there weren’t enough urgency to move the bill forward prior to 2020, the pandemic has put an incredible spotlight on the untenable working conditions women and people of color face.

“We always talk about how mothers [and women] are so good at multitasking,” Bakst says. “Well, the Senate should multitask, too, and pass this urgently needed legislation to help millions of families put food on the table and take care of their health.”