Last week the Equal Employment Opportunity Commission issued proposed rules to implement the Protecting Pregnant Workers Fairness Act (PWFA), which became effective in June, and establishes a long-overdue national requirement for employers to provide workplace accommodations to protect pregnant workers. Under the new law, employers must provide “reasonable accommodations” to pregnant and postpartum employees, which may include leave for medical appointments, more flexible breaks and work schedules, and allowing workers to have water or food if otherwise prohibited. But the United States has a ways to go before working parents are truly protected in the workplace.
PWFA’s passage marks a major win for advocates who, for decades, have made the case locally, at the state level and nationally that the failure to accommodate pregnant workers in offices, warehouses, storefronts and beyond amounts to discrimination of a protected group. Employers who fail to meet these new requirements can expect new liabilities and legal action.
Although PWFA is an important step in the right direction, working parents continue to lack protection. Any parent of young children knows the incessant ballet of getting the kids to and from school, after school, day camp, grandma’s house or friends’ houses all while juggling work and other grown-up obligations. This highly-coordinated dance is so fragile it may as well be done on a tightrope: One slight breeze (a cold or all too normalized COVID case, however mild) or school closure can bring the whole thing crashing down. It is even more complicated for the 82% of employed Americans who care for young children as well as elderly parents.
At no time was this vulnerability more clear than during the early days of the pandemic, when millions of Americans were suddenly working from home, parenting full time, and forced to play the role of teacher simultaneously. Coordinating care for ailing parents, sometimes across the country, created even more complications. Even as daycares and schools reopened, frequent closures due to COVID outbreaks plunged families — and often working moms, especially — into that limbo yet again.
Because the vast majority of employers in the United States do not provide paid time off to take care of a sick child or other family member or for other caregiving responsibilities, nor are they required to do so under federal law, most workers can be fired for missing work due to these familial responsibilities. Similarly, under federal law, employers are not required to accommodate familial responsibilities in other ways such as providing flexible or modified schedules. This lack of protection disproportionately impacts people of color, women and LGBTQ+ folks, who are most likely to be impoverished, as a result of caregiver discrimination. Additionally, as caregiving responsibilities typically falls to women, they are more likely to be penalized in their careers because of these responsibilities, and the lack of protection exacerbates the gender gap. For example, women may lose pay as a result of requiring leave, may not ever reach their full earning potential, may lose out on promotion opportunities, or may drop out of the workforce entirely because an employer need not accommodate their childcare responsibilities.
Some caregiver discrimination cases overlap with other forms of discrimination, including on the basis of sex, but workers with caregiving responsibilities do not have the defined protection they deserve and many fall through the cracks. The Family Medical Leave Act can apply for some workers, but even that has its limitations and doesn’t require that the leave be paid.
If Congress is serious about protecting working parents — and ensuring families can maintain economic stability — our leaders in Washington should expand labor protections for family caregivers. Some states and localities have expanded protections with success. For example, the D.C. Human Rights Act explicitly prohibits discrimination on the basis of “familial status” and “familial responsibilities.” Specifically, under the D.C. Human Rights Act, an employer cannot take adverse action against an employee based on their “state of being, or potential to become, a contributor to the support of a person or persons in a dependent relationship.”
As an employment attorney and parent, I have seen firsthand how family responsibility discrimination is harmful not only for families and the employee, but the employer as well. I have represented a number of highly talented mothers who have been terminated from their positions because employers held stereotypical beliefs about what they should, or should not, be able to do as working mothers. Employers lost valuable employees because they viewed the need for leave to take children to doctor’s appointments or care for their sick kids as unreliable attendance.
While the PFWA is a good step in the right direction, we must continue to build on that work. Given the current lack of economic stability for so many families, workplace protections for caregiving workers will be essential to keep families safe, fed and housed and, in the long term, to achieve true equality in the workplace.
Cori Cohen is a partner at Gilbert Employment Law.