Transcripts For CSPAN3 Hearing On Pregnant Worker Rights 20240713

The committee on education and labor will come to order. Hello, everyone. I note that a quorum is present. The committee is meeting in a legislative hearing to hear testimony on hr2694 the pregnant workers fairness act. I note for the committee that miss mcbath and mr. Cohen of tennessee are permitted to participate in the hearing. Members who sit on the subcommittee and are present shall have First Priority to ask questions followed by members who sit on the full committee and present and only after all Committee Members who are present have gone, shall members who are not on the committee of education and labor ask questions. Pursuant to the committee reel 7c, the Opening Statements are limited to the chair and the Ranking Member to allows us to hear from the witnesses sooner and provides all members can adequate time to ask questions. I recognize myself now for the purpose of making an opening statement. As a mom and a policymaker, i know how important it is to protect the Economic Security of pregnant women and working families. Unfortunately the current laws are inadequate, and the workers are placed on unpaid leave or not accommodated with a simple adjustment to keep their job during pregnancy. We are holding a legislative hearing on the pregnant workers fairness act. And this bill is going to take a step to make sure that pregnant women have a reasonable accommodation to stay in the workpla workplace. I would like to witnethank the witnesses being here to tell us what consequences they face when not provided accommodations. I want to thank the lead sponsor of the bill senator jerry nadler. Women will be pregnant at some time in their employment. And women are also breadwinners of the household and as a result more pregnant women work later into the pregnancies, and in fact, Research Suggests that more than 80 of the firsttime mothers will work until the final month of pregnancy and i know that i did. Pregnant workers may need reasonable accommodations to protect the health of both mother and baby. The reasonable accommodations can range from providing seating, water, light duty to excusing the workers from tasks that involve dangerous substances. They dot no need nor are they complicated or costly, but when the pregnant workers do not have access to the reasonable Workplace Accommodations, they are often forced between the Financial Security and the pregnancy, and the consequences can be devastating to their health and security. It is also important to note that women of color are overrepresented in lowwage physically demanding jobs and they are therefore disproportionately not given accommodations. Congress first agreed that pregnant women should have fair and equal treatment in the workplace when they passed the pregnancy discrimination act. The law clarified the discrimination against the pregnant workers is discrimination of sex under title vii of the Civil Rights Act of 1964. They would treat other workers as they would other impaired workers. Yet after the passage of the pregnancy act, the federal law is falling short of ensuring that the women have reasonable accommodations. Under the current law, the worker must show that the employer similar ly lly accommo other similar employees. And so even in the Supreme Court decision of young versus u. P. S. Which affirmed the workers rights of reasonable accommodations under the pregnancy discrimination act has not provided the workers or the businesses the Legal Certainty they need. Since young versus u. P. S. Approximately 70 of the courts have denied reasonable accommodations for pregnant workers. They continue to suffer discrimination at an alarming rate. According to the 2012 survey, more than 50 of workers have seen pregnant discrimination on the job. It can be losing a job or denying a promotion. To ensure they have a reasonable accommodation in the workplace is a crucial step to eradicating the discrimination, and without the federal protections of the workers several states from across the geographic political spectrum have taken place to fill the void. My home state of oregon is one helping to lead the way, and earlier this year, they hope to pass the bipartisan bill to provide reasonable accommodations with applications for related to childbirth and medical communication, if it is posing a undue hardship, and as of this month, 27 states and the district of columbia have allowed states with more than 15 employees to avoid accommodations, and bringing the certainty to businesses and costly disputes and importantly keeping the women safely on the job. And without a federal benchmark, the employers are left with a patchwork of laws to provide strong protections for some, and no protections for others. We have to make sure that others will provide reasonable accommodations in the workplace. That is why we are here today. This bill would establish a reasonable accommodation to the pregnant workers and to guarantee they would receive those accommodations without receiving retaliation in the workplace. This is an opportunity for congress to fulfill the promise that the pregnancy discrimination act and take an important step of gender Workplace Equity and the healthy pregnancies and the Economic Security of all parenting women and their families. I welcome this opportunity to work with my republican colleagues to mo thve this bill forward in a bipartisan manner. I would like to enter this from the International Union of teamsters and other 100 stakeholders in support of the fairness act, and so now i yield to mr. Gomer for opening statement. Thank you madam chairman. I want to welcome all of the witnesses here today and including my friend and kentuckian iris wilbuwilbur. Kentucky has been long in agreement that discrimination of any type should not be tolerated and no one should be denied an opportunity because of unlawful discrimination. That is why there are important protections under the law to prevent discrimination and including federal laws to protect pregnant workers. The americans with disabilities act prevents this discriminat n discrimination, and the pregnancy workers act outlaws discrimination, and a Supreme Court ruling said that employers must treat pregnant workers equally and fairly, and states including my state kentucky has passed laws to protect the pregnant workers. The equal Employment Opportunity commission has stated that ada requires employers to accommodate pregnancyrelated limitations. The republicans in congress have long supported meaningful and clearly defined protections for the pregnant workers to ensure they are not unlawfully discriminated against as it relates to pregnancy, childbirth or medicallyrelated conditions. We should promote policies in washington to allow a Strong Family and families to flourish and protect life at all stages. The purpose of americas nondiscrimination laws and the agencies enforcing them is to give all americans equal opportunities to succeed. That being said, overzealous Government Intervention causes more harm than good, and while we are committed to preventing and combatting the unlawful discrimination, and we should carefully examine legislation that could cause confusion and difficult to implement. We should prioritize the discrimination policies that are to qualify for job creators to flourish, and americas workplaces can be free from discrimination. The committee should review and evaluate the laws that are on the books that provide protections for the workers as well as the specific provisions of hr2694 before advancing legislation that could have unexpected consequences. The hearing today is a starting point in this regard. Bottom line, the pregnant workers should be protected and reasonably accommodated in the workplace. So ill look forward to hearing from the Witnesses Today as we examine the pregnant workers fairness act. Madam chair, i yield back. Thank you. Without objection, all other members who wish to insert the written statements into the record may do so by submitting them to the Committee Clerk electronically in a format. And congressman nad ler is the chairman of the House Committee on the judiciary and more than 30 years chairman nadler has been on the front lines for the fight for civil rights and a relentless defender of the countrys fundamental promise of equality for all. And congressman nadler has been playing a significant role in the rights of others and also in the reauthorization of the violence against womens act and he is the authorization of the fairness act and we appreciate the witness to be here today and look forward to the testimony. Let me remind the witness that we have read your record and it is pursuant to the Committee Rule 7d to limit your testimony to five minute, and before you begin, remember to press the button on the microphone in front of you, and as you begin to speak, it is going to be green and then it will turn to yellow when it is one minute to remaining and when it is red, your five minutes have expired and we ask that you wrap up. I now recognize chairman jerry nadler for the testimony. Thank you, chair bonamicci, and to talk about my fairness act, and this hearing as the title indicates is long overdue, and pregnancy discrimination is not a new issue, and as long as women have been in workforce, they have been fired, passed over for hiring and had the work cut back or forced out on leave when they were pregnant or started a family. In the last six months we have seen the multiple media reports of workers forced off of the job while pregnant because they needed a simple fix. Pregnancy is not a disability, but sometimes due to complications or even in the healthy pregnancies, workers need a reasonable accommodation such as a stool or limited contact with chemicals or reducing the amount of lifting. These accommodations are short in duration and provide little to provide. For millions of pregnant workers they are critical. A simple accommodation can be the difference of forced out of a job and forced out on lead, and losing paychecks and putting the pregnancyt a risk. And so there is an effort to stop employers from treating the pregnant employees this way. The law prohibited discrimination of childbirth or related conditions. Over the past 40 years, the courts have interpreted it to be treating the nonemployees well, you have to treat the pregnancy employees well and the inverse is true. If you treat the pregnant employees terrible, you have every right to treat pregnant employees terribly. The Supreme Court attempted to address how the pregnancy discrimination act was to work with the courts decision, but it only exacerbated the problem in the end. In young versus u. P. S. They found that a reasonable accommodation, the employer accommodated similar employees with the similar ability to not work. That test is a huge burden on the pregnant workers to require them to have medical knowledge of every other employ, and their need for accommodation is just as valid as the male counterpart who for example had a hernia. There is no way to get that information and prove the case. That is why a recent report from the better balance found that coincided with twothirds and the burden that it is facing on other women is insurmountabilli other bills have been introduced including last week of ms. Wahlberg and mr. Wagnor and this is the young test that if they must accommodate some employees they must do it in other ways and i am happy to make sure that pregnant workers receive the accommodations that they need to stay on the job, but the problem with young is that they require the pregnant workers to prove they have been discriminated againgainagainst in order to re accommodations. That is why i introduced the act. The bill is simple and has a referral to accommodation rather than relying on the model of discrimination. Using model of the ada and it is to provide reasonable accommodations to the workers as long as it is not imposing a undue hardship of the employer, and those are available for the childbirth or other related conditions including lactation. The courts know how to interpret that language. Three decades of the case law to guide them. The employers have similarly worked with the ada for decades and know exactly what the responsibilities will be, but most importantly, the women will have the certainty they can safely stay on the job as long as they choose during the pregnancy and keep their pay schpa paycheck and Health Insurance throughout. We have seen it to date where 27 states have passed the pregnancy accommodation laws in relation to the fairness act, and states like new york, and nebraska and kentucky and others have passed legislation to accommodate pregnancy in a bipartisan area. Today, it is supported by a broad range of labor, health, business and womens rights organizations. Thank you for chairman and rankk member geme comber, and i will forward to working with this committee to move this critical piece of legislation forward. Thank you, chairman nadler and thank you for testifying before the committee today and it is a valuable piece of the record. We will now seat the second panel. Thank you. Thank you for the smooth transition. And now our witnesses for the second panel. Kimberly Michelle Durham from alabama, and she made the trip here to washington, d. C. , to share her story and formerly an emergency medical technician in alabama, she was forced a off of the job when she became pregnant. Next is iris wilbur joined greater louisville, inc. The Metro Chamber of commerce in 2016. She serves as their Vice President of Government Affairs and Public Policy. In her role, she works on policy and legislation at the local, state, and federal levels to help advocate for the regions Business Community, and miss ellen mclauk lyghlin is a membe the labor and fair act department, and she is engaged in employment practice. And ms. Dena is cofounder of a better balance a leading National Legal Advocacy Organization head quartered in new york city and a better balance is dedicated to advancing the rights of working families and promoting fairness in the workplace and helping the workers across the economic spectrum to care for themselves and their families without risking Economic Security. We appreciate all of the witnesses for being here today and we look forward to the testimony. Let me remind the witnesses that we have read your written statements and they will appear in full in the hearing record. Pursuant to Committee Rule 7d and committee practice, each of you is asked to limit the oral presentation to a fiveminute summary of the written testimony. Let me remind you that pursuant to title 18 of the u. S. Code section 001 it is illegal to knowingly or willfully falsify any material to congress or conceal a material fact. Before you begin your testimony, please remember to press the button of the microphone in front of you. As you speak, the light in front of you will turn green and after four minutes lit turn yellow to signal one minute remaining and when the light is red, your five minutes have expired and please wrap up the testimony. We will let the entire panel to make their presentations before moving to questions. When answering questions, please turn on the microphone. And ms. Durham, you are recognized for five minutes for your testimony. Good morning. My name is Michelle Durham and im a mom from alabama. I wanted to thank the congresswoman and congressman and the subCommittee Members for having me here. I have lived my whole life in alabama and yesterday was the first time i have been on a plane. It is scary, but i was glad to make the trip, because i wanted you know what happened when i became pregnant four years ago. They say that pregnancy is supposed to be a time of ham piness, but mine was full of anxiety and fear, because i was sent home without pay by my employer right when i needed a paycheck the most. In march of 2015 when i was 22 i began working for Rural Corporation in gadston, alabama. I was an emt, and the first job after getting my certificate and i was excited to work. The plan was to gain experience and save up so i could continue my training and eventually become a paramedic. After i started to work with rural metro, i learned that i was pregnant with the first child and then i learned that i should not lift anything above 50 pounds, a standard patients which weighed 100 pounds without a patient on them, i knew i would would have to ask rural mel tomorrow to temporarily reassign me. I knew rural metro had a policy of giving light duty jobs to emts when they have problems like back injuries. I also knew they had dispatcher jobs available. I was very wrong. My manager told me the company only gave light duty jobs to emts who were injured while working. He told me my only option was to take an unpaid leave of absence. The Hr Department packed him up and told me i had to go home. I was shocked. I wanted to work. I loved my job. I really wanted to be an emt and i needed my paycheck. All i could think about was how i was supposed to live for six months without income of any sort. How was i supposed to prepare for my son to come home. I was afraid for him and for me. I soon realized i needed help and i called a lawyer in birmingham, heather leonard. She contacted the company and told them what they were doing was illegal. Rural metro never even responded to her. After that we went to the eeoc and then to court. My experience in the court system has been tough. The judge ruled against me and my case is on appeal. Ive got the aclu helping me and im very grateful for them. The truth is i didnt want to hire a lawyer and go to court. I wanted to keep working. After rural metro forced me to take leave in september of 2015, i was unemployed for seven months. I couldnt pay my rent. I had to move back home with family. I was excited about meeting my knew baby but his birth was terrifying. I was worried how to provide for him and i racked up a lot of credit card debt. I actually still have a hospital bill from when i gave birth to him in march of 2016 because i didnt have health coverage. I eventually found a job in a factory. It didnt come with over time or benefi benefits. I later had to take a second job in a Fast Food Restaurant to help pay my bills. Recently ive had to change jobs again and now am a manager of a pet store. I still dont have Health Insurance. My son is on medicaid. My son is 3 and he is my gre greatest joy. I wouldnt trade being his mom for anything. Ill never get back those months before he was born and after, when all i could think about was what i was losing while i was pregnant. The worry and the fearment i Hope Congress passes the pregnant workers fairness act. Employers should not be able to just say know when a pregnant worker asks for a temporary change. They should have that right to work it out. Please use your power to help pregnant workers take care of themselves, their babies and their families. I want to thank you for listening to my story today. Thank you so much for your testimony and for making your first plane trip here. Were glad you did. I recognize ms. Wilbur for five minutes for your testimony. Good morning. Im iris wilbur and i represent greater louisville, inc. , the Metro Chamber of commerce. Thank you chairman bonamici, Ranking Member comer. Today we live in a world where businesses need every person who can work participating in the labor force. On behalf of our 1,70plus small, medium and Large Size Companies our chamber represents, this is the most pressing topic among our membership. We must do what is necessary to attract and retain employees and sometimes that means working around their personal situations like pregnancies. This is particularly true for the 58 of women in kentuckys labor force who are of child bearing age. Businesses also want healthy workforces, especially in kentucky where health care is a major industry. Health care is a female dominated sector. We not only want to retain women workers but we want to keep them healthy and advancing in their careers. Over the last year gli helped past kentucky legislation called the pregnant workers act, a law designed to help combat discrimination and plo moat womens labor force participation. What we discovered among our membership was that most Large Company Hr Departments had the resources to stay current on changes in the law, but many small to Midsized Companies were forced to navigate complex circumstances like pregnancy and related medical conditions without the aid of a robust Hr Department or inhouse counsel. We saw an opportunity to search for a solution and prevent problems before they start and found the state proposal to be a strong probusiness bill that will have a positive impact on kentuckys economy. The kentucky law parallels the proposed pregnant workers fairness act and it applies to employers with 15 or more employees and how provide accommodations unless it constitutes an undue hardship for the employer. The kentucky law provides businesses with guidance about when an employer is and is not obligated. Our pro business pro workforce bill not only earned endorsements from the kentucky chapters of march of dimes, united way, fraternal order of police and nurses association, but passed with overwhelming bipartisan support in the General Assembly with 80 of our legislators voting yes and signed into law. It was championed by senator kerr with bipartisan cosponsors. We still need the federal bill. The ability to have uniformly related to these accommodations throughout the country is important. This is why we urge congress to take action. Just like the kentucky law, the much needed clarity outlined in the pwfa wills the potential to resolve requests quickly and informally and reduce the potential for costly litigation. We believe that the act will lead to reduction, nonincrease in litigation for precisely this reason. At least two states with these laws have reported redurks in litigation since these laws went into effect. For our members, uncertainty means dollars, a consistent and predictable leland scape means a business friendly vierpt. Before kentuckys law was enacted, our employers were forced to navigate complex web of federal laws to figure out their obligations. Additionally, the act will help boost our countrys workforce Participation Rate among women. In states like kentucky which ranks 44th, we know one contributor to abysmal statistic is a pregnant worker who is forced out or quits a job due to a lack of reasonable Workplace Accommodations. By laying the groundwork for an informed dialogue between employers and employees women can continue working safely and productively throughout the course of a pregnancy and afterwards. Finally the act includes pro business safeguards to ensure these accommodations wont cause financial arms. While most pregnancy are low cost, stool to sit on, access to water to stay hydrated or a modified work schedule like the ada, it includes an undue hardship standard that would exempt employers if the accommodation would cause significant difficulty or expense. Theres a clear bottom line here. The act is pro business and pro workforce. Gli urges congress to pass the pregnant workers fairness act. Thank you. Thank you for your testimony. I recognize ms. Mclaughlin for five minutes for your testimony. Thank you, chairman bonamici, Ranking Member comer and members of the subcommittee. Thank you forgiving me the opportunity to testify here today on the pregnant workers fairness act. My name is ellen mclaughlin, a partner in the law firm of siefer shaw. Today i testify on my own behalf. Ive practiced exclusively in the employment arena for over 38 years, defending employers before administrative agencies as well as in state and federal courts, a significant portion of my practice is dedicated to providing advice and counsel on accommodation and leave issues. I have coauthored comments to the eeocs proposed regulations to the ada as well as the amendments act. I also coauthored comments to the proposed regulations back in 2008 and even this year when dol has proposed using new forms. Finally, in june 2011, i was one of two management attorneys in the country invited by the eeoc to testify at a public hearing on the issue of leave as an accommodation. The purpose of my testimony is not to take a position on this bill, but rather to briefly describe the protections currently afforded workers who are pregnant and raise questions i hope the subcommittee will consider regarding the proposed legislation. There are three primary laws at the federal level affording protection to pregnant workers, the pregnancy discrimination act which provides an employer violates title vii if it intentionally discriminates against an employee due to their pregnancy. If a worker is temporarily unable to perform her job duties due to a medical condition related to that pregnancy or childbirth, the pda mandates an employer must treat her in the same way as it treats other temporarily disabled employees. The ada amendments act broadened the definition of disability such that pregnancyrelated restrictions may constitute a disability, thus triggering the employers duty to reasonably accommodate and federal Court Decisions have specifically held that pregnancy related medical conditions are disabilities. The fmla provides a pregnant employee can take 12 weeks of job protected leave in a 12month period due to pregnancy, including on an intermitt tent basis. State laws, approximately 25 of them, i guess 27 now, that do provide protection. But they have varying definitions of what a known limitation is ranging from new yorks law that references inhibiting the exercise of a normal body function to the illinois law, my home state that references any medical or common condition that relates to pregnancy. Its against this existing leland scape that we have this present bill that talks about mandating reasonable accommodations to the loan limitations related to pregnancy absent undue hardship. But the phrase known limitations is not defined in the bill. It is clearly different than the definition of a covered disability under the ada. While the definition of the disability under the ada may not be perfect, it has been interpreted by courts over a period of years, and employers are familiar with its standards. Given the bills language, it appears that any limitation of any type for any duration may be covered as long as the employer is aware of it. The bill also does not address another key provision from the ada which is a reasonable accommodation statute and that is essential Job Functions. Under the ada, an employer need not provide the accommodation when an employee remains unable to perform the essential functions of the job even with the accommodation. By limb nalts the essential function criteria, the bill appears to require that employers keep the employee on the job regardless of their ability to continue to perform the core functions. Finally the bill does not address other key issues that are explicitly addressed by the ada such as not including a defense that an employee may not pose a direct threat to the health and safety of themselves or others. And it is also unclear as to what happens if the accommodations sought by the employee creates an undue hardship and whether the employer would then be able to put the employee on leave. In conclusion, i believe the legislation does not address some key issues and questions that are important, especially the lack of a definition for its most fundamental term, known limitations, and the lack of any reference to essential Job Functions. I believe the issues i have raised are appropriate as this Committee Works through this legislation and considers the purpose and practical effect of this bill on the already complex matrix of federal and state laws on this subject. Thank you. Thank you for your testimony. I now recognize ms. Bakst for five minutes for your testimony. Thank you, chair bonamici, Ranking Member comer and members of the subcommittee for the opportunity to testify today. Almost 41 years ago Congress Passed the pregnancy discrimination act to guarantee equal opportunity for working women. Pregnant women in this country are still often treated as second class sit scenes. Pregnancy drem see remains a key barrier to gender equality. One common form impacting women in low wage and physically demanding jobs, predominantly women of color is when theyre fired or forced out rather than provided temporary job modifications to allow them to keep working. Women face an impossible choice, stay on the job and risk their health or lose their paycheck when they need it most. Weve heard hundreds of stories over the years. Women like cardona, a cashier from upstate new york who was told she should, quote, stay home, take care of her pregnancy and rest after handing in a note with a lifting restriction even though she could easily have been accommodated. She wound up homeless and had to rely on family and friends, moving from couch to couch as she prepared to become a mom. The economic wellbeing of most American Families today is dependent on working mothers. When women lose out on critical income, they forfeit longterm benefits earned on the b jo, contributing to their economic inequality and exacerbating the wage gap. When pregnant women are denied Workplace Accommodations, their health suffers, too. One pregnant cashier was told she could not carry a water bottle on the job. She wound up in the er due to severe dehydration after fainting and collapsing on the retail floor. Other health risks include urinary tract infections, fainting, predetermine birth, low term birth weight and even miscarriage. These options, risk your health or lose your paycheck, reenforce the stereotype that pregnancy, motherhood and employment are r irreconcilable and defy the purpose of the pregnancy discrimination act. Five years ago the Supreme Court addressed it. The framework established by the courts majority and the unique burden it places on workers, to prove employers intention was discriminatory has made it difficult and often impossible for pregnant workers to succeed in work and get the accommodations they need. This standard is tone deaf to the realities of the workplace where pregnant workers lack access to the worked place accommodation requests, personnel files and lack the luxury of time and certainly the resources to sort out these questions. The ada offers workers with disabilities the explicit right to accommodations absent undue hardship. They can completely by bass this burden of proving that a coworker was accommodated first. There is a solution. The bipartisan pwfa would address the gap in the law and full ffill the intent. Unless the requested accommodation would impose an undue hardship. The same familiar process in place for workers with disabilities. The pwfa would ensure a, woulder cannot be forced to take leave is another employee can keep a working and health aid rather than stressful and time consuming litigation. As we know firsthand, this is precisely what most pregnant women need and want. They need clear rights and an immediate solution to stay that allows them to follow their Doctors Orders and stay attached to the workforce. Requiring a pregnant worker to jump through legal hoops to get a medically necessary accommodation is a fundamental deterrent to justice and equality. State legislators on both sides of the aisle have recognized accommodating pregnant workers is smart Public Policy and are taking action. There are 27 states from new jersey to kentucky that provide it. At abb we see the laws are, woulding. For example, thanks to new jerseys law a Public Employee was quickly able to follow her Doctors Orders and return to work in a light duty position. While states have improved workplace conditions for thousands of women, it should not depend on luck or location. The pwfa would ensure pregnant workers in every worker in the country stand on equal footing in the workplace. No one should have to choose between her job and healthy pregnancy. Its time for congress to step up and pass this critical legislation. Its long overdue. Thank you. Thank you for your testimony. Under Committee Rule 8a we will question witnesses under the fiveminute rule alternating between the parties. I recognize myself for five minutes. Ms. Durham, i understand that you demonstrated to the court that your employer was accommodating your simply situated coworkers with similar restrictions but didnt offer the same accommodations to you while you were pregnant. What did you think, how did you feel when you learned that even though you proved that others got accommodation, it wasnt enough for you to win your case . Honestly, it felt very discouraging, felt like it was a misunderstandings which is why i contacted the lawyer in bir ming hang. The original intent was to send them a letter to hopefully clear this up because it really did just seem like it was a big misunderstanding. They were already accommodating others who had restrictions. Ms. Bakst, is ms. Durhams experience common and wowal would the act address issues she faced in court . Unfortunately its all too common. In our recent report long overdue as you mentioned earlier, we found that in over twothirds of cases pregnant workers are losing their accommodation cases. In over 70 of the cases theyre losing the cases because theyre unable to identified a similarly valid compare tore or comparer at all. Thats a real barrier to equality and justice for pregnant women. Another woman named cassandra, she worked part time loading and unloading boxes in tennessee. She requested light duty also per her Doctors Orders. And the company pushed her out on unpaid leave. She presented the court a spreadsheet of 261 other employees that were provided light duty and also pointed to a coworker that was provided light duty. The court rejected this evidence since the spreadsheet didnt have detailed information about other employees ability to work. So, therefore, they were insufficient compare tors. This is an insurmountable and extraordinarily difficult burden for a pregnant worker to meet. Thank you. Ms. Bakst, i want to follow up on some testimony from ms. Mclaughlin. In her testimony she expressed concern about the pregnant workers fairness act, use of the term known limitation. She stated the phrase known limitations is different than a covered disability under the ada. I wonder if you can take a minute and respond to that concern and what pregnancy related impairments or disabilities have the courts deemed not covered under the ada or the ada Amendment Act . How would the pregnant workers fairness act address this . Sure. To take the first question, i would say yes. The intent of the pregnant workers fairness act is precisely to ensure coverage for pregnant workers with limitations or medical needs stemming from qualify that dont qualify as covered disabilities under the ada. Those limitations that could jeopardize a pregnant Workers Health arent deemed disabilities yet. Thats why its not a covered disability under the ada. Please note that the pwfa borrows familiar standards from the ada like reasonable accommodations, undue hardship and the interactive process. So the fundamental nature of the law, the fundamental framework is similar, but covered disabilities, no, its not in the context precisely because those are the women that pregnant workers are often not found to have qualified disabilities. To answer the question, your next question about the ada and who is not covered, we have seen that courts interpret the ada, even though it was amended in 2008, and i will say there are a pool of workers lets say a worker with gestational diabetes, and there have been courts that ruled there are workers with pregnancy related complications that should be covered under the ada and they are. There are a lot we have reviewed that are not. Its quite alarming. For example, tonya oliver from pennsylvania had highrisk medical complications with triplets and needing surgery at the time of birth. The court said, no, the adaaa does not protect her. Sylvia went to the er while pregnant diagnosed with hyp hyperemesis and hyper coliam yeah. The court also said not a disability. Jennifer experienced severe complications and bleeding at work. In 2016 the court said she failed to show her pregnancyrelated condition constituted a disability under the americans with disabilities act. Thats unacceptable. Those women need to stay healthy and on the job. My time is about to expire. I wanted to thank ms. Wilbur for bringing the business perspective. That was part of the conversation when oregon passed the bill, too, the Business Community wanted that certainty. I dont have time for a question. Thank you for bringing that perspective. I now yield five minutes to mr. Thompson from pennsylvania for your question. Thank you, madam chair. Thank you, ladies, for being here. A really important hearing and topic. Ms. Mclaughlin, thank you for being here. Discrimination of any type should not be tolerated. I strongly support the federal laws that protect pregnant workers such as the pregnancy drim act and americans with disabilities act. Pda forbids discrimination based on pregnancy when it comes to any aspect of employment. Furthermore, the ada requires employers make reasonable accommodations for individuals who have a physical or mental impairment, substantially limits one or more major Life Activities. Major Life Activities include performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, walking, lifting or bending. While pregnancy is not an impairment itself, the ada covers things related to pregnancy such as walking, standing and certainly lifting. Under the ada, employers may have qualification standards such as physical, medical safety and other requirements that may negatively impact certain individuals. Is there a similar provision in hr2694 . No, there is not. What is the purpose of the ada provision . So under the ada qualifications standard would basically mean that you have a job standard that applies equally to everyone, but may have some sort of an impact on a protected group of, under the ada, disabled individuals. Then the Employer Needs to make certain that standard is job related and consistent with business necessity. By way of example, if you had a Police Department that required all of its officers to be able to respond to a forcible arrest call and perform those Job Functions, thats a very physical attribute and may have an impact on somebody who has a disability. Likewise, frankly, might have an impact on a pregnant worker who is unable to respond to their essential function of responding to a forcible arrest. So the qualifications standard is very much like the central Job Functions. Its just kind of a different way of putting it in terms of impact, but not included in this current bill. Hr2694 includes the term known limitations, as weve heard, related to pregnancy. How does the bill define known limitations . And this is one of my big concerns with the bill. Known limitations is not defined. So if it is going to be defined as not a disability, not a physical or mental impairment that substantially limits a major life activity, that is the ada definition, what is it . I really think employers need to know that so both the employer and Employee Community Going Forward understand what their obligations are. Are there any restrictions to these limitations . There are not. Outside this bill, is this a welldefined legal term . I think you can tell by the various definitions that all these states have used that it isnt. All the states use very different words to express what they mean by known limitation. At least as far as i know, it is not a term of art that is known by either the employer or the Employee Community. In the effort to prevent discrimination of pregnant workers which im always supportive of, does hr2694 improve clarity for protections of these employees, or does hr2694 in its current form . I think in its current form, its missing some key terms. Definition of known limitations, essential Job Functions, qualification standards. What if the pregnant worker is a direct threat in certain safety sensitive jobs to the health and safety of themselves or maybe to others . So i think because it could be improved, its not as clear as it could be. Once again, i really want to make sure that we do everything we can to prevent discrimination for pregnant workers. I think thats incredibly important. Its important known that we get it right. Im not sure hr2694 in its current form provides that type of clarity. Thank you, madam chair. I yield back. Thank youment i yield five minutes to dr. Slyer from washington for your questions. Thank you, madam chair. First, i would like to submit for the record a letter from the national infant women and inchant childrens act, wick. I had a high risk pregnancy complicated by advanced maternal age which i call elderly mom syndrome at age 40 and 24 years of type one diabetes. I worked until two days before my c section. This is because i was fortunate that my employer allowed for minor accommodations, very minor accommodations that allowed me to continue to work. We need to remember that women are half of our workforce. I would add to that that they tend to do better in college and are excellent at their jobs. 75 of those women will become pregnant at some point. It should be plainly obvious that we should support pregnant people just like affordable child care and public education. This is how we make our society better. In health care it is widely understood that preventive measures and addressing smaller issues before they escalate are a ways to lessen the cost of care. Hospital bills can cost between 5,000 and 11,000 for a regular pregnancy labor delivery, prus all the costs of preparing for and taking care of the baby. It costs all of us, when we dont that and a baby is born at 24 weeks and born in the nicu. It costs us all when a fetus is exposed to toxins in utero, a child that may not help for the rest of their life because we couldnt protect the mother from an unhealthy environment. Ms. Durham, my first question is to you. Thank you so much for sharing your story. Im so sorry for the pain and the anxiety and the Financial Hardship that you had to go through really unnecessarily. I also, as you heard, had a highrisk pregnancy. In your remarks you discussed how losing your job didnt just affect planning for the birth, but also for your plans to support your child long term. There are a lot of costs in pregnancies that arent related, car seats, diapers, doctor appointments, et cetera. What did you have to do to support your son since losing your job at rural metro . I have actually changed a lot of jobs recently trying to keep up with that pay and Everything Else i need to support him. Ive been very fortunate. I have a very good support system back home between my family and friends. Ive gotten several gifts and handmedowns and held in that department. It has been very hard. Child care in and of itself is expensive, even in my state where a lot of costs are lower. Its just been a rough trip. We take it day by day and we do what weve got to do to get there. Thank you. Ms. Bakst, thank you so much for your work to strengthen protections for pregnant workers. In your remarks, you stated twothirds of women have lost their pda pregnancy accommodation claim after the 2012 court case young versus ups. Accommodations are important. Heavy lifting the result in pre term births. Exposure to toxins can result in harm to the mother and fetus. Pregnancy induced hypertension can have devastating outcomes including Maternal Death. They used to say pregnancy was like having one foot in the grave. In your opinion, how will adequate accommodations improve life outcomes of the pregnant worker, and do you foresee a direct relationship between Maternal Death rates and pregnant Worker Protections . I think that time and time again we see how affording pregnant workers temporary modest accommodation serves to keep them healthy, maintain a healthy pregnancy and prevent complications down the road, keeping them out of the hospital, exacerbating Health Care Savings costs. As you said, a minor temporary accommodation, whether thats a stool, extra bathroom break, temporary relief from heavy lifting which, let me clarify, is not a disability, but is often something that a need that arises from pregnancy where women dont have a disability yet. But why should a woman have to risk her health and potentially develop a complication or qualified disability in order to trigger the laws protection. That does not it defies common sense in a world, in a time when were so concerned about Maternal Mortality and maternal health, specifically low income women, women of color where we know the problems are severe, we should be doing everything in our power to make sure these women can maintain healthy pregnancies and prevent complications before they start. Thank you all. I recognize the Ranking Member of the full committee, dr. Fox from North Carolina for five minutes for your questions. Thank you, madam chairman. I want to thank our panel for being with us today. I want to say that i worked when i was pregnant. Up to the very day i delivered my daughter, went to the hospital at midnight, actually went to class that night from 7 00 to 10 00 and went to the hospital at midnight. So i was very active up until the moment she was born. Ms. Mclaughlin, you discussed in your testimony the pregnancy discrimination act and americans with disabilities act as amended. Were these laws broadly written do cover a wide range of experiences and circumstances . In your opinion has the ada provided protections to pregnant workers . I do think both of these laws were very broadly written. The pda has very blood language about anti discrimination and how, again, most young and individual would prevent discrimination. The adaaa back in 2008 when it was amended, and i think its best said in a law review article i cited by jones c. Williams, a sip of cool water, pregnancy accommodation after the ada amendments act, a yale law review article, basically focuses on the fact that the amendments act pretty much did away with the duration requirement, and there is a specific reference to that in both eeoc guidance on pregnancy discrimination as well as regulation under the ada that says impairments of shortterm duration, under six months, can be impairments. You combine that with the expansion of the definition of major Life Activities to add more major Life Activities including bodily functions. And then finally, a more favorable and employee friendly substantially limits standard, you put all those together, and pregnant workers with limitations, even if they are of more shortterm duration are covered disabilities, and that is borne out by cases but certainly by the law as it exists. Thank you. I want to say from the very beginning, that i believe all members of congress, democrats and republicans want to see all workers protected from any harm that could occur to them, and especially pregnant women. I think our record proves that. Ms. Mclaughlin, hr2694 provides to loan limitations, pregnancy childbirth related, medical condition. Your testimony notes that the term known limitations is not defined in hr2694, in contrast to detailed definition of disability in the ada. If hr2694 is enacted, will either the eeoc or the courts or both have to define known limitations . Would there be more certainty for workers and employers if congress defined this key term in the bill . It would certainly be more beneficial for congress to define known limitations so that moving forward, as both employers and employees know their rights and obligations under this law, they know what that term means. While there is a provision in the bill that talks about within the two years after enactment, the eeoc should implement regulations. Two years is a long time to wait. My fear is that that lack of definition will result in litigation just as we had when the ada was originally passed about what the definition of disability was. Thank you, ms. Mclaughlin. To qualify for ada protections a worker must be able to perform the essential functions of the job with a reasonable accommodation. My understanding is that hr2694 does not include this provision from the ada. What is your view about this discrepancy . I think its one that needs to be seriously reviewed. From my perspective should be included in any bill that passes so that, if a pregnant worker is accommodated, they still need to be able to perform the essential functions of their job. If they cant, some indication as to what the employer is then permitted to do. Would it be, for example, to put them on leave which seems to be prohibited by the bill in its current state in many circumstances. So i think the essential function concept is critical to have in this bill. Thank you very much. I yield back, madam chairman. Thank you. I now recognize ms. Hayes from connecticut for five minutes for your question. Thank you, madam chair for holding this hearing and thank you to all the witnesses who are here today. As im listening to all of you talk, especially you, ms. Durham, im reminded of my own experiences as a working mom, an educator who had an uneventful pregnancy. I was not older or i did not have any complications. And what i thought was a reasonable accommodation became a tremendous inconvenience. I was a classroom teacher. 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 its time for lunch and thinking, but i have to go right now, was just something that i dealt with which led to further complications with bladder issues. What started out as an uneventful pregnancy ended up having complications as a result of this minor accommodation not being met. I delivered my son on the last day of school. So all i wanted to do was work. But part of that was not that i was so brave or strong or altruistic, i was thinking, i need to save my time for the other side of this pregnancy because i cant afford to be out of work without pay. So i absolutely get it. What i dont get is the idea that pregnancy is some kind of unforeseen limitation for a company. Weve heard the majority of women work and that 75 of those women will likely become pregnant while working while in the workplace. So i want to get to the point about the ability to perform essential Job Functions and what that means. Were hearing a lot about workers, the need to be treated equally. I dont think this is an equality issue. This is an equity issue. Last i checked, men cant get pregnant. The only people who will be affected by this are women who get pregnant on the job and are asking for something that other employees will never have a need for. Ms. Bakst, would you mind responding im sorry, one second. Madam chair, i have two documents i need to submit for the record. A document from the National Womens law center and a letter from senator Elizabeth Warren in support of pregnant workers fairness act. Without objection. Thank you. Back to you, ms. Bakst. Would you remind responding to the concerns about known limitations in this bill . Youve heard from the people on this panel, every pregnancy is different. So how do you define the experience of a pregnancy as a known limitation . So in most of the states that weve worked in, its been rather easy to define and to be able to explain that this is pregnancy itself is not a disability, but limitations or medical needs arising from pregnancy could trigger the need for an accommodation. So the law uses the term it uses known limitations to reflect the scenarios where theres a physical or medical need for an accommodation. It must be known to the employer. Do you want the essential functions questions . Was that a related yes. Because i didnt hear going to the bathroom in the list of essential life functions. Right. You make an important point that pregnancy is only temporary, that is for sure. We know that. Its not so needing to have some essential functions temporarily excused for a limited duration is reasonable. In fact, there are some cases in the ada context that say just that. Because we have a we would have reasonable time frame which in some instances, certainly not all, where a woman wouldnt be able to perform the essential functions of her job. Do you really think a pregnant worker who cant lift over 40 pounds for four months should be sent home and lose her Health Insurance, even though there are open positions in different departments or when their coworkers want to help them. Thats what we see all the time. The coworkers want to help it out. Hr geltz involved and says, oops, you cant do the essential functions of your job. Youre out. That doesnt make sense. We need a way to keep pregnant workers working. On occasion, if they need a transfer or because in the near future they will be able to per form their essential functions of their job, that should be workable. Again, if this is all an undue hardship, the employer need not provide the accommodation. The law would require the employer to consider the accommodation request rather than just pushing the pregnant worker out and all the devastating economic consequences that often flow from that. Thank you. I see my time is about to expire. Ill yield back. Thank you. Thank you. I now recognize representative stefanik from new york. Thank you chairwoman and all our witnesses here today to discuss a really important issue, discrimination against pregnant women in the workplace is an indefensible practice. Im very pleased to see Congress Take such an active role in ensuring our laws provide robust protections for pregnant workers. I was proud to recently introduce the pregnancy discrimination amendment ability with my colleagues that would enhance protections for pregnant women in the workplace. We all grow that pregnant workers should be protected and reasonably accommodated in the workplace. As we consider further changes in the law its important to take a step back to make sure we have a better sense of what has and has not been working. Ms. Mclaughlin, the ada includes a comprehensive definition of disability. Does hr2694 need to include more guidance on what limitations are or are not covered by the bill zm. Again, i think that would be extremely helpful to understand is known limitation, as im hearing today, does it mean any and all limitations always, no matter how short . If that is the intent of the bill, it would be very helpful certainly to employers to understand that. That phrase known limitation known limitations at this point is not well defined and i believe should be. . Ms. Mclaughlin, the bill incorporates the definition of reasonable accommodation and undue hardship from the ada. Does hr2694 incorporate any other terms or concepts from the ada . If this bill is considered by the ada should other features of the ada be considered for inclusion in the bill . The bill does reference reasonable accommodation and undue hardship and says it should be similar to the ada. It references using the interactive process, and thats really where it stops, i would say, other than the damages scheme is the same. What it should include, because theyre both accommodation statutes, is a better builtout definition of known limitations as well as a refers to essential functions as well as a reference to the direct threat defense and qualifications standards. That would be a good start to really pattern the ada. It may be different, but those concepts are the same because theyre both accommodation statutes. I would end with saying employers and employees are used to working with the concepts and definitions under the ada. Thank you. Thats very helpful to provide that feedback and i yield back. Thank you representative. I now recognize ms. Lee from nevada for five minutes for your question. Thank you, madam chair. Before i get started, id like to enter into the record a letter from the National Partnership for women and families in support of this bill. Without objection. This bill is incredibly personal to me. Im the mother of two children. However, i had several unsuccessful pregnancies. In exact, when i had my son, i spent three months on bed rest before he was born, and dehydration was the factor that was cited in pushing me into premature labor. There were other factors, but i sit here today as a witness of staying off your feet, staying hydrated or avoiding heavy lifting can be the difference between having a healthy baby or going into premature and possibly having a severely premature baby which is what i was at risk of and just thinking about all the costs and complications associated with that, or even having a miscarriage. The bottom line is women should never have to make the choice between ignore a doctors order or keeping a job. Sadly, its lowincome families that are most vulnerable when these simple protections dont exist. Thats why the pregnant workers fairness act is so important. In nevada where i come from, over 64 of women are the primary or cobreadwinners. These women are more likely to work lowwage jobs. A woman in nevada is over 60 more likely to work a lowwage job than a man. When a pregnant woman is forced to leave her job because she didnt receive reasonable accommodations at work, its their families that are forced to live without Health Insurance or income during a time when they need it the most, as ms. Durham had explained. The current legal loopholes have already been highlighted here today. Its clear that working mothers and businesses need the clarity to ensure that pregnant women can be accommodated. These accommodations are simple, like a stool to sit on, an extra bathroom break, perhaps a larger uniform to accommodate a growing baby or even carrying a water bottle onto the floor. Working women who are pregnant dont have the time or the resources to take these matters to course and work through this litigation to receive these accommodations. Ms. Durham, first of all, i am sorry that you had to go through that process, and i personally get frustrated thinking about the life that you could have had and the job that you trained for, had these accommodations been made to you. So thank you for that testimony. I appreciate it. Ms. Wilbur, you described how kentucky had passed a version of this bill and it was supported by businesses who recognize the economic benefits of providing clarity and uniformity on the issue of reasonable accommodation. Can you tell us what were the employers initial worries about the costs of providing these accommodations . Thank you for your question. So this was sort of a long journey for our Metro Chamber of commerce. I always like to kind of set the stage. We have heard about these issues bubbling up across the country and some folks approached our Metro Chamber to explore this issue. And so after some conversations among our membership of all sizes, of all different sectors and industries, we learned pretty quickly that because we had a whole list of questions that we needed this type of clarity. For our membership, when you have a bunch of questions and concerns, a lot of uncertainty, that means dollars, and thats in a bad way. Being able to work on the kentucky legislation to provide the framework of when an employer is and is not obligated to provide accommodations was extremely significant. Like i said in my testimony earlier, particularly for small to midsized businesses that cant afford a robust Hr Department or large legal counsel. Our people just want to run their businesses. So being able to work on the kentucky legislation with our General Assembly to define the undue hardship was extremely significant because we are talking about providing a stool. Are we talking about a 4,000 stool . No, were not. Were talking about providing access to water, so having a water bottle at a station. These are low cost reasonable accommodations. Guess what . Theyre temporary. When we were able to message that, not only to lawmakers but also the Business Community, we got the feedback, were sort of already doing this because we want to do the right thing as a Business Community. If we can get framework and state statute to clearly define when we are and are not obligated to to do these things, thats a welcome addition to kentucky law. Thank you. You also highlighted the economic benefits of helping women remain in the workforce and the benefits of employers when women are able to continue to work safely. How is ensuring pregnant workers having reasonable accommodations a tool to increase womens Labor Participation and what does that mean for the economic outcomes, not just to both businesses but also employees . So in kentucky, unfortunately, we have one of the lowest workforce Participation Rates among women. When we looked at the population that are currently in the labor force, we know over 58 of them are of childbearing age. These are conversations that are happening already. So we asked ourselves, particularly as a chamber of commerce, if one of our Top Priorities and initiatives that were hearing from the workforce, is the talent pipeline, we need to have certainty in statutes to allow employers to know when they are and are not obligated to provide these accommodations, but also to ensure that women that are pregnant or new mothers that want to work are able to work. So we think this is a reasonable law, particularly at the federal level to provide the uniformity and clarity across the board, is significant particularly for our chamber of commerce, were a bistate. We represent five counties in southern indiana. Having the clarity across the board is significant. Thank you. My time is up. I yield back. I now recognize representative johnson from south dakota for five minutes for your questions. I want to start by thanking everybody including my colleagues for sharing stories. I think its a good learning opportunity for a lot of us to better understand what issues can be addressed in the modern workplace. Ms. Mclaughlin, there will be times when some employees will be unable to perform the essential duties of their job even after reasonable accommodation. Under hr2694, what are the employers obligations in that situation . Well, you just dont really know because essential functions is not a term in the bill. So its very unclear if somebody cannot perform their job, even with the accommodation, what should happen. Is it a situation where theres a mandate similar to the ada where the accommodation of last resort under the ada is job reassignment . If youre reassigned to a job that pays less, your pay is less, or is it that you do put somebody out on leave or do you have to make work for that individual. Many employers i work with dont have make work. Thats what we call light duty sometimes, removing essential functions. We try to assist somebody to perform their essential functions, but sometimes theyre just unable to, even with the accommodation. Its just not anywhere in this bill and needs to be further clarified including what i just talked about, job reassignment, putting somebody on leave. So what i think i heard, the ada has a clear and easytounderstand set of accommodation processes. This bill lacks that. Is that right . Thats correct. So you ran through some options under the ada. I want to make sure i understand them. There could be, of course, reasonable accommodations, sort of the first tier, among things that can be done there would be reassignment if the current set of duties doesnt work, the next is reassignment. Thats the accommodation of last resort. The goal is to keep somebody in their position. Does leave come after that . The way i would tier it is, can we accommodate . If not, we try to reassign if theres an open job and the individual is otherwise qualified for the job. And then, if neither of those two work, it would be leave. Theres been some testimony today regarding loss of benefits if somebody was on fmla. Whats the Legal Framework there look like . Under the fmla, you have 12 weeks of job protection when you go out on leave, and there is a requirement that the individuals Health Insurance needs to remain in effect for the 12 weeks that the individual is on leave which could be a continuous leave or could be an intermittent leave. After that 12week period, theres no job protection, sounds as though theres no particular benefit protect either. Thats correct, not under the fmla. There could be a cobra opportunity, i assume. Yes. There could be a cobra triggering event. Many employers i work with would just continue to have the individuals Health Insurance remain in effect, as if they were actively employed. But thats not a legal requirement. I dont want to put words in your mouth, ms. Mclaughlin, but i get the sense that youre concerned about you said some of this, but concerned about the lack of definition with some of the terms and the likely higher rates of litigation that that would trigger. Am i saying that right . You are. You are. I think any time in a law that things are unclear, people fight about it, right . People bring claims, and we want to avoid that. Thank you very much. Madam chair, i yield back. I now recognize the chairman of the full education and labor committee, congressman scott from virginia for five minutes for your questions. Thank you, madam chair. Ms. Bakst, under present law, different workers are treated differently. For example, if one employer makes an accommodation for a similarly sish eighted worker but the next employer does not provide that same accommodation, under present law, pregnant women have different rights to the accommodation . To provide accommodations for workers with disabilities, workers with on the job injuries and other scenarios yet pregnant workers arent offered, afforded those accommodation protections. So were in a world where pregnant workers are not achieving most favored nation status, they are achieving least favored nation status. They are being left out unprotected and denied the equal opportunity and that the pregnancy discrimination act intended when the law was enacted to ensure fairness and a level playing field. If you have a similarly situated employee then you would get the same accommodation that employee got, is that right . Well if similarly situated, its a multistep evidentiary burden that a pregnant worker has to prove and an employer has the to have his showing and then plaintiff has another showing. The point with young is a pregnant worker needs to produce evidence of intentional discrimination in order to get a basic accommodation, like a stool, a water bottle, an extra bathroom break to prevent a urinary tract infection. How does this work if theres no similar employees . Well, they lose. Because not only does it say, you know, you need to provide a comparative but if you yourself need which is the case of worker, they dont have a comparative. They may be new to the job. For low wage women they dont have full access to their Company Policies if there are any that they are willing the to share with their workers. What that means is they cant point to a comparativcomparativ. They are running against the luck. Does the americans with disabilities act require you to find a similarly situated employee . No. The americans with disability act bypasses this arduous journey of proof and simply says youre entitled reasonable accommodation absent undue hardship to the employer. The law requires a good faith effort to make it work and if you cant its an undue hardship. Thats the standard. How long has the american with disabilities act been around . Since 1990. Has this been a very complicated process for people to work with when you say reasonable accommodation . In all the states that we have, you know, worked with and legislators, everybody says this is a familiar this is familiar. This will provide clarity for hr because they know what reasonable accommodations and undue hardships mean. They are already doing this in the ada context. If someone is unable to perform their efficient elements of the job even with an accommodation what happens . Well, if someone is unable to perform under the pregnancy under pfwa. Under present law. Under the american with disabilities act. If someone is unable to perform their job they are deemed not qualified and put out on leave. Miss wilbur, can you remind us what the value is of having one federal standard, you have a law in kentucky and different law in ohio. What would be the value of a one federal standard . Wework in a global economy. Louisville where were based is very fortunate to have multistate businesses and Corporate Headquarters based in our region so being able to have that uniformity at the federal level is significant. Yes, we made gains in the commonwealth kentucky and committed to working on similar legislation in the hoover state. There are 27 versions out there, 27 states that have a version of this. So employers, the businesses that i represent, that have that multistate presence, you know, federal uniformity and clarity is significant so we dont have to guess piece by piece. I ask unanimous consent a statement for the record submitted by the march of dimes in support of the legislation be introduced. Without objection. Thank you. I now recognize the Ranking Member of the subcommittee from kentucky for five minutes for your questions. Thank you. Miss mclaughlin, i encourage what chairwoman fox we want pregnant workers to be treated fairly by their employers and we support vigorous enforcement of the pregnancy discrimination act and the american with disabilities act. In your experience employers have policies to provide reasonable accommodations to pregnant workers . Many employers that i work with have extended their reasonable accommodation policy utilized for the ada to pregnant workers using the same framework under the ada for the pregnancy accommodations. What approach do employers take when a pregnant worker seeks an accommodation . So, really it does mirror the ad arent. Theres a request for accommodation and interactive process begins. Theres the ability under ada and i would assume it should be also under this bill to have medical information with respect to the condition, wouldnt really be necessary with pregnancy but more so what accommodation is needed and to work through whether the accommodation can be put in place absent undue hardship. So its a dialogue between hr and the individual as well as the health care provider. Miss mclaughlin, in your testimony you noted that a careful balance was struck in the ada between right to workers with disabilities, and the recognition that employers cannot remedy every situation that arises. Does the federal framework proposed by hr 2694 strike a similar careful balance . I mean i think its very difficult to tell, frankly, because in my opinion there are so many terms that are critical, that are missing or not well defined. So, i get back to the no limitations. We cant tell if a balance is struck like the ada was struck, a balance was struck to, between whether the law covers anything and everything or it doesnt. It simply not clear from the law as its written. What provisions of this proposal should we look at to ensure that there is that balance . I could tick them off here. It would be no limitations definition. It would be essential functions. It would be helpful to know if somebody can perform their essential functions even with the accommodation. Does it mirror the ada with respect to job reassignment and then leave. Direct threat standard, qualification standard, some of those very key terms under the ada would be very helpful to be in this bill. So that theres clarity for everyone. Okay. Miss mclaughlin it states an enforcement guidance on pregnancy discrimination the ada can apply to pregnancy related impairments that are temporary. Do you agree . Yes. Does the ada as amended in 2008 apply to temporary impairments . It absolutely does. In fact, there is a regulation that states that impairments lasting fewer than six months can be disabilities. The reason that was put in there very specifically was because there was some other language in the act about regarded as disabilities that made it sound like that was six months and above. So this particular regulation to me makes it very clear the temporary impairments can be disabilities. My last question, miss mclaughlin. As my friend irish wilbur stated kentucky recently enacted the pregnant workers act to provide explicit protections for pregnant workers. Are you familiar with the kentucky bill . I am. I have read it. Are there differences between the kentucky law and this proposal . There are. Kentucky law references the employees own limitations relating to her pregnancy. So its a little different. But it does provide specific examples as to what a reasonable accommodation should be and i think most importantly it flushes out undue hardship and states that a duration of the requested accommodation may be a factor to consider as well as whether similar accommodations have been made to nonpregnant workers. So it is it has many more definitions built out in it. Okay. I really appreciate the testimony and madam chair, i appreciate the hearing today and i think that a lot of useful information has been retrieved from this and i look forward to working to ensure that all pregnant women are protect in f the workforce. I yield back. Were moving to the members who are here who are not on the committee and im pleased to recognize the congresswoman from georgia for five minutes for your questions. Thank you so much, madam chairwoman and thank to you all the witnesses who are here today. I just had myself having been a Flight Attendant for 30 years before i came to congress, i do understand specifics about Workplace Safety and i can tell you having worked in that industry there are no particular Safety Measures put in place for Flight Attendants that are pregnant. I myself continued to fly while i was pregnant. However, after three miscarriages and a fetal demise, my doctor took it upon herself to say stay home and i was put on short term disability. But there are no specific guidelines given to pregnant women, pregnant workers in the Airline Industry that im aware of. But women shouldnt have to choose between a healthy pregnancy and a paycheck. Almost 64 of american women are the primary sole or cobreadwinners in their families. But right now women can essentially be fired for being pregnant. Pregnant workers fairness act will ensure the health of our women and their babies does not come at the expense of Economic Activity or Economic Security. This issue is especially pressing for lowincome women as it was mentioned, many of whom work on their feet in physically demanding jobs and cannot afford any lost wages. 27 states have already passed laws that require certain employers to provide accommodations to pregnant women. Its time for federal action that guarantees all pregnant women are protected from discrimination. We want all to support working mothers. Thats been established here today. This is a bipartisan proposal that protects pregnant women by allowing them simple accommodations, accommodations that will make our women safer, and their children healthier. I do have here a letter from a leading privatesector employers in support of this legislation and i ask unanimous consent that this letter be submit forward the record. Without objection. Thank you. Miss wilbur, my question is for you and thank you so much for your testimony today. I believe that clarity in the law is good for both employers and for workers, providing these protections is not only morally right but it makes Good Business sense. So i would like to talk a little bit about the business of this act. How would federal legislation provide Legal Certainty and decreased legal fees for smaller and midsize employers that may not have legal departments . Thank you for your question. Yes. So employers, companies of all sizes across the board demand clarity because as you mentioned in your question when we have uncertainty in the market, in the workplace that means dollars for businesses and thats not in a good way. Being able the to have that clarity and certainty how to handle situations involving pregnancy child birth and medical conditions is essential. Many employers, people that run Small Midsize businesses want to focus on making investments in their companies. Most are not experts on dealing with conditions related to pregnancy. So having this guidance where it is treated separately from the ada, this legislation is separate from ada for that particular reason, is important and thats why states like kentucky have stepped up to put within stat statute clarity and will remain committed to work with other states to do that as well but hoping for federal legislation to step in to provide that clarity across the board for all states. For us, we worked on this issue. We learned that there is data showing at least two states that have implemented state law have not seen increase in litigation costs or filing. Theyve seen decreases. Kentucky just pass ted the law this spring. Its now implemented. Still new. The sky hasnt fallen. We havent seen an overrun of cases being filed or unreasonable pregnancy accommodations being requested. So thats why were confident and fully support the pregnant workers fairness act. One more question for you. How will the pregnant workers fairness act help reduce litigation . Just as i mentioned, being able to have that clarity so employers know when they are and are not obligated. So being able to lean on undue hardship clause in particular is significant for employers because at the end of the day these accommodations are, are temporary so were talking about a bottle of water at their work station, stool to sit on. When employers know what those means those reasonable flexible standards were confident this will reduce litigation. Thank you very much and im out of time. I now recognize another member of the full Committee Miss underwood from illinois for five minutes for your question. Thank you, madam chair, for calling this important hearing and thank you to all the witnesses for joining us today. Its 41 years since the pregnancy discrimination act of 1978 became law. But women continue to face discrimination and unfair treatment at work due to pregnancy. Women are denied access to reasonable accommodations under conditions that threaten their health or pregnancy. Its critical we center todays discussion around the effects of pregnancy discrimination has on the health of the women, her family and pregnancy. So what are some of the physical requirements at work that pregnant women have been subject to. Some physical requirement . Yes. Can you clarify . We have seen allegations that people are not being given stools. So typical cooks as we heard include, you know, more frequent restroom breaks. Some modification of a work schedule temporarily. Light duty. A water bottle. These are some of the most common Workplace Accommodations that pregnant workers need to prevent unless some further complication down the road. So those are the most common types. Again, i just want to say that this is an interactive process. Undue hardship exists if those accommodations are not available but what were really talking about are temporary diminus accommodations. What about the Mental Health stressors that pregnancy discrimination can cause a woman and her family. Can you tell us about those . Absolutely. Weve heard so from so many women who suffered profound emotional stress from being forced off the job and worrying about, you know, how are they going put food on the table, feed their families, you know, stay afloat and sink into a poverty hole that they cannot climb out of. Then they become mothers and find an extremely difficult time to get rehired in a pretty brutal job market and we wonder and this is really a key trigger, a really important factor in the gender wage gap. So ensuring that women for their own health, the health of their pregnancy can stay attached to the workforce is absolutely essential. So today women make up about half of the workforce. 71 of mothers actually work outside the home. Women are often crucial in familys Economic Security according to the National Womens law center. 42 of working mothers were the familys primary breadwinner. You said theres an impact on the gender wage gap. Any other impacts you would like to share with the committee today . It exacerbates economic impact. Miss mclaughlin mentioned the fmla provides some protection. Most of these most of the women that were talking about are not covered by the fmla because the fmla mostly covers, you know, workers in higher wage position, right . 40 of workers are not covered by that law. Those are unpaid jobs. Unpaid regardless. So if youre lucky enough we heard from women who are lucky enough to be covered by the fmla but when they are forced out they are forced to use their fmla leaf before they give birth and then what . They have either they are fired because they have no additional time or they have no time the to recover from child birth. And no time to establish breastfeeding. It becomes really impossible to be able to, you know, support themselves and their families without you know, without risking their Economic Security. Wow. So that sounds like an additional level of stress that many of these mother are facing. Absolutely. So we know that there are Health Complications as a result of these many physical stressors and Mental Health stressors. Are you familiar with any Health Complications if pregnant workers are not provided these accommodations and have any women you sworkd with specifically faced those health risks . Yes. I cited a couple in my oral testimony and written testimony talked about what kind of research is out there that, you know, connects, you know lack of accommodation and Health Complications and a lot of those situations could simply be avoid and prevented if we guaranteed an explicit right to accommodations thats currently available to workers with disabilities. So, it is just essential that we do everything to ensure that for women so they dont have to suffer those Long Term Health consequences for themselves. We know that this is a potential Public Health crisis if we dont pass this pregnant workers fairness act. Madam chair, i ask unanimous consent to enter a letter in support of the pregnant workers fairness act into the record. Without objection. Thank you for consideration of this important bill today. I now recognize mr. Cohen from tennessee for five minutes for your questions. Thank you, madam chair. Miss mclaughlin you have expressed concern that the pregnant workers fairness act application one due hardship provision might limit the employers options. In your written testimony you say the bill suggests the employer cannot place the worker on leave if an accommodation exists that would address the no limitation. Even if that accommodation results in undue hardship. Would you agree that if pregnant employee is placed on leave as an accommodation that the employer chooses that it should be paid leave . Well, that would depend on the Financial Resources of the employer. Some employers can afford paid leave and others cannot. Do you believe that a woman who has a job who is pregnant, who is doing the most essential thing on this earth, which is to reproduce and keep the human species going, without that none of us would be here. Do you believe that that woman shouldnt get paid leave if the employer under a law or rule that you support suggested that instead of doing an accommodation on her work that the accommodation that best suits that employer is to put them on leave, that they should not be paid . Well, i guess the way i was interpreting your original question was should the employer have to pay for the leave. I would suggest that if congress feels that those types of leaf should be paid and i know there have been introduction of bills in the past that to me is something that congress should mandate rather than imposing the duty to pay on the employer. What if congress imposes the the duty on the employer . Bottom line is this question. Dont you think the woman should be paid . You know, i dont really think that my personal opinion is relevant here. Your opinion is is the accommodation provision is wrong because it doesnt allow the employer to put the person on leave. If they put them on leave and dont pay them thats not an accommodation, thats a penalty. At the end of the day the Employer Needs to run its business too. And also accommodate pregnant workers or disabled workers, and there are circumstances that leave is going to be unpaid. If the government were to intervene and mandate paid leave for employers, whether it would be some sort of subsidy through an employment, through the employer having to pay, but i really think thats something that needs be legislated. Thank you, miss mclaughlin. In 2014 memphis had 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 which i would like to have entered into the record. Without objection. Thank you. One of the former employees brought her doctors note instructing hedo no heavylifting. The supervisor did not accommodate the doctors note for reassign her to a different area. She continued to do her assigned box of lifting boxes almost 50 pounds and suffered a miscarriage. Employers can currently decide whats an unnecessary burden. How would the undue hardship under the pregnant workers fairness act come in to play in this situation . Absolutely. So, she suffered profound Health Consequences as a result of being denied this accommodation. The way it would work the employer would try to see if there was an alternative way to honor her doctors note or restriction and if it was not reasonable or constitute an undue hardship then the Employer Needs accommodate her. Whats happening is women like her are being forced off the job or forced to risk their health because employers are not simply engaging in that good faith interactive process that they are doing for workers with disabilities. I just want to make the point if i may back to that bill. Any idea that that bill would make the situation better is just completely untrue because once again the bill requires pregnant workers to point to other workers to finds a c comparative but it pushes it in the wrong direction because it imports new definitions who an appropriate comparative is from other statutes. So we have to, you know, we need a clear standard for pregnant women so they can follow their Doctors Orders, remain healthy on the job. If theres an accommodation to provide it if its an undue hardship they dont have to. But they shouldnt have to jump through hoops and wait until their kid is in school to find out if they can be accommodated. If i may, if the accommodation was leave would you agree it should be paid leave . We at a better balance and my colleagues, you know, advocates strongly believe in paid family leave. I think every woman in america, every parent, every caregiver, you know, everyone should have access to paid family medical leave. Thank you. I yield back and appreciate the committees indulgence. I remind my colleagues materials for submission of the hearing record must be submitted to the Committee Clerk within 14 days following the last day of the hearing preferably in microsoft format. It must address the subject matter of the hearing. Only a member of the committee or a witness may submit materials. Documents are limited to 50 pages each. Document longer than 50 pages will be entered into the record through a link. Again, i want to thank the witnesses for their participation today. What weve heard is a very valuable. Members of the committee may have additional questions for you. We ask the witnesses to please respond to those questions in writing. The hearing record will be open for 14 days. I remind my colleagues, witness questions for the hearing record must be submitted to the Majority Committee staff or Committee Clerk within seven days and the questions submitted must address the subject matter of the hearing. And we have some closing statements. I recognize the distinguished Ranking Member for his closing statement. Thank you, madam chair. Again i want to thank all the witnesses for being here today. Its the goal of both parties in congress to ensure pregnant workers are protected in the workplace and i know on behalf of the minority conference well do everything in our ability to see that every pregnant worker is protect in the workplace and hopefully we can Work Together as this bill moves forward and see that, that objective is achieved. With that, madam chair, i yield back. Thank you so much. I recognize myself for the purpose of making a closing statement. Thank you again, to the witnesses for being here. Im very glad everyone, every member of the committee who expressed an opinion agrees pregnant workers should be protect in the workplace. I think thats a very positive state. Your compelling testimony here today confirms that far too many pregnant workers are still denied access to reasonable Workplace Accommodations despite of more than four decades of federal law providing for equal treatment on the job. Workplace accommodations can be simple, inexpensive not unlike the accommodations required for individuals covered under the americans with disability act. Some of the accommodations discussed today included providing seating and waterwork sites, allowing additional break times to use the rest rooms. Pregnant workers shouldnt choose between health and work stability. By clarifying the right of pregnant workers to fair treatment in the workplace this legislation will finally guarantee pregnant workers the accommodation they need without fear of facing discrimination or retaliation or without waiting months or years to find out if accommodation is prospriepd this bill focus on prevention and accommodation and that is a positive step. Again this is not a partisan issue. Several state legislatures across the country including kentucky and my home state of oregon have already passed Bipartisan Legislation combatting discrimination against pregnant workers and they have found that the certainty is good not just for pregnant workers but also for businesses. I hope that every Committee Member here today can agree Congress Must act not only in a bipartisan manner to provide all pregnant workers access to gender equality. I look forward to work with my colleagues to pass the pregnant workers fairness act and take a long overdue step on behalf of pregnant workers and their families. So without objection the committee stands adjourned. [ hearing adjourned ] this saturday on American History tv, on lectures in history at 8 00 p. M. Eastern the 1981 trial of jean harris woman accused of murdering dr. Herman. She was smith. Went off to smith college. Graduate e ed phi beta kappa. Theres evidence shes bruised. She was the he hits her in ways he never hit her before. Theres no evidence either way that he had hit her prior to this or if he was struggling to pull a gun away. At 10 president Richard Nixon november 3rd, 1969 silent majority speech. Vote tonight to you the great silent majority of my fellow americans, i ask for your support. I pledged in my campaign for the presidency to end the war in a way that we could win the peace. I have initiated a plan of action which will enable me to keep that pledge. Sunday at 6 00 p. M. Eastern former u. S. Foreign Service Officer on his time as a hostage in iran. What says in your culture that permits to you hold, to detain a guest against his will . And at 8 00 on the presidency, Ronald Reagans White House Political Affairs director and historian on reagans campaigns for the white house. Reagan just cleans up in new hampshire. He wins like two to one. With such momentum that its a good thing we won by such a big margin because we already spent most of our money. Explore our nations past on American History tv every weekend on cspan 3. Sunday night on q and a, wall street trader turned photo journalist on his book dignity about the plight of those living on the harbor begins of society in america. It was a sunday morning, i believe or saturday. It was empty because all the semis were gone and she was in the industrial part of hunts point. And her intelligence just came right through and we spoke for about an hour, half an hour or so. She told me her life. Its like a cliche of everything wrong that can happen to somebody. And eventually i asked her what i ask everybody i photographed which is, you know, whats one sentence how do you want me to describe you. Give me one sentence how to describe you. She shot back im a prostitute, mother of six and a child of god. Sunday night at 8 00 eastern on cspans q and a. Secretary of state mike pompeo said the Trump Administration in his words inherited a mess in syria. Speaking at the Heritage Foundation secretary pompeo talked about the administrations policy on syria, china and iran. [ applause ] thank you all. Thank you. Well, good morning, everyone. So, i got a prepared speech and i got some thoughts. And ill mix them in this morning. I want to thank kay and the entire team of heritage for having me this morning. We were talking back stage about the gala tonight and i reminded them ive been to the