In October 2011, Doris Nohemi Garcia Hernandez was overjoyed to discover that she was pregnant with her second child. Unfortunately her supervisor at the fast food restaurant where she worked was less enthusiastic, and he began singling her out for harassment after he learned of her pregnancy. Unhappy with what he perceived to be excessive use of the bathroom and water breaks, Ms. Garcia’s supervisor required her – and only her – to raise her hand and seek his permission each time that she needed to use the bathroom or get a drink of water. Subsequent to her termination for allegedly “not giving 100%” to her employer, the Washington Lawyers’ Committee, along with co-counsel Arnold & Porter LLP, filed a complaint on Ms. Garcia’s behalf for violations of the Pregnancy Discrimination Act and the District of Columbia Human Rights Act in April 2014. Both statutes unequivocally prohibit employers from singling out pregnant employees for poor treatment – much less terminating them – on the basis of their pregnancy.

Yet the extent to which employers are obligated to accommodate the physical limitations of their pregnant employees has been less clear. Fortunately a new District of Columbia law now provides even greater protection to women in Ms. Garcia’s position, specifying that they are entitled to such basic accommodations as more frequent bathroom breaks in order to safely continue working throughout their pregnancies.Under the Protecting Pregnant Workers Fairness Act of 2014 (“PPWFA”), signed into law by Mayor Vincent Gray on October 23, 2014, employees whose ability to perform the functions of their jobs are limited by pregnancy, childbirth, or a related medical condition are entitled to reasonable workplace accommodations – period.

Unlike the federal Pregnancy Discrimination Act, which specifies only that pregnant employees must “be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work,” the PPWFA does not tie the fates of pregnant employees to their employer’s treatment of their similarly-abled, but non-pregnant, co-workers. Nor must pregnant employees demonstrate that their limitations constitute a disability within the meaning of the Americans with Disabilities Act. The PPWFA simply requires employers to make modest changes to accommodate the physical limitations of a normal, healthy pregnancy unless doing so would cause an undue hardship. This is a significant development for working mothers in the District of Columbia.

It is also grounded in profoundly good sense, as employers routinely make such accommodations for employees with other temporarily-disabling conditions without significant hardship. Examples of “reasonable accommodations” under the PPWFA include the provision of more frequent or longer breaks, a stool to sit on, restrictions on heavy lifting, a temporary transfer to a light duty position, or a modified work schedule. The PPWFA also specifies that the provision of a private, non-bathroom space to express breast milk is a reasonable accommodation for a breastfeeding mother.

In addition to establishing a right to reasonable accommodations, the PPWFA provides a number of other protections for pregnant employees:

• Employees who request or use an accommodation under the PPWFA may not be retaliated against for doing so.
• Employees may not be denied employment opportunities because they may need pregnancy-related accommodations.
• Pregnant employees may not be forced to accept an accommodation if they do not have a known limitation or the accommodation is not necessary to enable them to perform their duties.
• Employees may not be forced to use leave if a reasonable accommodation is available.

Perhaps most importantly, the new law has teeth: the PPWFA contains an express private right of action and it outlines both administrative and civil remedies available to employees who have suffered injuries due to their employer’s violation of the law.

If you believe that you are entitled to an accommodation under the PPWFA, you should familiarize yourself with your employer’s policies, as you may be required to provide certain notice and documentation from your physician if such documentation is required of employees with other temporary disabilities. For questions about the new law or help in seeking a pregnancy-related accommodation, contact paralegal Ada Lin at [email protected] or (202) 319-1000.