Written Testimony of Fatima Goss Graves, President and CEO, National Women’s Law Center

April 28, 2021

Thank you for the opportunity to provide testimony on the workplace civil rights implications of the COVID-19 pandemic. The National Women’s Law Center (NWLC) fights for gender justice—in the courts, in public policy, and in our society—working across the issues that are central to the lives of women and girls. For almost 50 years, we have used the law in all its forms to change culture and drive solutions to the gender inequity that shapes our society and to break down the barriers that harm all of us—especially women of color, LGBTQ people, and low-income women and families.

The COVID-19 pandemic has exposed and exacerbated existing inequities that plague women today, including workplace discrimination and harassment. Women in low-paid, front-line jobs have faced heightened risk of job loss, especially true for Black and Latina women; that vulnerability at a moment of high unemployment rates leave many desperate to keep a paycheck and thus less willing to risk retaliation by challenging discrimination and other workplace abuses. At the same time, as our caregiving infrastructure has broken down and as the pandemic has created new workplace risks for pregnant workers, family caregiving obligations and pregnancy have led to additional discrimination.

My testimony will cover several key areas where the pandemic has harmed women and working families: the effects of the COVID-19 pandemic on women’s workforce participation and pay equity; the impact of COVID-19 on pregnant workers; how the pandemic has increased caregiver discrimination and worsened workplace conditions that disproportionately harm women as family caregivers; and workplace sexual harassment considerations in light of the pandemic.

The civil rights implications of the COVID-19 pandemic are wide ranging and go far beyond the issues I am able discuss in our short time today. I urge the Commission to consider its response at the intersections of each of the protected categories, recognizing that the effects of the pandemic may look different to different communities. The work of the Commission is critical in responding to the myriad civil rights implications of the COVID-19 pandemic and the Commission should use the full resources at its disposal to further the ability of women, and especially women of color, to work with dignity and safety, in workplaces free from discrimination, as we seek to recover from the pandemic and beyond.

I. The COVID-19 pandemic has decimated women’s workforce participation and economic security.

The COVID-19 pandemic has laid bare the deep gaps in our economic and social infrastructure that have resulted from decades of underinvestment and policy choices that failed to center the needs of women, especially Black, Latina, Native American, and Asian American and Pacific Islander women. Women of color are bearing the brunt of the COVID-19 pandemic and recession: as essential workers risking their lives for less pay than their male coworkers; as those who have disproportionately borne devastating job losses; and as those who are shouldering the majority of responsibility for caregiving without necessary supports as our jerry-rigged caregiving infrastructure imploded this year.

A. Women are on the front lines of the pandemic and being paid less than their male counterparts while they perform essential work.

Women have been and continue to be on the front lines of the pandemic. Women make up nearly two in three front-line workers, and women of every race and ethnicity—but especially Black women, Native American women, and Latinas—are overrepresented in the front-line workforce.[1] For example, 88% of registered nurses, 79% of teachers, and 69% of waiters and waitresses are women.[2] Women—disproportionately Black women and Latinas—make up more than eight in ten of those working as home health aides, personal care aides, and nursing assistants,[3] working for poverty-level wages and also at great risk for contracting COVID-19. Women of color also are overrepresented in the child care workforce; one in five (20%) child care workers are Latina, and an additional 19% are Black women.[4]

Even before the pandemic, many women, particularly women of color, older women, women with disabilities, and single-parent households, struggled to make ends meet. Women typically lose more than $10,000 per year to the gender wage gap, with even higher losses for women of color.[5] Earnings lost to the wage gap have exacerbated the financial effects of the COVID-19 pandemic, falling particularly heavily on women of color and the families who depend on their income. For many, race and gender wage gaps have left them without a financial cushion to weather the health and economic impacts of the pandemic.

For more than a year, Black and brown women have been risking their lives to perform work deemed essential by the nation during this crisis, while being paid less than men in the same occupations. Women experience a gender wage gap in 94% of occupations, including low- and high-wage jobs,[6] and the wage gap in front-line occupations is yet another burden on the women taking on additional risk at work. For instance, pre-pandemic data show that women working as home health aides, personal care aides, or nursing assistants typically lose $250 per month, or $3,000 per year, due to the gender wage gap.[7] Moreover, the gender wage gap leaves women and their families less able to make ends meet through spells of unemployment in occupations with heightened risks of job loss. Waitresses, for instance, have faced high rates of unemployment and, prior to the pandemic, typically lost $542 per month, or $6,500 per year, to the gender wage gap.[8]

B. Women have borne the brunt of job loss during the pandemic and their workforce participation is at a historic low.

In addition to being overrepresented in essential jobs where they are paid less than their male counterparts, women have borne the majority of job losses since the onset of the pandemic and have left the workforce entirely in historic numbers. The industries where women predominate are among those that have been hardest hit. Between February and April 2020, the leisure and hospitality sector shed about half of its workforce (49%, or more than 8.3 million jobs), with women accounting for the majority (54%) of those losses despite making up just 51% of the sector workforce pre-pandemic.[9] And between February 2020 and March 2021, women lost a net total of nearly 1.7 million leisure and hospitality jobs, representing 36% of women’s total net job losses in the pandemic-induced recession.[10]

Women make up 48.4% of the retail trade workforce, but 94.9% of the net jobs lost in the retail sector from February 2020 through March 2021 were women’s jobs.[11] Caught in a devastating Catch-22, women in the retail sector continue to experience a high risk of being displaced from their jobs and a high risk of being exposed to the virus if they go to work. And women in retail jobs were already undervalued and underpaid, a long-time problem now exacerbated by the current crisis.[12]

The situation is similarly grim for women working in health care. Between February 2020 and February 2021, the health care sector lost 568,300 jobs (about 4% of the pre-pandemic workforce).[13] More than three in four of the healthcare workers fighting the COVID-19 pandemic are women, and 88% of the jobs lost between February 2020 and February 2021 belonged to women. Home health aides, personal care aides, and nursing assistants are among the lowest paid workers across all industries and occupations, meaning they are risking their lives to care for patients while being paid poverty-level wages.

State and local governments also provide vital services that are even more necessary in the current crisis – including education, social services, and public health protections – and they employ over 17.4 million workers, six in ten of whom are women.[14] Between February 2020 and February 2021, nearly 1.4 million state and local government jobs were lost, with women accounting for 61% of those losses.[15] This is a devastating blow to women, who are more likely than men to hold state and local government jobs, particularly given that these jobs have a higher median wage and are more likely to provide important benefits than private sector jobs.

Even as jobs lost in the first weeks and months of the pandemic have begun to return with 916,000 net jobs in March 2021, women accounted for only 34.4% of that net gain. In fact, women would need nearly 15 straight months of job gains at that level to recover the over 4.6 million net jobs they have lost since February 2020.[16] Furthermore, women’s current overall unemployment rate of 5.7% masks even higher rates of unemployment for women of color, which remain exceptionally high: nearly 1 in 11 Black women ages 20 and over (8.7%) were unemployed in March 2021 and more than 1 in 13 Latinas ages 20 and over (7.3%).[17]  Women are also facing high rates of long-term unemployment. Among adult women ages 20 and over who were unemployed in March 2021, 2 in 5 (46.5%) had been out of work for 6 months or longer and nearly 1 in 4 (24.0%) had been out of work for a year or longer.[18]

At the same time, official unemployment rates understate women’s job loss, as the lack of supports during the pandemic for individuals who are caregivers as well as breadwinners has forced women out of the workforce in droves. The gender wage gap contributed to this pushout as our nation’s caregiving infrastructure broke down and families were forced to make impossible decisions about whose income they could “afford” to lose.  Over 1.8 million women have left the labor force entirely since the start of the pandemic, leaving women’s labor force participation rate—the share of adult women who are either working or looking for work—at 57.4%.[19] Before the pandemic, women’s labor force participation rate had not been this low since 1988.[20] The pandemic has led to a loss of a generation of gains.

C. Pandemic-related unemployment, coupled with lack of worker access to pay information, threatens to exacerbate wage gaps.

The repercussions of COVID-19’s impact on women’s unemployment and labor force participation may reverberate for years to come, as women navigate not only the loss of seniority and advancement opportunities, but also barriers to re-entering the workforce in an economy that has fundamentally shifted available job opportunities. The pandemic also means women will be less likely to afford education and training that would allow them to move up or into another field. Long spells out of work also threaten to exacerbate race and gender wage gaps when women return to employment,[21] as unemployment and time out of the workforce tends to depress earnings when individuals do go back to work. Women returning to the workforce after months of unemployment or time out of the workforce entirely may have decreased bargaining power, because they cannot afford to be out of work any longer; employers, in turn, may pay lower wages to employees who have been unemployed or out of the workforce for long stretches of time. Both mean women may face larger wage gaps moving forward.

Even before the pandemic, individuals faced numerous barriers to accessing pay information and controlling how it is used in hiring and pay setting, resulting in gender and racial pay disparities that were often undetected or unchallenged. Those barriers remain, but the power disparity between workers and employers has been exacerbated by the economic impacts of the pandemic, further threatening to deepen wage gaps as women who were forced out of the labor market seek to re-enter it. Employers hold far more information than applicants and workers about budgets, the available wage for a job, compensation for different jobs within the company, compensation-setting guidelines, available benefits and whether they can be negotiated, and working conditions. This information asymmetry places applicants and workers at a distinct disadvantage in hiring and pay setting processes. As a result of widespread illegal employer-imposed pay secrecy policies,[22] job applicants can find it difficult to gather pay information from current employees, who may be fearful of retaliation for sharing pay information with applicants or coworkers. Such policies also undermine workers’ ability and desire to challenge discrimination. Disparities that are present in initial salary at hiring often compound over time and affect salary increases, future performance-based compensation, and employer contributions to retirement – and are perpetuated by employers’ reliance on applicants’ prior salary history to set wages, allowing pay discrimination to follow women and people of color from job to job. These practices reduce employer incentives to proactively review and analyze their compensation practices, address any unjustified disparities between employees, and prevent such disparities from arising in the first instance.

Countering widening gender and race wage gaps as a result of our current economic crisis will require increasing workers’ access to and control over pay information, and proactive measures by employers to review and evaluate their compensation data and practices.

II. COVID-19 has heightened the need for workplace protection for pregnant workers.

Since the start of the COVID-19 pandemic, pregnant workers have been navigating a maze of interwoven concerns, not least of which have been the need to stay safe while at work. For those pregnant workers who were not able to work from home, especially those in low-paid jobs, many of whom are women of color, access to accommodations at work to stay safe while pregnant has become even more urgent than in the pre-pandemic landscape.

A. Absent pregnancy accommodations, many pregnant workers are at risk.

COVID-19 has brought home the many ways pregnant workers are left unprotected at work. For example, two of the occupations with the greatest share of pregnant workers are nurses and nursing and home health aides.[23] These jobs are physically demanding—requiring prolonged standing, long work hours, irregular work schedules, heavy lifting, and high physical activity.  For these reasons, pregnant workers in these occupations may well need temporary accommodations at some point during pregnancy.[24] The risk of COVID exposure also creates accommodation needs for pregnant women; a February 2021 study published in the American Journal of Obstetrics and Gynecology found that the COVID-19 infection rate in pregnant people was 70% higher than similarly aged adults.[25] According to the Centers for Disease Control and Prevention, pregnant people are at an increased risk for severe illness from COVID-19 when compared to non-pregnant people.[26]

During the pandemic, an appropriate accommodation could be placement in a non-COVID wing of a healthcare facility, or a changed schedule to commute at a time when public transport may be less crowded. The need for pregnancy accommodations is particularly acute for home health aides, personal care aides, and nursing assistants, who are among the lowest paid workers across all industries and occupations, and whose jobs also frequently lack health insurance or other critical supports like paid sick days and paid family and medical leave.[27]

Recently we observed Black Maternal Health week, led by the Black Mamas Matter Alliance; for the first time, it was observed by the White House as well. The Black maternal health crisis remains frighteningly persistent and requires immediate attention and multi-faceted solutions. Black women experience maternal mortality rates three to four times higher than white women and are at higher risk of preeclampsia, which is one of the leading causes of maternal mortality. Providing accommodations is especially important for Black pregnant women, who are shouldering the brunt of the pandemic in low-paid jobs where employers too-often maintain rigid work rules that compromise prenatal and postpartum health. Even accommodations such as allowing for carrying a bottle of water on a shift, or extra bathroom breaks, could contribute to better outcomes by lowering risks such as blood clotting or urinary tract infections.[28] 

While the stakes are high for pregnant workers with a medical need for accommodation, only a small number of employees will need pregnancy accommodations in any given year, meaning that the employers’ burden in providing such accommodations is slight. Only about 1.5% of workers give birth each year, and only a fraction of those pregnant workers would require accommodations.[29] Even in the occupations where they are most likely to be employed, pregnant women represent a negligible share of total workers. For example, pregnant women are most likely to work as elementary and middle school teachers, but only 3.2% of all elementary and middle school teachers are pregnant in a given year. [30]

Those workers who are pregnant, however, typically work late into their pregnancies, which may increase the need for an accommodation. The United States Census Bureau shows that, out of all first-time mothers who worked while pregnant between 2006 and 2008 (the most recent years for which data is available), 88% worked into their last trimester, while 65% worked into their last month of pregnancy.[31]

B. Inappropriately narrow readings of federal law leave pregnant workers unprotected and without recourse.

The EEOC’s 2014 Enforcement Guidance on Pregnancy Discrimination and Related Issues was an important update to previous guidance documents, as was its 2015 amendments to that Guidance, incorporating the Supreme Court’s holding in Young v. United Parcel Service (UPS).[32] However, some lower courts have misapplied and misinterpreted Young, resulting in pregnant workers losing their accommodation cases again and again. In particular, some lower courts have improperly distorted the Young holding and continued to require an inappropriately demanding comparator standard for pregnant workers seeking to show that they have been discriminatorily denied accommodations. This misreading of Young threatens particular harm in light of the dire and new needs for accommodation brought on by COVID-19.

Before Congress passed the federal Pregnancy Discrimination Act of 1978, it was common for employers to categorically exclude pregnant women from the workplace. The Pregnancy Discrimination Act changed this forever by making indisputably clear that the right to be free from discrimination on the basis of sex includes: (1) the right not to be treated adversely because of pregnancy, childbirth, or related medical conditions; and (2) the right of workers affected by pregnancy, childbirth, or related medical conditions to be treated the same as other employees who are not so affected but are “similar in their ability or inability to work” with respect to all aspects of employment, including benefits, insurance, leave policies, and workplace accommodations.[33]

In 2015 in Young v. UPS, the Supreme Court interpreted this language to hold that when an employer accommodates workers who are similar to pregnant workers in their ability to work, it cannot refuse to accommodate pregnant workers who need it simply because it “is more expensive or less convenient” to accommodate pregnant workers too.[34] The Court also held that an employer that fails to accommodate pregnant workers violates the Pregnancy Discrimination Act when its accommodation policies impose a “significant burden” on pregnant workers that outweighs any justification the employer offers for those policies.[35]

Specifically, in Young, the Supreme Court altered the legal tests for pregnancy accommodation claims in several important ways. First, the Court made clear that a plaintiff successfully makes an initial showing in a pregnancy discrimination case challenging the denial of an accommodation when she shows (1) that she was pregnant; (2) that she sought accommodation; (3) that the employer did not accommodate her; (4) that the employer did accommodate others “similar in their ability or inability to work.”[36] The Court emphasized that this does not mean that a pregnant worker must identify a nearly identical coworker that the employer accommodated.[37] This is a critical distinction because some lower courts, such as the Court of Appeal in Peggy Young’s case, had previously found that a pregnant worker challenging a failure to accommodate was not comparable, for example, to employees with on-the-job injuries who were accommodated, because the pregnant worker—though similar in ability to work—did not have an on-the-job injury.[38] The Supreme Court in Young appeared to correct this Catch-22 that had shut down many pregnant workers’ cases.

Second, the Court offered some clarification about how an employer may and may not defend an accommodation policy after the pregnant worker has made this showing. When the pregnant worker has made this showing, the employer may then come forward with a “legitimate, nondiscriminatory” reason for the difference in treatment.[39] Importantly, however, the Court emphasized that an employer assertion that it “is more expensive or less convenient to add pregnant women to the category of those” who are covered by the accommodation policy does not constitute a legitimate, nondiscriminatory reason for the difference in treatment.[40]

Third, the Court set out a new way in which a pregnant employee may prove that the employer’s stated legitimate reason is actually a pretext and that the employer is actually motivated by discrimination against pregnant women. The Court explained that when a pregnant worker shows the accommodation policies impose a significant burden on pregnant workers that outweigh any justifications offered by an employer, this can demonstrate intentional discrimination. A way of showing this significant burden is by presenting evidence that the employer “accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.”[41] The Court also noted that when an employer has multiple policies for accommodating limitations arising out of causes other than pregnancy, it may suggest that it does not have strong reasons for failing to accommodate pregnant workers too.[42] In doing so, it put employers on notice that pregnancy is not a reason to discriminate: if employers find themselves able to accommodate non-pregnant workers who need it, but not pregnant workers, they may be violating the PDA.

While the Young decision was an important victory for pregnant workers in many regards, lower courts’ interpretation of the comparator standard that Young appeared to clarify has set pregnant workers back. In over two-thirds of post-Young pregnancy accommodations cases, courts have held that employers were permitted to deny pregnant workers accommodations under current federal law.[43] The legal test set out in Young has left courts, employers, and employees confused about when exactly the Pregnancy Discrimination Act requires pregnancy accommodations.[44]

For example, in Swanger-Metcalfe v. Bowhead Integrated Support Servs. LLC, a district court in Pennsylvania granted the employer’s motion to dismiss because Elizabeth Swanger-Metcalfe, an employee at Bowhead who requested accommodations, was unable to identify “similarly situated” employees. When Ms. Swanger-Metcalfe found out she was pregnant, she was told by her doctor that she should request to work only in well-ventilated areas. When she requested the accommodation from her employer, she was told that she would be sent home if she refused to work in the less well ventilated areas.[45] The court dismissed the case because, while she alleged that other  employees similar in ability to work had been accommodated, she did not provide “factual details as to how other employees” were accommodated in her complaint, prior to any discovery on these issues.[46] When viewed against the backdrop of COVID-19, this case takes on new significance. How many employers denied pregnant workers’ requests to work in better ventilated areas in the last year? And how many of those denials led to employers firing pregnant workers, or pregnant workers quitting to protect their health?

Adduci v. Fed. Express Corp.[47] is another particularly egregious case showcasing lower courts’ misapplication of Young’s comparator analysis. After becoming pregnant, Cassandra Adduci, an employee of FedEx in Tennessee, requested a temporary reassignment to comply with her physician’s lifting-restriction of 25 pounds. Instead, her employer placed her on unpaid leave. Although Ms. Adduci was able to provide the court with a spreadsheet documenting over 261 other part-time employees who were given temporary work reassignments in the same calendar year, the district court granted summary judgment in favor of her employer. The court found that the comparators in the spreadsheet did not “address the relevant aspects of [her] employment situation” and was therefore not a sufficient example of similarly situated comparators.[48] In 2020, Ms. Adduci would have been considered an essential worker, a critical part of our economy during a historic recession, but unable to convince her employer to provide her with basic protections. These cases are but a few examples of the difficult burdens of proof that courts are still imposing on pregnant workers post-Young.

It is also important to note that while some pregnant workers experiencing significant pregnancy complications have been able to obtain accommodations under the Americans with Disabilities Act or state law equivalents,[49] courts have been reluctant to treat the physical limitations and medical needs that can arise out of a normally-progressing pregnancy as disabilities.[50] Pregnancy is not considered a disability as a matter of law or logic, and thus courts have typically required plaintiffs seeking a pregnancy-related accommodation under the Americans with Disabilities Act to demonstrate that they have a significant pregnancy complication that constitutes a disability.[51] This framework leaves many pregnant workers with physical needs for accommodation unprotected. For instance, a woman may need properly fitting PPE to accommodate her growing pregnancy—a need indicative of a normally progressing pregnancy—yet may require an accommodation. In other circumstances, pregnant workers may seek accommodations precisely because they wish to prevent pregnancy complications that are likely in the absence of accommodation, yet courts have held that the Americans with Disabilities Act provides no right to such preventive accommodations.[52]

III. The COVID-19 pandemic has intensified the need for employers to support people with caregiving responsibilities.

The pandemic has revealed that our reliance on the underpaid and undervalued caregiving work of women of color, and women more generally, places an unsustainable burden on women, families, and the economy overall. Care—including child care and paid family and medical leave—supports our economy and makes all other work possible. Yet even before the pandemic, working people who most need access to these vital supports were least likely to have it.

Child care plays an essential role in supporting families, communities, and our economy overall, yet even before the pandemic, too many working people could not access or afford the child care they needed. In 2018, the average annual cost of full-time care ranged from just under $4,000 to more than $20,000 a year, depending on the location, the type of care, and the age of the child.[53] The difficulty of securing child care was harming women’s ability to stay in the workforce before the pandemic; a survey from 2018 found that mothers were 40% more likely than fathers to report that issues around child care negatively impact their careers.[54] 

The pandemic has only exacerbated the existing inadequacies of the child care system. Many child care programs were forced to close as families were unable to pay and operational costs grew too high. Indeed, there have been more than 170,000 child care jobs lost since February 2020;[55] nearly half of the child care jobs lost at the beginning of the pandemic have not yet returned. Providers that did stay open have faced staggering costs to ensure that children, families, and staff remained healthy.[56] Similar shocks occurred through systems families relied on for support with elder care and care of family members with disabilities.

The system-wide shock to our fragile caregiving infrastructure will continue to affect caregivers long after the current crisis has passed. The burdens of inaccessible child care are not being felt equally. Studies of parents with young children found that mothers were four to five times more likely to have reduced their work hours or adjusted their schedules because of caregiving than fathers.[57] Women exited the labor force in record numbers during the pandemic,[58] driven in large part by the inaccessibility of child care.[59]

Lack of access to paid family and medical leave also harms women’s health, wellbeing, and economic security. Before the pandemic, only one fifth of workers in the United States had access to paid family leave through their employers,[60] and just 40% had paid medical leave to address their own serious health conditions through an employer-provided short-term disability program.[61] For people working in low-wage and part-time jobs—most of whom are women—access is even more limited; among workers in the lowest 25% of wage earners, for example, only 9% had access to paid family leave.[62] The absence of comprehensive paid family and medical leave compounds the burden felt by caregivers and may contribute to the number of women leaving the workforce during the pandemic.

This may have larger ramifications in the longer term for women’s workforce participation. Companies routinely screen out applicants with long gaps in employment, which may have a disparate impact on women who stepped back from the paid workforce during the pandemic because of crushing caregiving needs.[63] If high quality, affordable child care continues to remain inaccessible, parents—and particularly mothers—may be unable to return to work or will need to reduce their hours and correspondingly their earnings. Through our Legal Network for Gender Equity, the National Women’s Law Center has heard from individuals expressing fear that the lack of child care will have long-term impacts on their ability to work. One worker lost her job responsibilities at the beginning of the pandemic because she had to take care of her children. Even when she was able to find childcare, her responsibilities did not return. She is worried that she will be fired because she is not the right “fit” or “flexible” enough. Lack of supports for child care will impair the ability of caregivers to support their families and may have long-term impacts on women’s financial security.[64]

Workplace policies that discriminate against caregivers particularly harm women, especially women of color. Women still shoulder the bulk of caregiving responsibilities,[65] and Black women and Latinas are especially likely to be both breadwinners and caregivers for their families.[66] The pandemic and ensuing recession have made it even harder for women to succeed in these dual roles, yet even before the events of this past year, too many women with caregiving responsibilities faced obstacles and discrimination in the workplace.

A. Caregivers regularly face discrimination in the workplace based on gender stereotypes and circumstances have only worsened during the pandemic.

Despite historic gains in the paid labor force prior to the pandemic,[67] women continue to experience discrimination at work because of employers’ stereotypes about the competence and commitment of mothers and other women with family caregiving responsibilities. Congress and the Supreme Court have long recognized the negative impact that stereotypes regarding caregivers in the workplace have on women’s employment opportunities and how they have been used to “justif[y] discrimination against women when they are mothers or mothers-to be.”[68] Yet despite this recognition, research has shown that women who are mothers continue to experience discrimination in hiring and in pay—sometimes referred to as the “motherhood penalty”—and are recommended for hire less often, recommended lower starting salaries, and rated by employers as less competent than non-mothers with nearly identical resumes.[69] By contrast, men who were fathers were recommended for hire more often, regarded as more competent, and recommended for higher salaries than men without children.[70]

Although no federal law explicitly prohibits caregiver discrimination, Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the recently enacted Families First Coronavirus Response Act all contain provisions that protect caregivers. In Back v. Hastings on Hudson Union Free School District,[71] one of the leading cases on caregiver discrimination under Title VII, the Second Circuit held that denial of employment opportunities based on stereotypical assumptions about a mother’s commitment to her job constituted unlawful sex discrimination. Elana Back was denied tenure as a school psychologist by supervisors who told her that it was “not possible for [her] to be a good mother and have this job” and that they “did not know how she could perform her job with little ones.”[72] The Supreme Court’s recent decision in Bostock v. Clayton County reaffirms the foundations of the sex-plus analysis under Title VII, analogizing an employer firing someone for being gay or transgender to employer’s discriminatory policy based on “motherhood.”[73]

Other circuits have similarly held that discrimination against women as mothers or caregivers can constitute sex-plus discrimination, disparate treatment on the basis of sex and another characteristic, in violation of Title VII.[74] Fathers and other male caregivers may also face discrimination for failing to adhere to traditional gender stereotypes that men should not have caregiving responsibilities at home.[75]

Research from before the pandemic shows an increase in instances of discrimination against caregivers, and experts anticipate the pandemic will accelerate this trend.[76] Indeed, there are already numerous stories from parents across the country alleging discrimination because of their heightened caregiving responsibilities during the pandemic. Drisana Rios was working from home during California’s lockdown in 2020 while providing care for her four- and one-year-old children.[77] Her employer instructed Rios that “children are not to be heard during phone calls” and grew frustrated when she shared that it would be difficult to participate in morning calls without her children present.[78] Her employer repeatedly refused to account for her schedule and regularly planned calls during her children’s mealtimes. Despite no decline in her job performance, Rios’s employer told her that they “can’t have client calls with kids or noise in the background” and that she needed to “take care of [her] kid situation.”[79] Rios has filed a lawsuit alleging gender discrimination under California state law.

Similar stories are all too common. For example, a single mother who was the primary caregiver for her daughter with a disability was fired after she asked to continue teleworking so she would not put her daughter at increased risk of exposure to COVID-19.[80] A breastfeeding mother, who chose to wait to receive the vaccine until the potential risks for breastfeeding are better understood, presented her employer with a note from her physician supporting her request to continue working remotely. Her request was denied and she was instructed to return to on-site work with no accommodations.[81]

While the Families First Coronavirus Response Act did grant employees some new protections for paid caregiving leave and sick time, complaints brought by eligible employees demonstrate the lack of understanding and unwillingness by employers to make even temporary accommodations for caregivers. For example, Stephanie Jones brought one of the first complaints under the new law after she was denied accommodations in her schedule and requests for leave to care for her son.[82] Jones initially asked her employer for two hours of “flex time” each day to “handle her child care issues and the continued ability to work from home” while her son was home and child care was unavailable.[83] Jones made both formal and informal requests, but her employer accused her of using the law like a “hammer to force management into making decisions.”[84] She was fired three days later. Stephanie Jones’ case is unfortunately not unique among caregivers during the pandemic.[85]

These cases underscore not only the burden that has been placed on women and caregivers who have been saddled with the dual responsibilities of working and providing full-time care during the pandemic, but also the harm that occurs when employers fail to understand the rights of caregivers in the workplace. The patchwork of protections currently provided by federal law often leads to discriminatory policies and practices that harm caregivers, disproportionately women.  While four states and dozens of cities and counties across the country have passed laws that explicitly prohibit discrimination against employees because they are parents or caregivers,[86] there remains a need for additional guidance and support for employers and employees at the federal level.

The need to manage caregiving responsibilities alongside workplace obligations will continue to be a pressing issue for workers even as we begin to look ahead to a post-pandemic world. For some, the pandemic may have created new needs; for others, their pre-pandemic reality was already unworkable. Employers need guidance on how to support and accommodate workers with caregiving responsibilities—including extending telework policies to allow more employees to work from home while providing care; providing employees with increased control and flexibility in their work shifts or schedules; and modifying attendance policies[87] that can punish workers for medical or caregiving absences—and employees need to know their rights.

B. Unstable work schedules can have a disparate negative impact on women workers based on their caregiving responsibilities.

Beyond explicit discrimination against people with caregiving responsibilities, many workplace policies have a disproportionate negative impact on caregivers. Unstable, unpredictable, and inadequate work hours impose high costs on working people, their families, and our broader economy. Notwithstanding guidance from this Commission that unfavorable, punitive, or abusive scheduling practices may constitute unlawful retaliation,[88] employers still regularly engage in these practices.

Many low-paid jobs that are primarily held by women—such as cashiers, maids and housekeepers, and restaurant servers—are marked by work scheduling policies and practices that pose particular challenges for workers with significant responsibilities outside of their jobs, including caregiving, pursuing education and workforce training, or holding down a second job.[89] Across industries, more than one-third of wage and salary workers have employers who decide schedules without their input,[90] and in surveys of hourly workers in retail and food service jobs—two industries where unpredictable scheduling practices are common—more than three-quarters of workers report having little to no input into their work schedules.[91] Recent years have also seen a rise in the use of “just-in-time” scheduling practices that base workers’ schedules on perceived consumer demand and maximize flexibility for the employer at the expense of the employee. Some employers require employees to have completely open availability in their schedules, 24 hours a day and seven days a week, to be eligible for full-time hours. These practices rarely take employee needs or preferences into account and typically produce very little advance notice of work schedules, with frequent last-minute changes.[92]

Women working in low paid jobs with unstable and unpredictable scheduling practices are more likely to be single parents,[93] more likely to have children with special needs,[94] and more likely to care for elderly or sick relatives.[95] They also have higher rates of illness themselves.[96] At the same time, they have fewer resources to pay for child and elder care than other workers, and are far less likely to have paid sick and vacation days or job-protected leave under the Family and Medical Leave Act.[97] But with little to no control over their work schedules, being able to plan for or respond to the exigencies of daily life—for example, ending a shift on time to pick up a child from school or scheduling time to take an elderly parent to a doctor’s appointment—is simply not an option.[98] When abusive scheduling practices conflict with caregiving responsibilities, workers may be forced to take unpaid leave or drop out of the workforce entirely, putting major financial strain on themselves and their families.[99]

Unstable schedules and inadequate work hours are problems that pre-date the pandemic and economic recession caused by COVID-19. But the harm of these workplace practices is exacerbated as millions of workers risk their own health and safety at jobs with few protections, volatile schedules, and inadequate hours in an effort to support themselves and their families. Parents are also attempting to navigate the protocols put in place by schools to keep children and teachers safe. Instability and regularly shifting school schedules—including hybrid in-person learning models, asynchronous learning, and quarantine periods for students—have only exacerbated the burden felt by caregivers who themselves have unstable work schedules. At a recent House Ways and Means Committee hearing on child care and paid leave, one woman caring for both her children and her mother with Alzheimer’s shared how the overlapping care responsibilities had created nearly insurmountable challenges during the pandemic:

When school opened for my son, things became even more unsure. In the age of Covid, if anyone has a cough or sneeze, you have to pick them up, get them tested. At one point, this was happening every other week. My hours got cut more — I understood, but it’s an impossible navigation. My lowest point came one day when the school called the restaurant to say I had to get my son, and then my mom called to say she was having a cardiac episode and I had come right away to take her to the hospital. I felt pulled in so many directions, failing in all of them. Would my boss cut my hours for the rest of the week? I was trying to be everything to everyone and failing at all of it. Like so many women in this pandemic, I can’t work and I can’t not work. It’s like two puzzle pieces came in the box but they don’t fit together.[100]

Because women hold the lion’s share of caregiving responsibilities, they are likely to be especially harmed by these practices—and indeed this may be one reason why we have seen women disproportionately losing jobs in sectors such as retail and leisure and hospitality during the pandemic.

IV. TIME’S UP Legal Defense Fund data demonstrates that sexual harassment and related retaliation continue to be significant issues during the pandemic.

For the past three years, the National Women’s Law Center Fund has housed and administered the TIME’S UP Legal Defense Fund. The TIME’S UP Legal Defense Fund connects people experiencing workplace sexual harassment and related retaliation with attorneys and provides funding for legal representation and public relations support in select cases that meet various priority criteria.  In that time, we have assisted nearly 5000 individuals and funded over 260 cases. What those requests for assistance have confirmed is that sexual harassment is a substantial barrier to equality, economic security, and safety. It is widespread, affecting individuals in every state, in every kind of workplace setting and industry, and at every level of employment. We hear from workers of all kinds, from executives to restaurant workers to home health care workers to teachers. Harassment is a pervasive problem that imposes enormous financial, psychological, and professional costs for workers.

Based on information gathered through our intakes, the pandemic and its impacts created an opportunity for increased sexual harassment and related retaliation. A year into the pandemic, the requests for assistance reveal several disturbing trends.

The COVID-19 pandemic has created new opportunities for employers to retaliate. Retaliation against those who report sexual harassment is rampant. Our analysis of over 3000 requests for legal assistance prior to the pandemic showed that over 7 out of 10 workers experiencing sexual harassment also reported being retaliated against for seeking assistance in addressing that harassment.[101] Several individuals told us that their employers used the downsizing or shutdowns due to COVID-19 as an excuse to get rid of workers who had complained about sexual harassment. Individuals told us that they had complained about sexual harassment and then were one of the few employees let go because of the pandemic or not called back to work after layoffs.

For many workers, COVID-19 exacerbated already difficult workplace harassment situations. One woman told us that she was regularly harassed by her supervisor and complained about it. When COVID-19 hit, her childcare arrangement changed because her regular provider could not be exposed to her for fear of contracting COVID at work. She needed a transfer so that her work schedule could accommodate child care. Her supervisor refused the transfer. Another worker granted asylee status in the U.S. was sexually harassed and treated differently than U.S.- born workers by her supervisor. During the pandemic, her supervisor rejected her request to work from home in part to protect her older mother who lived with her. She was eventually terminated.

Even before the pandemic and its impacts on the leisure and hospitality industry, food service workers’ reliance on tips to support themselves made them particularly vulnerable to sexual harassment. A recent report exploring food service workers’ experiences during the pandemic revealed that many workers surveyed reported being subjected to significantly more sexual harassment, compounded by having to ask customers to comply with COVID-19 safety protocols. A significant portion of sexualized customer comments (detailed in the report) included requests by male customers that female service workers remove their masks so that customers could judge their appearance, and implicitly, determine their tips on that basis.[102] For example, one service worker reported that customers “[a]sk[ed] to see my face because ‘they can tell I’m pretty’ feeling like my tips are dependent on complying but not wanting to risk my personal safety.”[103]

The COVID-19 pandemic is also increasing employees’ economic insecurity and affecting prospects for re-employment. Before the pandemic, one in five workers requesting assistance from the TIME’S UP Legal Defense Fund mentioned that sexual harassment affected their financial health. On one hand, with the current high rates of unemployment, employers have greater ability to pick and choose among job applicants while hiring. One bartender told us she had been out of work for several months and was desperate. She thought she had found a position for which she was qualified, but the company refused to hire her because she was not single (presumably associating marital status with caregiver status). On the other hand, individuals looking for work may find themselves faced with impossible choices between financial security and workplace protections. Two workers in different industries told us that they are worried about what will happen to them now that they have complained about harassment because no one in their industry is hiring due to the pandemic. A worker with a sexual harassment complaint against her boss told us that she signed a release of all legal claims when she lost her job because of the pandemic because she needed the severance pay.

Before this crisis, survivors said “me too,” demanded justice, and started to transform our culture and institutions. A number of employers, including institutions and companies in STEM workplaces[104] and in industries with low paid jobs[105] had begun to explore and implement changes related to reporting mechanisms, policies, and interactive trainings to address issues particular to their fields.[106] That progress is at risk without greater enforcement and guidance from the Commission, so that employers understand their responsibilities and can take steps not only to respond to harassment and retaliation, but to prevent it. And in the depths of a recession when obtaining and keeping a job is particularly precarious, workers also must be made aware of and feel safe enforcing their rights.  The pandemic cannot continue to be used an excuse to sweep harassment under the rug, increase retaliation, and silence workers.

V. Recommendations for EEOC action.

The COVID-19 pandemic has laid bare the deep gaps in our economic and social infrastructure that have resulted from decades of underinvestment and policy choices that failed to center the needs of women, especially Black, Latina, Native American, and Asian American and Pacific Islander women. We will soon be faced with the daunting task of rebuilding a post-pandemic economy and addressing the deep and lasting damage done to working women. The Commission is well-placed to take much-needed action in this moment to support our nation’s workforce.

We offer the following recommendations: 

EEOC Processes

• To correctly assess the civil rights impacts of the COVID-19 crisis, the EEOC should track and code charges and intakes that are COVID-19 related. It is especially important to track this data along with data that will help the agency pinpoint which communities and industries have been most affected by the pandemic, and what kinds of issues individuals experienced, to help guide targeted enforcement and reveal systemic issues.
• The EEOC’s enforcement role is critical for workers, and the agency must have sufficient staff and resources to enforce our civil rights laws. We know from the requests for assistance we receive that it can be difficult for individuals, particularly those in low paid jobs, to find an attorney; and even when an individual can find an attorney, they often cannot afford one. The EEOC process, which gives workers an opportunity to challenge discrimination without a lawyer, may be the only chance some individuals have. Timely, efficient EEOC investigations, mediations, conciliations, and litigation can increase individuals’ understanding of and trust in the EEOC, and thus their willingness to report and challenge discrimination in the first instance. Accordingly, the Commission should revisit its January 2021 rule revising its conciliation procedures and reinstate the delegation of litigation authority to the EEOC General Counsel and career staff, in order to streamline its procedures and promote timely and efficient enforcement.
• The EEOC should prioritize addressing the intersection of sex discrimination with discrimination on other bases, such as race, age, or disability, including by prioritizing them in enforcement and guidance. Our analysis of TIME’S UP Legal Defense Fund requests for assistance reveals that sexual harassment often occurs with other types of harassment: 26% of Black workers, 23% of AAPI workers, and 16% of Latinx workers reported that the sexual harassment they faced was mixed with harassment based on their race.[107]
• As it did during the height of the pandemic in 2020, the EEOC should consider tolling or extending filing deadlinesfor civil rights charges and complaints, so people do not lose rights because of the crisis.
• In its settlements, the EEOC should include provisions for in-person training, worker involvement in creating the policies to respond to discrimination, evaluation of anti-discrimination measures, and public reporting on the effectiveness of the anti-discrimination measures.

Equal Pay 

• Consistent with its strategic enforcement priorities, the EEOC should seek federal sector case opportunities as well as litigation and amicus opportunities to bring attention to the problem of pay discrimination and continuing gender and racial wage gaps.
• While working to reinstate the EEO-1 data collection[108], the EEOC should hold a hearing, public meeting, or roundtable about pay data collection, designed to set out the value and uses of the collection, build a record, and rebut critiques of the EEO-1 component 2.
• The EEOC should develop technical assistance documents that promote promising practices for advancing equal pay and closing gender and racial wage gaps, such as refraining from imposing pay secrecy; including salary ranges in job announcements; conducting pay equity analyses and sharing the results with employees; and refraining from (and instructing recruiters or consultants they use to refrain from) relying on salary history to set pay. The EEOC should also conduct an analysis on the use of salary history to set compensation in the federal sector, and how reliance on salary history drives gender and racial wage gaps.

Pregnancy Accommodations 

• The EEOC should ensure that pregnant workers are not forced to choose between their jobs and the health of their pregnancies by prioritizing investigation and resolution of charges brought by pregnant workers seeking accommodations related to COVID-19.
• The EEOC should promptly provide emergency guidance on pregnancy accommodations and COVID-19 for all employers, as well as technical assistance documents for employees and employers alike about their rights.
• The EEOC should look for federal sector case opportunities as well as litigation and amicus opportunities to clarify the scope of Young v. UPS, including establishing the legal principle that a live comparator is not necessary to make a claim of pregnancy discrimination under Young if a pregnant employee can identify policies that would accommodate groups of nonpregnant employees with similar limitations in ability to work.The Commission should consider updating its pregnancy discrimination enforcement guidance to provide greater clarity on this point.

Caregiver Discrimination  

• The EEOC should update its 2007 enforcement guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, to better reflect the issues of the last fifteen years, with particular attention to the effects of the COVID-19 pandemic. This should include clarification that certain abusive work scheduling practices—including just-in-time scheduling, requiring on-call shifts, and retaliating against employees who request schedule changes—that are unsupported by business necessity may constitute unlawful discrimination on the basis of sex because of their disparate impact on women.
• The EEOC should prioritize enforcement actions addressing sex discrimination against caregivers.
• The EEOC should continue to update its online guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws with best practices to accommodate and protect caregivers, to include greater supports for employees seeking flexible working arrangements when returning to work after the COVID-19 pandemic. The guidance should also include examples of prohibited discrimination against caregivers based on sex and associational discrimination against those who are caregivers for individuals with disabilities.
• The EEOC should coordinate joint outreach and education efforts with the Department of Labor, focusing on low-paid and service-sector jobs, to increase awareness around existing protections for caregivers.

Harassment

• The EEOC should issue its long-delayed enforcement guidance on harassment, including sexual harassment, that makes employers’ obligations clear and accounts for what we have learned in the last three years. This guidance must address pervasive retaliation against those who report harassment, and how employers’ responses to harassment must account for this. The guidance should also address the role that employer-imposed non-disclosure provisions in settlement agreements play in silencing victims and covering up harassment. Finally, the guidance should address online workplace harassment using technology, which has only increased during the pandemic.
• The EEOC must improve its response to sexual harassment in the federal sector. Federal sector employees represent the second highest number of requests for assistance through the TIME’S UP Legal Defense Fund, and the TIME’S UP Legal Defense Fund is currently funding several cases against the federal government. Frequently TIME’S UP Legal Defense Fund intakes show that supervisors who have harassed employees are simply transferred to other locations, workers who are harassed have their claims ignored, and claims languish at the EEOC as they await adjudication by an ALJ.

Thank you for the opportunity to address the Commission on these important issues, and we look forward to working with you to implement these recommendations and to ensure that all individuals can work with equality, safety, and dignity.

[1] Jasmine Tucker, The Wage Gap Has Robbed Women of Their Ability to Weather COVID-19, Nat’l Women’s Law Ctr. (Mar. 2021), https://nwlc.org/resources/the-wage-gap-has-robbed-women-of-their-ability-to-weather-covid-19.

[2] Id.

[3] For instance, women account for 77.1% of the health care workforce, and women—disproportionately Black women and Latinas—make up more than eight in ten of those working as home health aides, personal care aides, and nursing assistants. Claire Ewing-Nelson, More Than Three in Four of the Health Care Workers Fighting COVID-19 Are Women, Nat’l Women’s Law Ctr. (Dec. 2020), https://nwlc.org/resources/more-than-three-in-four-of-the-health-care-workers-fighting-covid-19-are-women.

[4] Claire Ewing-Nelson, One in Five Child Care Jobs Have Been Lost Since February, and Women Are

Paying the Price, Nat’l Women’s Law Ctr. (Aug. 2020), https://nwlc.org/wp-content/uploads/2020/08/ChildCareWorkersFS.pdf.

[5] See The Wage Gap: The Who, How, Why, and What To Do, Nat’l Women’s Law Ctr. (Oct. 2020), https://nwlc.org/wp-content/uploads/2019/09/Wage-Gap-Who-how.pdf. Overall, when the wages of all women are compared to the wages of all men, women in the United States are only paid 82 cents for every dollar paid to men. The gender wage gap is widest for many women of color; among women who hold full-time, year-round jobs in the United States, Black women are typically paid 63 cents, Native American women 60 cents, and Latinas just 55 cents for every dollar paid to white, non-Hispanic men. White, non-Hispanic women are paid 79 cents and Asian women 87 cents for every dollar paid to white, non-Hispanic men, and wage gaps for Asian American and Pacific Islander women of some ethnic and national backgrounds are much larger; See Tucker supra note 1 at 2, “Mothers working full-time, year-round outside the home are typically paid just 75 cents for every dollar paid to fathers, a gap that translates to a loss of $1,275 a month or $15,300 annually.”

[6] Tucker, supra note 1, at 4.

[7] Id.

[8] Id.

[9] Amanda Fins, Women in Leisure and Hospitality Are Among the Hardest Hit by Job Losses and Most at Risk of Covid-19 Infection, Nat’l Women’s Law Ctr. (Nov. 2020), https://nwlc.org/wp-content/uploads/2020/11/LeisureFS.pdf.

[10] National Women’s Law Center calculations based on U.S. Department of Labor, Bureau of Labor Statistics, Employment Situation Summary, Historical Data for Table B-5: Employment of women on nonfarm payrolls by industry sector, seasonally adjusted, available at https://www.bls.gov/webapps/legacy/cesbtab5.htm.

[11] Claire Ewing-Nelson & Jasmine Tucker, Only About One Third of the 916,000 Jobs Gained Last Month Went to Women, Nat’l Women’s Law Ctr. (Apr. 2021), https://nwlc.org/wp-content/uploads/2021/04/March-Jobs-Day-2021-v1.pdf.

[12] See Amanda Fins, COVID-19 and the Ensuing Recession Puts Women in Retail at Risk, Nat’l Women’s Law Ctr. (July 2020), https://nwlc.org/resources/covid-19-and-the-ensuing-recession-puts-women-in-retail-at-risk.

[13]  National Women’s Law Center calculations based on U.S. Department of Labor, Bureau of Labor Statistics, Employment Situation Summary, Historical Data for Table B-5a: Employment of women on nonfarm payrolls by industry sector, seasonally adjusted, https://www.bls.gov/web/empsit/ceseeb5a.htm.

[14] Claire Ewing-Nelson, As State and Local Governments Face a Fiscal Crisis, Women’s Jobs Are on the Line, Nat’l Women’s Law Ctr. (July 2020), https://nwlc.org/wp-content/uploads/2020/07/Governmentworkersfactsheet-2.pdf.

[15] National Women’s Law Center calculations based on U.S. Department of Labor, Bureau of Labor Statistics, Employment Situation Summary, Historical Data for Table B-5a: Employment of women on nonfarm payrolls by industry sector, seasonally adjusted, https://www.bls.gov/web/empsit/ceseeb5a.htm.

[16] See Ewing-Nelson & Tucker, supra note 11.

[17] Id.

[18] See Ewing-Nelson & Tucker, supra note 11.

[19] Id.

[20] Claire Ewing-Nelson, Another 275,000 Women Left the Labor Force in January, Nat’l Women’s Law Ctr. (Feb. 2021), https://nwlc.org/wp-content/uploads/2021/02/January-Jobs-Day-FS.pdf.

[21] While the wage gap may have shrunk recently by some measures, it has done so for the wrong reasons. An analysis of weekly earnings data during the pandemic reveals although that the wage gap narrowed, it was because the lowest paid women were more likely to lose their jobs during COVID, meaning they are no longer counted when calculating women’s median weekly earnings. Equal Pay Day 2021: The Results of a COVID-Impacted Economy, Inst. Women’s Pol’y Research (Mar. 24, 2021), https://iwpr.org/equal-pay-day-2021-the-results-of-a-covid-impacted-economy/.

[22] Combating Punitive Pay Secrecy Policies, Nat’l Women’s Law Ctr. (Feb. 2019) https://nwlc.org/wp-content/uploads/2019/02/Combating-Punitive-Pay-SecrecyPolicies.pdf.

[23] See Morgan Harwood & Sarah David Heydemann, By the Numbers: Where do Pregnant Women Work?, Nat’l Women’s Law Ctr. 2 (Aug. 2019), https://nwlc.org/wp-content/uploads/2019/08/Pregnant-Workers-by-the-Numbers-v3-1.pdf. National Women’s Law Center calculations based on American Community Survey (ACS) 2017 1-year estimates using IPUMS-USA, http://usa.ipums.org/usa. The percentage of pregnant workers in the occupation is calculated by reference to the share of women in the occupation who have given birth in the last year.

[24] Id.

[25] Erica M. Lokken et al., Higher SARS-CoV-2 Infection Rate in Pregnant Patients, Am. J. Obstetrics and Gynecology (2021), https://www.ajog.org/article/S0002-9378(21)00098-3/pdf.

[26] Pregnant People: At Increased Risk for Severe Illness from COVID-19, Ctr. for Disease Control & Prevention (Mar. 5, 2021) https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/pregnant-people.html (“pregnant people are at an increased risk for severe illness from COVID-19 when compared to non-pregnant people”).

[27] See generally Jasmine Tucker & Julie Vogtman, When Hard Work Is Not Enough: Women in Low-Paid Jobs, Nat’l Women’s Law Ctr. (Apr. 2020), https://nwlc.org/wp-content/uploads/2020/04/Women-in-Low-Paid-Jobs-report_pp04-FINAL-4.2.pdf.

[28] Expecting or Recently Had a Baby? Learn About Blood Clots, Ctr. for Disease Control & Prevention (Feb. 7, 2020) https://www.cdc.gov/ncbddd/dvt/infographics/blood-clot-pregnancy-info.html (“Most blood clots can be prevented. Talk to your doctor, know your risk, and work with your provider to prevent blood clots.... Drink plenty of liquids."); Urinary Tract Infections, Off. on Women’s Health, Dept. of Health & Human Servs. (Nov. 2017), https://www.womenshealth.gov/files/documents/fact-sheet-urinary-tract-infections.pdf) (“Changes in hormone levels during pregnancy raise your risk for UTIs. . . . You can take steps to help prevent a UTI…Urinate when you need to. Don’t go without urinating for longer than three or four hours. The longer urine stays in the bladder, the more time bacteria have to grow. . . . Try to drink six to eight glasses of fluid per day.”).

[29] National Women’s Law Center calculations based on 2019 American Community Survey using Steven Ruggles et al., IPUMS USA: Version 11.0 [dataset]. Minneapolis, MN: IPUMS, 2021. https://doi.org/10.18128/D010.V11.0.

[30] See Harwood & Heydemann, supra note 23. The percentage of pregnant workers in the occupation is calculated by reference to the share of women in the occupation who have given birth in the last year.

[31] Linda Laughlin, US Census Bureau, Current Population Reports, Maternity Leave and Employment Patterns of First-Time Mothers: 1961-2008 at Table 2, https://www.census.gov/library/publications/2011/demo/p70-128.html.

[32] Young v. UPS, 135 S. Ct. 1338 (2015).

[33] See 42 U.S.C. § 2000e(k); 29 C.F.R. §1604, App. Q&A 5.

[34] Young at 1354.

[35] Id.

[36] Id.

[37] Id. at 1353-54.

[38] Young v. United Parcel Serv., Inc., 707 F.3d 437, 450-51 (4th Cir. 2013).

[39] 135 S.Ct. at 1354.

[40] Id.

[41] Id. at 1354-55.

[42] Id.

[43] See Dina Bakst, Elizabeth Gedmark, & Sarah Brafman, A Better Balance, Long Overdue: It Is Time for the Federal Pregnant Workers Fairness Act (May 2019), https://www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf.

[44] Legg v. Ulster Cty., No. 109CV550 (FJS/RFT), 2017 WL 3207754 (N.D.N.Y. July 27, 2017), aff'd, 832 F. App'x 727 (2d Cir. 2020) (finding against Ann Marie Legg after a judge gave jury instructions misinterpreting the significant burden standard under Young v. UPS. The court found that Legg did not have a valid PDA claim after she sued for being denied light duty accommodations. The circuit court affirmed on the grounds that the light duty policy was not inherently discriminatory and the plaintiff failed to show disparate impact.); Santos v. Wincor Nixdorf, Inc., No. 19-50046, 2019 WL 3720441 (5th Cir. Aug. 7, 2019) (affirming grant of summary judgment against employee seeking pregnancy accommodations, Michelle Santos, by relying on a pre-Young decision by the Fifth Circuit that required the circumstances of the employee-comparator be “nearly identical”.); Jackson v. J.R. Simplot Co., 666 F. App'x 739 (10th Cir. 2016) (finding against Plaintiff, Stacey Jackson, who requested light duty and to limit exposure to chemicals. Although Plaintiff was able to present evidence of five other employees who were granted light duty when they requested an accommodation, the Court rejected the argument that the failure to accommodate was discriminatory because the other employees did not also request limiting exposure to chemicals.).

[45] No. 1:17-CV-2000, 2019 WL 1493342, at *2 (M.D. Pa. Mar. 31, 2019).

[46] Id. at *8.

[47] 298 F. Supp. 3d 1153 (W.D. Tenn. 2018).

[48] Id. at 1160.

[49] 42 U.S.C. § 12111 et seq.; 21 V.S.A. § 495 et seq.

[50] Nat’l Women’s Law Ctr. & A Better balance, It Shouldn’t Be a Heavy Lift: Fair Treatment for Pregnant Workers 14 (2013), https://nwlc.org/resource/it-shouldnt-be-heavy-lift-fair-treatment-pregnant-workers/.

[51] See, e.g., Lang v. Wal-Mart Stores E., L.P., 2015 WL 1523094, at *2 (D.N.H. Apr. 3, 2015) (“[P]regnancy is not an actionable disability, unless it is accompanied by a pregnancy-related complication.”); Annobil v. Worcester Skilled Care Ctr., Inc., 2014 WL 4657295, at *11 (D. Mass. Sept. 10, 2014) (granting summary judgment for defendant where plaintiff “provides no legal argument as to whether such symptoms [including headaches, nausea and vomiting] differ from normal symptoms of pregnancy and how these complications are disabling”); Mayorga v. Alorica, Inc., 2012 WL 3043021, at *5 (S.D. Fla. July 25, 2012) (Post-ADAAA, “[p]regnancy, absent unusual circumstances, is not considered a disability under the ADA.” (collecting cases)); Spees v. James Marine, Inc., 617 F.3d 380, 397 (6th Cir. 2010) (“Pregnancy-related conditions have typically been found to be impairments where they are not part of a ‘normal’ pregnancy.”).

[52] See, e.g., Swanger-Metcalfe, 2019 WL 149334, *11 (“While Plaintiff argues that working in the sand room could have caused her to sustain pregnancy complications at some point in the future, Plaintiff does not allege that she suffered from any pregnancy-related complications at the time she sought an accommodation. As a result, Plaintiff’s claim of discrimination under the ADA fails because she has not alleged facts sufficient to support a reasonable inference that she is disabled under the ADA.”).

[53] See The US and the High Price of Child Care, Child Care Aware of Am. (2019), https://info.childcareaware.org/download-price-of-care-extras?submissionGuid=7a44f26f-34ad-4e21-b1a3-4f35843e2a11 (Appendices I and II).

[54] Leila Schochet, The Child Care Crisis Is Keeping Women Out of the Workforce, Ctr. for Am. Progress (Mar. 2019), https://www.americanprogress.org/issues/early-childhood/reports/2019/03/28/467488/child-care-crisis-keeping-women-workforce.

[55] Ewing-Nelson, supra note 20.

[56] Simon Workman & Steven Jessen-Howard, The True Cost of Providing Safe Child Care During the Coronavirus Pandemic, Ctr. for Am. Progress (Sept. 2020), https://www.americanprogress.org/issues/early-childhood/reports/2020/09/03/489900/true-cost-providing-safe-child-care-coronavirus-pandemic.

[57] Julie Kashen, Sarah Jane Glynn, & Amanda Novello, How COVID-19 Sent Women’s Workforce Progress Backward, Ctr. for Am. Progress (Oct. 2020), https://www.americanprogress.org/issues/women/reports/2020/10/30/492582/covid-19-sent-womens-workforce-progress-backward.

[58] A Year of Strength & Loss: The Pandemic, The Economy, & The Value of Women’s Work, Nat’l Women’s Law Ctr. (Mar. 2021), https://nwlc.org/wp-content/uploads/2021/03/Final_NWLC_Press_CovidStats.pdf.

[59] Misty L. Heggeness & Jason M. Fields, Working Moms Bear Brunt of Home Schooling While Working During COVID-19, U.S. Census Bureau (Aug. 2020), https://www.census.gov/library/stories/2020/08/parents-juggle-work-and-child-care-during-pandemic.html.

[60] U.S. Dep’t of Labor, Bureau of Labor Statistics (BLS), National Compensation Survey: Employee Benefits in the United States (Mar. 2020), https://www.bls.gov/ncs/ebs/benefits/2020/employee-benefits-in-the-united-states-march-2020.pdf.

[61] Id.

[62] Id.

[63] Olivia Rockeman, Reade Pickert, & Catarina Saravia, Moms Are Struggling to Break Back Into the U.S. Workforce, Bloomberg (Apr. 16, 2021), https://www.bloomberg.com/news/articles/2021-04-16/labor-participation-rate-2021-women-especially-moms-lag-behind-everyone-else. See also Matthew O’Brien, The Terrifying Reality of Long-Term Unemployment, The Atlantic (Apr. 13, 2013) https://www.theatlantic.com/business/archive/2013/04/the-terrifying-reality-of-long-term-unemployment/274957.

[64] See generally Robert Paul Hartley et al., A Lifetime’s Worth of Benefits: The Effects of Affordable, High-quality Child Care on Family Income, the Gender Earnings Gap, and Women’s Retirement Security, Nat’l Women’s Law Ctr. & Ctr. on Poverty & Social Pol’y at Columbia Univ. (Mar. 2021), https://nwlc.org/wp-content/uploads/2021/04/A-Lifetimes-Worth-of-Benefits-_FD.pdf.

[65] See BLS, American Time Use Survey, Table 1: Time spent in detailed primary activities and percent of the civilian population engaging in each activity, averages per day by sex, 2019 annual averages, U.S. Dep’t of Labor (June 25, 2020), https://www.bls.gov/news.release/atus.t01.htm.

[66] See, e.g., Sarah Jane Glynn, Breadwinning Mothers Are Critical to Families’ Economic Security, Ctr. for Am. Progress (March 2021), https://www.americanprogress.org/issues/women/reports/2019/05/10/469739/breadwinning-mothers-continue-u-s-norm; Tucker & Vogtman, supra note 27, at 6.

[67] Rachel Siegel, Women Outnumber Men in the American Workforce for Only the Second Time, Wash. Post (Jan. 20, 2020) https://www.washingtonpost.com/business/2020/01/10/january-2020-jobs-report.

[68] Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003) (quoting The Parental and Medical Leave Act of 1986: Joint Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 33 (1986)).

[69] Shelley J. Correll, Stephan Benard, & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112 Am. J. Soc 1297, 1315-17 (2007), https://www.journals.uchicago.edu/doi/10.1086/511799.

[70] Id.

[71] 365 F.3d 107 (2d Cir. 2004).

[72] Id. at 115; see also Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam) (first recognizing “sex-plus” discrimination in holding that an employer policy of not hiring women with preschool-age children, but no corresponding policy against hiring men with preschool-age children, was sex-based discrimination).

[73] 140 S. Ct. 1731, 1744 (2020) (“In Phillips [v. Martin Marietta], the employer could have accurately spoken of its policy as one based on “motherhood.” In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in . . .  Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.”).

[74] See, e.g., Chadwick v. WellPoint, Inc., 561 F.3d 38, 44 (1st Cir. 2009) (“the assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and that adverse job actions on that basis constitute sex discrimination.”); Lust v. Sealy, Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003) (upholding jury verdict for plaintiff whose supervisor admitted that he did not recommend her for a managerial role because he did not think she would want to relocate her family), aff’d on other grounds, 383 F.3d 580 (7th Cir. 2004).

[75] See e.g., Knussman v. Maryland, 272 F.3d 625, 630 (4th Cir. 2001) (a male employee was told that there was no way he could be considered the primary caregiver unless his wife was “'in a coma or dead.”).

[76] Cynthia Thomas Calvert, Protecting Parents During Covid-19: State and Local FRD Laws Prohibit Discrimination at Work, Ctr. for WorkLife Law 5 (Nov. 2020), https://worklifelaw.org/wp-content/uploads/2020/11/Protecting-Parents-During-Covid-19-State-and-Local-FRD-Laws.pdf.

[77] Complaint, Drisana Wallace v. Hub International Insurance Services Inc. et al., no. 37-2020-00019040; see also Allyson Waller, Woman Says She Was Fired Because Her Children Disrupted Her Work Calls, N.Y. Times (July 8, 2020), https://www.nytimes.com/2020/07/08/us/drisana-rios-lawsuit-hub-international.html.

[78] Id.

[79] Id.

[80] Joan C. Williams, Real Life Horror Stories from the World of Pandemic Motherhood, N.Y. Times (Aug. 6, 2020), https://www.nytimes.com/2020/08/06/opinion/mothers-discrimination-coronavirus.html.

[81] Declaration for Susan Dunn at 3, Mihal v. McMaster, https://www.aclu.org/legal-document/mihal-v-mcmaster-declaration-susan-dunn.

[82] Complaint, Jones v. Eastern Airlines, LLC et al. no. 2:20-cv-01927 (Apr. 16, 2020).

[83] Id.

[84] Id.

[85] See, e.g., Donohew v. America's Insurance Associates, Inc., no. 8:20-cv-01442 (June 23, 2020) (When Elizabeth Donohew requested time off work to care for her daughter during pandemic-related school closure, her employer suggested she “simply drop her daughter at the YMCA for $95.00 per week.” Donohew was put on unpaid leave, suspended, and ultimately forced to resign.); Kofler v. Sayde Steeves Cleaning Serv. , Case No. 8:20-cv-1460-T-33AEP (M.D. Fla. Aug. 25, 2020) (Deborah Kofler was fired after requesting caregiving leave under the FFCRA and told she would “be eligible for rehire in six months.” Her employer later attempted to argue that the connection between her request for leave and her termination was “mere timing.”).

[86] State and Local FRD Laws Prohibiting Employment Discrimination against Parents and Other Caregivers, Ctr. for WorkLife Law (Nov. 2020), https://worklifelaw.org/wp-content/uploads/2020/11/Table-of-State-and-Local-FRD-Laws-Nov-2020.pdf.

[87] See generally Dina Bakst, Elizabeth Gedmark, & Christine Dinan, Misled & Misinformed: How Some U.S. Employers Use “No Fault” Attendance Policies to Trample on Workers’ Rights (And Get Away With It), A Better Balance (June 2020), https://www.abetterbalance.org/wp-content/uploads/2020/06/Misled_and_Misinformed_A_Better_Balance-1-1.pdf.

[88] See U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, No. 915.002 (May 23, 2007), https://www.eeoc.gov/laws/guidance/enforcement-guidance-unlawful-disparate-treatment-workers-caregiving-responsibilities; U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.

[89] See generally Julie Vogtman & Karen Schulman, Set Up to Fail: When Low-Wage Work Jeopardizes Parents’ and Children’s Success, Nat’l Women’s Law Ctr. (Jan. 2016), https://nwlc.org/wp-content/uploads/2016/01/FINAL-Executive-Summary-Set-Up-to-Fail.pdf.

[90] Bureau of Labor Statistics, Job Flexibilities and Work Schedules Summary, U.S. Dep’t of Labor (Sept. 2019), https://www.bls.gov/news.release/pdf/flex2.pdf (Table 6).

[91] See Daniel Schneider & Kristen Harknett, It’s About Time: How Work Schedule Instability Matters for Workers, Families, and Racial Inequality, Shift Project 1 (Oct. 2019), https://shift.hks.harvard.edu/its-about-time-how-work-schedule-instability-matters-for-workers-families-and-racial-inequality/

[92] See generally Daniel Schneider & Kristen Harknett, Consequences of Routine Work-Schedule Instability for Worker Health and Well-Being, 84 Am. Soc. Rev. 82 (2019), https://journals.sagepub.com/doi/full/10.1177/0003122418823184; Nancy C. Cauthen, Scheduling Hourly Workers: How Last Minute, Just-in-Time Scheduling Practices Are Bad for Workers, Dēmos, (Mar. 2011), http://www.demos.org/sites/default/files/publications/Scheduling_Hourly_Workers_Demos.pdf.

[93] Joan C. Williams & Heather Boushey, The Three Faces of Work-Family Conflict: The Poor, The Professionals, and the Missing Middle, Ctr. For Am. Progress 12 (2010), https://www.americanprogress.org/issues/labor/report/2010/01/25/7194/the-three-faces-of-work-family-conflict.

[94] Lisa Dodson, Stereotyping Low-Wage Mothers Who Have Work and Family Conflicts, 69 J. Of Soc. Issues 257, 259 (2013).

[95] Anna Danziger & Shelley Waters Boots, Lower-Wage Workers and Flexible Work Arrangements, Workplace Flexibility 2010 & Urban Inst. 3 (2008), https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1000&context=legal.

[96] Ellen Galinsky, James T. Bond, & Eve Tahmincioglu, What if Employers Put Women at the Center of Their Workplace Policies? When Businesses Design Workplaces that Support their Employees, Both the Businesses and the Employees Benefit, in The Shriver Report: A Woman’s Nation Pushes Back From The Brink (2014).

[97] Vogtman & Schulman, supra note 89, at 18.

[98] Id. See also Dani Carillo et al., On-call Job, On-Call Family: The Necessity of Family Support Among Retail Workers with Unstable Work Schedules (Wash. Ctr. for Equitable Growth Working Paper 110116, Nov. 2016), http://equitablegrowth.org/wp-content/uploads/2016/10/110116WP-retail-workers-with-unstable-schedules.pdf.

[99] In the majority of states, workers who leave the paid workforce to provide care to a family member are ineligible for unemployment insurance when they are able to resume searching for work. Liz Ben-Ishai, Rick McHugh, & Kathleen Ujvari, Access to Unemployment Insurance Benefits for Family Caregivers: An Analysis of State Rules and Practices, AARP Public Pol’y Inst. 10 (Apr. 2015), https://www.nelp.org/publication/access-unemployment-insurance-benefits-family-caregivers-analysis-state-rules-practices.

[100] Testimony of Bethany Santos Fauteux, The House Ways and Means Committee, Full Committee Hearing “In Their Own Words: Paid Leave, Child Care and an Economy that Failed Women” (Apr. 21, 2021), https://waysandmeans.house.gov/wp-content/uploads/2021/04/Bethany-Fauteux-Testimony.pdf.

[101] Jasmine Tucker & Jennifer Mondino, Coming Forward: Key Trends and Data from the TIME’S UP Legal Defense Fund, Time’s UP Legal Defense Fund & Nat’l Women’s Law Ctr. 4 (Oct. 2020), https://nwlc.org/wp-content/uploads/2020/10/NWLC-Intake-Report_FINAL_2020-10-13.pdf.

[102] Take Off Your Mask So I Know How Much to Tip You: Service Workers’ Experience of Health & Harassment During COVID-19, One Fair Wage, et al (Dec. 2020), https://onefairwage.site/wp-content/uploads/2020/12/OFW_COVID_WorkerExp-1.pdf.

[103] Id.

[104] Jenny R. Yang & Batia Katz, Promising Practices for Addressing Harassment in the STEM Workplace: How to Lead in Today’s Environment, The Urban Inst. (Mar. 2020), https://www.urban.org/sites/default/files/publication/102045/promising-practices-for-addressing-harassment-in-the-stem-workplace.pdf.

[105] Sarah Crawford & Sharyn Tejani, What Works At Work: Promising practices to

prevent and respond to sexual harassment in low-paid jobs, Natl’ Women’s Law Ctr. (May 2020), https://nwlc.org/wp-content/uploads/2020/05/Convening-report_English-Final.pdf.

[106] Nicole Lyn Pesce, The #MeToo movement has changed policies across industries, but there’s still work to be done, Marketwatch, Oct. 4, 2018, https://www.marketwatch.com/story/the-metoo-movement-has-changed-policies-across-industries-but-theres-still-work-to-be-done-2018-10-04.

[107] National Women’s Law Center analysis of EEOC charge data shows that this problem predated the pandemic. See Amanda Rossie, Jasmine Tucker, & Kayla Patrick, Out of the Shadows: An Analysis of Sexual Harassment Charges Filed by Working Women, Nat’l Women’s Law Ctr. (Aug. 2018), https://nwlc.org/wp-content/uploads/2018/08/SexualHarassmentReport.pdf.

[108] For additional background on EEO-1 data collection, see Resource Collection: EEO-1 Pay Data Collection, Nat’l Women’s Law Ctr. (Jan. 2020), https://nwlc.org/resources/resource-collection-eeo-1-pay-data-collection.