WASHINGTON, D.C. | September 17, 2020
Today, the House is considering H.R. 2694, the Pregnant Workers Fairness Act. While well-intentioned, this legislation unfortunately does not include a long-standing provision from the Civil Rights Act which protects religious organizations from being forced to make employment decisions that conflict with their faith.
On the House floor today, Rep. Virginia Foxx (R-NC), Republican Leader of the Education and Labor Committee, delivered the following remarks:
“House Republicans have long supported protections in federal law for all workers, especially pregnant workers, and we believe employers should provide reasonable accommodations for pregnant workers—empowering them to achieve their highest potential. I speak not only as a concerned Congresswoman on this issue, but also as a mother and grandmother. Discrimination of any type should not be tolerated, and no one should ever be denied an opportunity because of unlawful discrimination.
“However, there are already important protections under federal law to prevent workplace discrimination, including federal laws that rightfully protect pregnant workers.
“Take the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) for example. These federal laws ensure workers are not being unlawfully discriminated against and receive reasonable accommodations related to pregnancy, childbirth, or related medical conditions.
“My Republican colleagues and I agree with the underlying goal of H.R. 2694. That’s why Republican Members of the Education and Labor Committee negotiated in good faith with Chairman Scott to make important and necessary improvements to the bill, and I thank Chairman Scott for his willingness to do so.
“H.R. 2694, as introduced, did not require a pregnant worker—in order to be eligible for an accommodation—to be able to perform the essential functions of the job with a reasonable accommodation. This is a sensible provision now included in the bill, with additional language that a temporary limitation which prevents performance of an essential function may qualify for a reasonable accommodation.
“Further, a definition of ‘known limitations’ related to pregnancy, childbirth, or related medical conditions was also initially excluded, but the bill now includes such a definition and a requirement that employees communicate the known limitation to the employer. This provision will help workers and their employers understand their rights and responsibilities more clearly.
“Additionally, the original version of H.R. 2694 appeared to allow employees a unilateral veto over offered accommodations, but the bill now clarifies that reasonable accommodations will typically be determined through a balanced and interactive dialogue between workers and employers, similar to the process implemented under the ADA.
“The bill also now includes a provision ensuring that if an employer makes a good faith effort to determine a reasonable accommodation through the interactive process with the employee, the employer is not liable for damages.
“Finally, H.R. 2694 as introduced did not limit its application to employers with 15 or more employees as do Title VII of the Civil Rights Act and the ADA. The bill now includes a 15-employee threshold.
“These bipartisan changes were considered and incorporated in the bill passed out of the Committee in January.
“Unfortunately, despite the necessary improvements made to the original bill, an important issue remains unresolved. Namely, the legislation before us today does not currently include a long-standing provision from the Civil Rights Act which protects religious organizations from being forced to make employment decisions that conflict with their faith.
“To address this omission, Republicans offered an amendment to include this narrow but long-standing provision when the bill was considered by the Committee.
“The Civil Rights Act protection, which already exists under current law, ensures religious organizations are not forced to make employment decisions that conflict with their faith. Unfortunately, Committee Democrats defeated this amendment on a party-line vote.
“The purpose of America’s nondiscrimination laws, and the agencies enforcing them, is to give all Americans equal opportunities to succeed. That being said, overzealous government intervention often causes more harm than good. In the case of H.R. 2694, by failing to include a long-standing Civil Rights Act provision, we are doing just that. As it is currently written, H.R. 2694 will create legal risk for religious organizations in their religiously based employment decisions.
“Last year, a Democrat-invited witness at the Committee hearing on H.R. 2694 highlighted Kentucky’s recently enacted pregnancy-accommodation law as a template for Congress to follow. Kentucky’s law includes a religious-organization protection very similar to the one found in the Civil Rights Act and incorporated in the Republican-sponsored amendment.
“At least 16 states and the District of Columbia in their pregnancy-discrimination or pregnancy-accommodation laws also include a provision similar to the Civil Rights Act religious-organization protection. Even if certain Members believe including such a provision in H.R. 2694 is somehow unnecessary, it would do no harm to include the protection and in doing so address the concerns I have raised. I remain perplexed why Chairman Nadler and Chairman Scott continue to oppose the current-law protection.
“The First Amendment guarantees all Americans the freedom of religion, and for over 240 years, Supreme Court decisions and laws written by Congress have maintained strong protections for religious liberty. H.R. 2694 should do so as well.”
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