GOP congressman wants to let religious groups discriminate against pregnant workers

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'We should be mindful to protect religious liberty,' Idaho Rep. Russ Fulcher said.

In a House Committee on Education and Labor hearing Wednesday, Idaho Republican Rep. Russ Fulcher expressed concern that a bill aimed at protecting pregnant workers might not sufficiently shield religious employers from charges of discrimination over actions they might take against their employees.

The Pregnant Workers Fairness Act was first introduced in 2019 and reintroduced in the 117th Congress on Feb. 15, 2021, by Democratic Rep. Jerry Nadler of New York.

The act would require employers to provide reasonable pregnancy- and childbirth-related accommodations to pregnant employees and prohibit employers from denying "employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee."

The bill would also protect pregnant workers from retaliation for requesting reasonable accommodations and prohibit employers from demanding pregnant workers take paid or unpaid leave for pregnancy-related conditions if an alternative can be found.

During Wednesday's hearing, Fulcher took issue with one omission in what he called an "otherwise commendable" bill: There's no exemption for religious employers that would protect their right to discriminate against pregnant workers.

"The legislation we will consider could result in religious organizations being denied protections they would receive under the law," Fulcher said, noting that Title VII of the Civil Rights Act of 1964 provides certain exemptions for religious organizations, including a "ministerial exception" according to which members of the clergy are generally disallowed from bringing claims of discrimination if fired for faith-based reasons.

The July 2020 Supreme Court decision in Our Lady of Guadalupe School v. Morrissey-Berru expanded the ministerial exception to give extreme latitude to employers to hire and fire for religious reasons any employee who performs any religious instruction as part of their job description, without risk of litigation.

"The bill should include a narrow but long-standing provision from the Civil Rights Act protecting religious organizations from being forced to make employment decisions that conflict with their faith," Fulcher said, noting that the omission of such a provision could "create legal risk for religious organizations."

Fulcher said the First Amendment guarantees freedom of religion for all Americans, and excluding an exemption for religious employers "would lead to confusion and potentially a constitutional challenge. ... We should be mindful to protect religious liberty and to maintain this kind of protection like those found in other, similar legislation."

Fulcher's remarks echoed objections to the version of the bill introduced in the last Congress made in September by North Carolina Republican Rep. Virginia Foxx.

"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," Foxx wrote in a statement. "The purpose of America’s nondiscrimination laws, and the agencies enforcing them, is to give all Americans equal opportunities to succeed," she added, saying that failure to include a religious exemption in the bill would amount to "overzealous government intervention" and would create legal risks for religious employers.

According to a report by the College and University Professional Association for Human Resources, the exclusion of a religious exemption from the Pregnant Workers Fairness Act has been Republicans' primary objection to the legislation since it was introduced.

Democrats on the Education and Labor Committee on Wednesday were quick to answer Fulcher.

Rep. Kathy Manning of North Carolina said denying pregnant workers reasonable accommodations was "offensive and contrary to all the religions of which I am aware."

Manning said allowing a religious exemption from a bill to protect pregnant workers would enable religious employers to "impose their personal opinions about whether a particular woman's pregnancy is desired or appropriate, and discriminate against those women whose pregnancies they may not find desirable. ... This is exactly the type of discrimination we should be prohibiting."

Rep. Suzanne Bonamici of Oregon said, "A religious exemption in the Pregnant Workers Fairness Act would harm the very people we're trying to protect: pregnant workers who need modest accommodations."

She said that the bill enjoys broad bipartisan support and that protecting pregnant workers "is not and should not be a partisan issue."

More than 30,000 cases of pregnancy discrimination were reported to the Equal Employment Opportunity Commission between 2010 and 2015. The pandemic has only made things more difficult the crisis, with many pregnant essential workers unable to receive health accommodations.

Studies have also shown that religious employers frequently claim that their decisions to terminate or discriminate against pregnant workers, particularly unmarried pregnant workers, are not pregnancy-based discrimination, but rather decisions made for protected religion-based reasons. Such claims often succeed in court.

The fight to let employers discriminate against pregnant people has been carried out on several fronts: In addition to the Supreme Court's ruling in Our Lady of Guadalupe School v. Morrissey-Berru that expanded the right of religious employers to discriminate against workers for religious reasons, the Department of Labor under Donald Trump implemented a rule making it easy for government contractors to terminate unmarried pregnant workers or LGBTQ workers for religious reasons.

Published with permission of The American Independent Foundation.