February 17, 2020

Bill to aid pregnant workers clears committee after debate over perceived vagueness

The Senate Judiciary Committee passed a bill to protect pregnant workers but killed a proposed amendment that some lawmakers said would have protected workers who allege a violation of the proposed law from further discrimination.

HB 25 aims to protect pregnant workers or new moms from discrimination in the workplace. Under the proposed law, New Mexico employers with four or more employees would have to provide “reasonable accommodations” to a pregnant worker or new mom. Examples of “reasonable accommodations” are defined as reprieve from heavy lifting, providing water or a stool at a workstation and extra bathroom breaks, according to backers of the bill. The bill has received wide support from industry, anti-abortion groups and abortion rights organizations. It has also gotten broad bipartisan support and passed every committee that heard the legislation and the full House unanimously. The bill passed the Senate Judiciary Committee 11-0.

But Sen. Daniel Ivey-Soto, D-Albuquerque, proposed striking the words: “and reached through good faith efforts to explore less restrictive or less expensive alternatives,” from the bill. The words “good faith” and “less expensive alternatives” were potentially too vague, he said.

Ivey-Soto said he feared that the bill sponsors are “creating a structure where the very first line of defense from every employer is to blame the victim.”

“If the purpose is to protect people then it’s something we want to actually do and not create a situation with a statutory framework where they’re blamed for requesting the accommodation if they don’t explore the less expensive alternative,” Ivey-Soto said.

Bill cosponsor Sen. Liz Stefanics, D-Cerrillos, said she considered the amendment to be “friendly” but she worried about the effect of a new amendment on the bill at this point in the session. The legislature has three days left before the end of the session.

Ivey-Soto said the words “good faith effort” put the onus of proof on the employee. Tim White, an Albuquerque lawyer who has testified on behalf of the bill, said he has spent the last six years of his career litigating on behalf of discriminated employees.

“I would be the last person to put some sort of impediment on an employee,” White said. 

But, he said there is “some responsibility” for the employee. But the employee “only has to present their need.” He did not think it was an undue burden for the employee. 

Sen. Bill O’Neill, D-Albuquerque, called the amendment a “minor tweak” and disagreed that it would “jeopardize the bill.”

The amendment failed on a 6 to 5 vote.

Committee chair Joseph Cervantes, D-Las Cruces, said he worried the bill could have the unintended consequence of causing employers to discriminate against women of reproductive age and employers may avoid hiring those women so as to avoid possible litigation due to the bill.

The bill would fall under the state’s Human Rights Act and a claim would initially go before the state’s Human Rights Commission. But, after going through that process, a complaint could then go to court.

Cervantes said an employer would not want to litigate words in the bill such as “what is an undue hardship or least expensive alternative to essential function of a job or what effect the accommodation will have on resources.”

White said the language in the bill has largely come from the U.S. Equal Employment Opportunity Commission regulations in support of the Americans for Disability Act. 

Terralene Massey, executive director of Southwest Women’s Law Center, who has provided testimony as an expert witness on the bill, said they had received some technical assistance from Better Balance, a national organization “leading the way in terms of states passing pregnant worker accommodation.”

“It’s best practice guidance in line with case law that is at hand,” Massey said.