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 โ€œreasonable accommodationsโ€ to a pregnant worker or new mom. Examples of โ€œreasonable accommodationsโ€ 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: โ€œand reached through good faith efforts to explore less restrictive or less expensive alternatives,โ€ from the bill. The words โ€œgood faithโ€ and โ€œless expensive alternativesโ€ were potentially too vague, he said.

Ivey-Soto said he feared that the bill sponsors are โ€œcreating a structure where the very first line of defense from every employer is to blame the victim.โ€

โ€œIf the purpose is to protect people then itโ€™s something we want to actually do and not create a situation with a statutory framework where theyโ€™re blamed for requesting the accommodation if they donโ€™t explore the less expensive alternative,โ€ Ivey-Soto said.

Bill cosponsor Sen. Liz Stefanics, D-Cerrillos, said she considered the amendment to be โ€œfriendlyโ€ 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 โ€œgood faith effortโ€ 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.

โ€œI would be the last person to put some sort of impediment on an employee,โ€ White said. 

But, he said there is โ€œsome responsibilityโ€ for the employee. But the employee โ€œonly has to present their need.โ€ He did not think it was an undue burden for the employee. 

Sen. Bill Oโ€™Neill, D-Albuquerque, called the amendment a โ€œminor tweakโ€ and disagreed that it would โ€œjeopardize the bill.โ€

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 stateโ€™s Human Rights Act and a claim would initially go before the stateโ€™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 โ€œwhat is an undue hardship or least expensive alternative to essential function of a job or what effect the accommodation will have on resources.โ€

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 Womenโ€™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 โ€œleading the way in terms of states passing pregnant worker accommodation.โ€

โ€œItโ€™s best practice guidance in line with case law that is at hand,โ€ Massey said. 

Author