Although the Supreme Court’s decision overturning Roe v. Wade cast a long shadow over reproductive rights, there were some victories to cheer in 2022. Among them was the culmination of a long, hard-fought campaign to sign the Pregnant Workers Fairness Act into law. A win more than a decade in the making, the PWFA mandates that employers grant pregnant workers “reasonable accommodations” — temporary job changes needed to maintain a healthy pregnancy — unless doing so would impose an “undue hardship,” a standard borrowed from the Americans with Disabilities Act. Given that the ADA has been on the books since 1990, employers have decades of experience “accommodating” workers’ medical needs.

­When I tell people about the PWFA’s enactment, most are surprised: Didn’t the law already require employers to assure pregnant workers could keep working safely, they ask? The answer — well, yes and no — reflects decades of disagreement among judges, legislators, and advocates about how to define “equality” when it comes to the distinct medical reality of pregnancy.

From the earliest jurisprudence concerning women and work, capacity for pregnancy has been a basis for disparate treatment. In 1908, the Supreme Court approved an Oregon law capping women’s shifts in certain physically demanding jobs at 10 hours, because “healthy mothers are essential to vigorous offspring,” and thus, “the physical wellbeing of woman becomes an object of public interest and care.” By the time Congress enacted Title VII of the 1964 Civil Rights Act, outlawing discrimination “because of” sex, virtually every state had enacted myriad “protective” laws restricting women’s ability to work on the same terms as men — such as working overtime and holding hazardous jobs.

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Although Title VII nullified such laws, employers continued to single out pregnant workers. Especially common were policies excluding them from fringe benefits like health insurance and accrual of seniority during leave. In 1976, the Supreme Court considered such a policy maintained by General Electric, which paid disability benefits to workers absent for medical reasons but paid nothing to people unable to work due to pregnancy. In a challenge brought by workers at a Virginia GE power plant, the justices approved the exclusion. They reasoned that because not all women become pregnant, GE’s decision to disadvantage pregnant workers was not “because of” sex — it was merely “because of” a particular medical condition — and therefore permissible.

Congress swiftly responded by passing the Pregnancy Discrimination Act (PDA) in 1978. In addition to making it explicit that under Title VII, “sex” includes “pregnancy, childbirth, and related medical conditions,” Congress also — in a specific retort to the GE lawsuit — directs that, for “all employment-related purposes” including receipt of fringe benefits, workers affected by pregnancy are to be treated the same as others “similar in their ability or inability to work.” So while the PDA did not mandate that employers must grant any particular benefit to pregnant workers — like paid maternity leave — it says that if an employer does grant such a benefit to others, it must extend the benefit to pregnant workers, too.

The PDA’s effects were seismic. No longer could an employer use pregnancy as a basis for denying an applicant a job, or paying workers less, or firing them. Nor could an employer cite its supposed concern for women’s reproductive health in deciding which jobs they could hold. In 1991, the Supreme Court finally renounced the paternalism of the 1908 decision limiting women’s shifts in certain physically demanding jobs. It did so in a case concerning the so-called “fetal protection” policy adopted by car battery manufacturer Johnson Controls, barring women from holding positions involving contact with lead, known to cause birth defects, unless they could prove sterility. Even though lead also posed danger to men’s reproductive capacity, no such ban was imposed on them.

Women pushed out of the lead-contact jobs — the best-paying in the company — filed suit. The Supreme Court ruled that under the PDA, the company was not entitled to substitute its own judgment for the women workers’: “It is no more appropriate for the courts than it is for the individual employers to decide whether a woman’s reproductive role is more important to herself and her family than her economic role.”

The Johnson Controls ruling may have rejected employers’ efforts to use the potential for pregnancy as a rationale for keeping women out of hazardous or strenuous jobs, but soon, a new conflict arose: Workers whose exceptionally strenuous or dangerous job duties were incompatible with pregnancy itself, and who sought to temporarily avoid those hazards, faced pushback. While employers routinely offered “light duty” to workers recovering from on-the-job injuries, and — as of 1990, when the ADA became law — altered job duties to meet the needs of workers with disabilities, they routinely denied such accommodations to pregnant people. And courts routinely approved such actions under the PDA, concluding that pregnant employees were not “similar” to those favored groups in their “ability or inability to work,” and therefore, not entitled to the same accommodations. Once again, the law treated pregnant workers as the exception, unsuited to the demands of the workplace.

Advocates cheered the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc., which clarified that employers could only deny pregnant workers needed accommodations if they had a “sufficiently strong” reason for doing so. But in the years after Young, pregnant workers continued to have their job modification requests rejected, and they continued to lose their PDA cases. Indeed, one study found that courts sided with the employer in two-thirds of lawsuits brought by pregnant workers post-Young. The main culprit? Confusion about which workers are sufficiently “similar” to trigger the PDA’s protections.

The PWFA eliminates this comparative hurdle. Employers now must grant reasonable accommodations to pregnant people no matter how they treat “similar” workers, so long as doing so would not impose an “undue hardship.” Nearly 45 years after enacting the PDA, Congress has reaffirmed that the temporary condition of pregnancy is not incompatible with work; it is a normal condition of the modern workplace.

One of the most sweeping surveillance statutes ever enacted by Congress is set to expire at the end of this year — creating an important opportunity to rein in America’s sprawling surveillance state.

Section 702 of the Foreign Intelligence Surveillance Act permits the U.S. government to engage in mass, warrantless surveillance of Americans’ international communications, including phone calls, texts, emails, social media messages, and web browsing. The government claims to be pursuing vaguely defined foreign intelligence “targets,” but its targets need not be spies, terrorists, or criminals. They can be virtually any foreigner abroad: journalists, academic researchers, scientists, or businesspeople. And in the course of this surveillance, the government casts a wide net that ensnares the communications of ordinary Americans on a massive scale — in violation of our constitutional rights.

American Civil Liberties Union

Stop Mass Warrantless Surveillance: End Section 702

Section 702 of the Foreign Intelligence Surveillance Act allows for blatant abuses of privacy. Tell your representative it must expire.

As Congress debates the reauthorization of Section 702, it’s vital that we tell our representatives in Congress that we want an end to warrantless mass surveillance. Here’s what you need to know to follow the debate and speak up for your right to privacy.

The government conducts at least two kinds of surveillance under Section 702:

PRISM: The NSA obtains communications — such as international messages, emails, and internet calls — directly from U.S. tech and social media companies like Facebook, Google, Apple, and Microsoft. The government identifies non-U.S. person accounts it wishes to monitor, and then orders the company to disclose all communications and data to and from those accounts, including communications with U.S. persons.

Upstream: Working with companies like AT&T and Verizon, the NSA intercepts and copies Americans’ international internet communications in bulk as they flow into and out of the United States. The NSA then searches for key terms, such as email addresses or phone numbers, that are associated with its hundreds of thousands of foreign targets. Communications determined to be to and from those targets — as well as those that happen to be bundled with them in transit — are retained in NSA databases for further use and analysis.

Critically, while Section 702 does not allow the NSA to target Americans at the outset, vast quantities of our communications are still searched and amassed in government databases simply because we are in touch with people abroad. And this is the bait-and-switch: Although the law allows surveillance of foreigners abroad for “foreign intelligence” purposes, the FBI routinely exploit this rich source of our information by searching those databases to find and examine the communications of individual Americans for use in domestic investigations.

The scale of Section 702 has been growing significantly over time, meaning more and more Americans are caught in this net.

When the government first began releasing statistics, after the Snowden revelations in 2013, it reported having 89,138 targets. By 2021, the government was targeting the communications of a staggering 232,432 individuals, groups, and organizations. Although the government often seeks to portray the surveillance as “targeted” and narrow, the reality is that it takes place on a massive scale.

Indeed, the government reported that in 2011, Section 702 surveillance resulted in the retention of more than 250 million internet communications (a number that does not reflect the far larger quantity of communications whose contents the NSA searched before discarding them). Given the rate at which the number of Section 702 targets is growing, it’s likely that the government today collects over a billion communications under Section 702 each year. But these statistics tell only part of the story. The government has never provided data on the number of Americans who are surveilled under PRISM and Upstream, a number that is surely also increasing. That is a glaring gap in its transparency reports.

Although Congress intended Section 702 to be used for counterterrorism purposes, it’s frequently used today to pursue domestic investigations of all kinds. Both the FBI and CIA have access to some of the raw data produced by this surveillance, and they increasingly use that access to examine the private communications of Americans they are investigating — all without a warrant.

FBI agents routinely run searches looking for information about Americans as part of criminal investigations, including those that have nothing to do with national security. Based on transparency reporting, agents have conducted millions of these U.S. person queries — also known as “backdoor searches” — in recent years. The only limitation on backdoor searches is that they must be “reasonably likely” to retrieve foreign intelligence or evidence of a crime.

The standard for conducting backdoor searches is so low that, without any showing of suspicion, an FBI agent can type in an American’s name, email address, or phone number, and pull up whatever communications the FBI’s Section 702 collection has vacuumed into its databases over the past five years. These searches are a free pass for accessing constitutionally protected communications that would otherwise be off-limits to the FBI, unless it got a warrant.

Evidence that agents have refused to comply with this low bar for conducting searches has piled up. Agents have violated the FBI’s own rules over and over, accessing Americans’ private communications without any legitimate purpose. They have dipped into Section 702 data for information about relatives, potential witnesses and informants, journalists, political commentators, and government officials, including a member of Congress.

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. Government agents are required to obtain a warrant to access our emails, online messages, and chats. Large-scale, warrantless surveillance of Americans’ private communications is at odds with this basic constitutional principle.

Section 702 also violates the Constitution by inhibiting freedom of speech and association. The reasonable fear that the U.S. government is spying on communications may deter journalists, lawyers, activists, and others from communicating freely on the Internet. We all have a right to exchange messages with our friends, family, colleagues, and clients abroad without worrying that the government is reading over our shoulder.

Because Section 702 is unconstitutional, the ACLU and others have attempted to challenge it in court. But the courts have failed to protect our constitutional rights. Instead, courts have repeatedly dismissed civil cases challenging Section 702 — citing government claims of secrecy — and have declined to rule on claims in criminal cases that the government’s backdoor searches violate the Fourth Amendment. This year, we brought one of these cases to the Supreme Court, but it refused to consider it.

American Civil Liberties Union

U.S. Supreme Court Declines to Hear Wikimedia Foundation’s Challenge to NSA Mass Surveillance | American Civil Liberties Union

Wikimedia Foundation, ACLU, and Knight Institute Call on Congress to Limit the NSA’s Surveillance of Internet Communications

Given the courts’ inaction, it is up to Congress to stand up for our rights. Fifteen years ago, Congress enacted Section 702. Members of Congress should not vote to renew this law without fundamental reforms to protect Americans’ privacy.

These reforms should include:

1. Putting an end to rampant backdoor searches of Americans by requiring agents to obtain a warrant before searching Section 702 databases for an American’s private information.
2. Narrowing the scope of Section 702 surveillance by imposing stricter rules on who the government can “target,” thereby limiting the number of Americans whose communications are swept up in the course of this spying.
3. Limiting how long the government can retain information collected under Section 702 and how the NSA shares that information with other agencies.
4. Ensuring that the government notifies individuals when Section 702 information is used against them in court and provides those individuals with sufficient information to obtain full and fair court review.
5. Increasing transparency about the number of Americans’ communications searched and collected through Section 702 surveillance.

Beyond reforming Section 702 itself, Congress should also adopt broader safeguards that protect Americans in the face of bulk surveillance and strengthen court oversight when the government engages in spying for intelligence purposes.

Over the next year, the ACLU will be seizing on this moment to press Congress to reclaim our privacy rights. We invite you to join us by sending a message to your representatives now.