Pregnant workers often experience extra hardships in the workplace. It is very common for pregnant workers to require more frequent rest breaks and bathroom breaks, to need to sit, and to avoid heavy lifting. Such assistance is usually referred to as “accommodation.”
Until now, however, no law required such accommodations. The original Civil Rights Act of 1964 (CRA) prohibited discrimination based on sex, but pregnancy was not addressed. Indeed, in 1976 the Supreme Court held that discrimination against pregnant people was not a form of sex discrimination—see General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).
Prior Litigation
Congress was incensed by this decision, so in 1978 they passed an amendment to the CRA called the Pregnancy Discrimination Act (PDA), explicitly to overrule General Elec. Co. The PDA required that women affected by pregnancy and related conditions had to be treated the same as other employees based on their ability or inability to work. The PDA did not, however, call for accommodations for pregnancy.
The Americans With Disabilities Act (ADA) of 1991 has an elaborate scheme of accommodation for disabilities, but explicitly asserted that pregnancy was not a disability, and its accommodation requirements don’t apply to pregnant workers.
In 2015, however, in a case called Young v. United Parcel Service, 575 U.S. 206 (2015), the Supreme Court moved in the direction of actually requiring accommodation for pregnancy. Even in this case, the Court did not come out and say accommodation was required. Rather, it permitted a disparate treatment claim under the PDA if a pregnant employee could show that their employer refused to provide accommodations AND that the employer later provided accommodations to other employees with similar restrictions. In this case the plaintiff, Ms. Young, was a delivery driver. UPS had a requirement that drivers be able to lift up to 70 pounds, which Ms. Young’s doctor would not allow. She was able to show that other drivers who had lifting restrictions for reasons like workers’ comp injuries were allowed to continue to work.
The Pregnant Workers Fairness Act
Finally, the Pregnant Workers Fairness Act (PWFA) was included as Division II of the Consolidated Appropriations Act, 2023, which was passed by Congress on December 27, 2022, and signed by President Joe Biden on December 29, 2022. The bill went into force on June 27, 2023. According to the Equal Employment Opportunity Commission (EEOC), it requires:
- “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” This basically mirrors the current ADA accommodation scheme.
- The PWFA applies only to accommodations. Existing laws that the EEOC enforces make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions.
- The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers.
Covered employers (i.e., employers with 15 or more employees, full or part time, on the payroll in any 20 weeks of the current or preceding calendar year) cannot:
- Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfere with any individual’s rights under the PWFA.
Under the PWFA, the EEOC has one year from the date of the bill’s enactment to promulgate regulations more fully explaining the law and providing guidance to employers. However, the EEOC is now accepting charges of discrimination based on events occurring on or after June 27, 2023.
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