Recent EEOC Lawsuits Warn Employers: Compliance with the Pregnant Workers Fairness Act Is Not Optional
The Equal Employment Opportunity Commission (EEOC) is not playing. The agency that enforces the federal anti-discrimination laws, including the Pregnant Workers Fairness Act (PWFA) sent a clear message to U.S. employers last week:
Learn your legal obligations toward pregnant workers under the PWFA and comply with the law’s requirements.
New Cases Include:
The EEOC claims that one Alabama employer refused to accommodate a pregnant employee's medical restrictions, such as limiting her work hours and excusing her absences in violation of the PWFA and the Americans with Disabilities Act (ADA). When the company threatened to terminate her due to absences, the employee resigned.
In another case filed against an Oklahoma-based employer, the EEOC alleged that the company forced a pregnant employee to take unpaid leave instead of allowing her requested accommodations, such as sitting and taking breaks during her high-risk pregnancy. The company also failed to provide her with breastfeeding breaks and ultimately terminated her.
What Is the PWFA?
It’s new! No, not really.
Generally, and as of June 2023, the PWFA requires employers to engage in the interactive process to accommodate workers who are pregnant or have recently given birth.
Specifically, the PWFA prohibits forcing a pregnant employee to take unpaid leave (like in case #2) or penalizing a pregnant worker for using leave as an accommodation.
Rather, an employer must allow a pregnant worker to choose whether to use paid leave (accrued or as part of a short-term disability program or other paid benefit) or unpaid leave in the same way an employer allows an employee to choose between these types of leave when they are using leave for other reasons - like a bad back or jury duty leave or leave under USERRA.
The PWFA also requires employers to ensure that their ordinary workplace policies or practices—including, but not limited to, attendance policies (like case #1), productivity quotas, and requirements for mandatory overtime—do not operate to penalize pregnant employees for accepting and using accommodations.
Can you provide more detail please?
Sure! The PWFA provides a framework that enables (friendlier than “requires”) employers with at least 15 employees to provide a reasonable accommodation for an employee’s known limitations relating to (or arising out of or affected by) pregnancy, childbirth or “related medical conditions,” unless doing so causes an employer undue hardship or burden.
If “reasonable accommodation” or “undue hardship” language sounds familiar to you — it is!
The ADA, which requires employers to make reasonable accommodations for disabled workers, models the process required for the PWFA.
And, the language “pregnancy, childbirth, or related medical conditions,” is the same as the language in the definition of “sex” in Title VII of the Civil Rights Act of 1964 (Title VII).
Here Are Some More Fun Facts About the PWFA—
Here they are:
As we see with the first-filed EEOC case, PWFA limitations also may be ADA disabilities;
An employee need not have an impairment that substantially limits a major life activity to be entitled to a reasonable accommodation under the PWFA;
A worker need not use any specific or magic to request accommodations under the PWFA;
In fact, informing an employer of a limitation and the need for accommodations should not be complicated; employees should be able to just communicate with the manager or supervisor with whom they would normally consult if they had questions or concerns about work matters;
Employers may request documentation when an employee requests an accommodation (just keep it minimal);
The EEOC provides detailed examples of reasonable accommodations for various medical conditions arising out of pregnancy, including sitting and additional breaks. These are free and should be easy to provide; and
Employers may have to temporarily suspend an employee’s essential functions.
Consult counsel to understand the scope of your obligations under PWFA, update workplace policies, and train your managers to understand the organization’s obligations toward its pregnant employees.
As one EEOC Regional Attorney stated in a press release, “The EEOC will continue to vigorously protect expectant and new mothers in the workplace.”
Employers, forewarned is forearmed.