The U.S. Equal Employment Opportunity Commission (EEOC) has recently taken several employers to task for alleged pregnancy discrimination in violation of the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 18, 2024. In mid-September 2024, the EEOC announced the first lawsuits alleging a violation of the PWFA and first public conciliation of a PWFA charge. The EEOC prevents and remedies unlawful employment discrimination and advances equal opportunity for all. PWFA provides critical protections for employees because of pregnancy, childbirth, or related needs. The PWFA applies to private employers that have 15 or more employees. The PWFA does not replace federal, state, or local laws that are more protective of workers, job applicants and employees affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that require employers to provide accommodations for pregnant workers and several states have paid maternity leave.
Pregnancy Discrimination Protections in the Workplace
Pregnancy discrimination is the unfair treatment of a person in the workplace due to their pregnancy, childbirth, or related medical conditions. It can include:
- Unfavorable treatment during hiring, firing, pay, job assignments, promotions, layoffs, training, or benefits.
- Harassment by managers, co-workers, or others in the workplace.
- Denial of a reasonable accommodation, such as a workplace change to allow the employee to perform their job.
First PWFA Settlements
In September 2024, a pest control services provider in Florida, agreed to pay $47,480 in damages to resolve a pregnancy accommodation charge, the EEOC announced. The charge claimed the company fired a pregnant employee after she requested a reasonable accommodation to attend monthly medical appointments for her pregnancy which violated the PWFA. The company entered into a conciliation agreement and will pay $47,480 in damages to the former employee, appoint an EEO coordinator, revise employment policies to include making reasonable accommodations under the PWFA, and provide training to both management and non-management employees on pregnancy discrimination
In October 2024, a Florida federal court approved a consent decree between the EEOC and a Lago Mar Properties Inc. in Florida under PWFA. A line cook who was five months pregnant was admitted to the hospital due to complications that ultimately resulted in a stillbirth. She requested six weeks of leave to recover from the physical and emotional toll supported by a doctor’s note. The company failed to provide reasonable accommodations, which is required under both the PWFA and the ADA, and instead terminated her employment. The company will pay $100,000 in damages to the employee and revise company policies to ensure that employees receive reasonable accommodations for pregnancy or disability-related conditions.
First PWFA Lawsuits
The EEOC asserted Polaris Industries, a manufacturing company in Alabama, “refused to excuse an employee’s absences for pregnancy-related conditions and medical appointments and required the employee to work mandatory overtime against doctor’s orders.” The company assessed attendance points against the employee for pregnancy-related absences. The employee resigned to protect her pregnancy and filed a complaint with the EEOC. The case is pending in the U.S. District Court for the Northern District of Alabama.
The EEOC filed suit against Wabash National Corporation, a national producer of semi-trailers, alleging the company violated the PWFA by “failing to provide pregnancy-related accommodation to an employee who worked as an assembler, subjected her to an unlawful medical inquiry unlawfully requiring medical documentation, denied the employee’s request to transfer to a role that did not require lying on her stomach, refused to engage in the interactive process to explore other possible accommodations and then forced the employee to take unpaid leave.” The employee eventually resigned for fear for the health of her pregnancy. The case is pending in the U.S. District Court for the Western District of Kentucky.
Another defendant, Urologic Specialists of Oklahoma, allegedly violated the Americans with Disabilities Act (ADA) by not providing reasonable accommodation to an employee with a disability, and violated Title VII of the Civil Rights Act. The company did not “allow a medical assistant at its Tulsa facility to sit, take breaks, or work part-time as her physician said was needed to protect her health and safety during the final trimester of her high-risk pregnancy. The company forced her to take unpaid leave and refused to guarantee she would have breaks to express breastmilk.” The case is pending in the U.S. District Court for the Northern District of Oklahoma
In each case, the EEOC filed suit after first attempting to reach a pre-litigation settlement through its administrative conciliation process. Administrative conciliation process is a voluntary negotiation process that helps resolve disputes between parties.
Federal Laws Prohibiting Pregnancy Discrimination
The Pregnant Workers Fairness Act (PWFA) requires a covered employer to provide a “reasonable accommodation” arrived at through the interactive process to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.”
- The PWFA does not specify length of coverage or an entitlement amount.
- The PWFA covers employees with known limitations related to pregnancy, childbirth, or related medical conditions with no specified end-date as this will differ per employee.
- Employees are not required to establish the existence of a disability when requesting an accommodation under the PWFA.
- In circumstances where the need for a pregnancy-related accommodation is obvious, employees are generally not required to provide medical documentation to establish a need for a pregnancy-related accommodation and, in such cases, an employer’s request for medical documentation may be deemed unreasonable.
- The EEOC considers a stillbirth to be a “related medical condition.” Other related conditions listed in the EEOC guidance include cesarian sections, a miscarriage, postpartum depression, edema, placenta previa and lactation.
- Under the PWFA, an employer must accommodate a worker’s known limitation absent undue hardship. “Undue hardship” means significant difficulty or expense.
- The PWFA prohibits an employer from denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation, forcing a worker to take an accommodation, or retaliate against an employee or applicant for requesting or using a reasonable accommodation
- An employee or applicant can be “qualified” under the PWFA if they can perform the “essential functions” of the job with or without a reasonable accommodation. If they cannot perform the essential functions of the job with or without a reasonable accommodation, they can be qualified if the inability is “temporary;” the employee could perform the functions “soon, and the inability to perform the essential functions can be reasonably accommodated.
Workers may also be entitled to accommodations under Title VII or the ADA which can work together and be used in tandem with the PWFA
- Title VII of the Civil Rights Act of 1964 which prohibits sex discrimination, including pregnancy discrimination based on Current pregnancy, Past pregnancy, Potential pregnancy, Medical condition related to pregnancy or childbirth including breastfeeding/lactation, Having or choosing not to have an abortion, and Birth control (Contraception). Title VII also prohibits discrimination against working parents and others with caregiving responsibilities outside of work.
- Family and Medical Leave Act (FMLA) which allows eligible employees to take up to 12 weeks of unpaid leave per year for medical reasons, including pregnancy and childbirth.
- The Americans with Disabilities Act (ADA) which prohibits discrimination against people with disabilities in employment. The ADA prohibits discrimination against an applicant or employee based on a disability, including a disability related to a pregnancy such as diabetes that develops during pregnancy. While pregnancy itself is not a disability under the ADA, some pregnant workers may have one or more impairments related to their pregnancy that qualify as a “disability” under the ADA. An employer may have to provide that worker with a reasonable accommodation for the pregnancy-related disability.
PWFA and the Interaction with the ADA
The PWFA is different than the ADA in that PWFA covers temporary, minor, and episodic physical and mental conditions and there is no requirement that conditions rise to a specific severity threshold.
The PWFA “deems an individual impaired by pregnancy, childbirth, or related medical conditions qualified and entitled to reasonable accommodation without the scrutiny the ADA typically places on an employee’s ability to perform job functions.”
Pregnancy itself does not meet the definition of a “disability” under the ADA, because it usually is a short-term condition and only some pregnancy-related conditions will meet the definition of a disability. Under the PWFA, pregnant and postpartum employees who were not covered under the ADA or Title VII can now ask their employers to provide them with workplace accommodations under the PWFA.
Under both laws, conditions requiring an accommodation may begin prior to conception (including preparation for pregnancy and childbirth) and could continue into postpartum recovery (such as postpartum depression or anxiety). The employer must engage in the interactive process and covered employers must provide reasonable accommodations.
EEOC Investigation and Conciliation Steps
As outlined by the EEOC, Upon receipt of a charge or claim, the EEOC will conduct an investigation. At the end of an investigation, the EEOC decides on the merits of the charge. If the EEOC concludes that the information obtained in the investigation does not establish a violation of the law, the person who filed the charge of discrimination will be issued a letter called a “Dismissal and Notice of Rights.” This informs the person that he or she has the right to file a lawsuit in federal or state court within 90 days from the date of receipt of the letter. The employer also receives a copy of this document.
If the EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a “Letter of Determination.” The Letter of Determination invites the parties to join the agency in seeking to settle the charge through an informal and confidential process known as conciliation.
Conciliation is a voluntary process, and the parties must agree to the resolution. If conciliation fails, the EEOC must decide whether to sue the employer in court. Filing lawsuits is a last resort – the EEOC files suit in less than 8 percent of the cases where it believes discrimination occurred and conciliation was unsuccessful.
Key Takeaways for Employers
The PWFA requires employers to provide reasonable accommodations to workers affected by pregnancy, childbirth, or related medical conditions. Employers must engage in an interactive process to determine reasonable accommodations and cannot terminate or retaliate against workers for making such requests.
The EEOC recommends that once the employee or applicant tells the employer that they have a limitation—a physical or mental condition related to, arising out of, or affected by pregnancy, childbirth, or a related medical condition—and that they need an adjustment or change in their working conditions due to the limitation the employer should engage in the “interactive process” with the employee or applicant.
The “interactive process” means simply that the employer and employee communicate, whether by talking or some other way, about the known limitation and the adjustment or change needed at work. The employer should respond promptly to accommodation requests. If it does not cause an undue hardship to the employer’s business, the employer generally must provide a reasonable accommodation—either what the employee or applicant requests or another effective accommodation.
Though due to the nature of pregnancy the employee’s condition will eventually become obvious, managers should keep the employee’s medical condition or accommodation confidential.
The EEOC outlined four accommodations that are almost always reasonable under the PWFA. They are:
- Allowing an employee to carry water and drink, as needed, in the employee’s work area.
- Allowing an employee additional restroom breaks.
- Allowing an employee whose work requires standing to sit and whose work requires sitting to stand.
- Allowing an employee breaks to eat and drink, as needed.
The EEOC also listed several other accommodations that may be reasonable, such as:
- A stool to sit on while working.
- Time off for health care appointments.
- Temporary reassignment.
- Temporary suspension of certain job duties.
- Remote work.
- Time off to recover from childbirth or a miscarriage.