Novelist Barbara Kingsolver wrote in Homeland and Other Stories, "Sometimes the strength of motherhood is greater than natural laws." While this is correct, the path to motherhood is fraught with peril. Morning sickness. Preeclampsia. Lifting restrictions. Pain. Discomfort. The list can go on. How do we address the reality that pregnant employees often need help to make it to the promised land of motherhood while continuing gainful employment? Congress enacted the Pregnant Workers Fairness Act (PWFA) for that reason. The PWFA, a significant step in empowering pregnant employees, amends Title VII of the Civil Rights Act of 1964 and now makes "pregnancy" a stand-alone protected status under federal anti-discrimination laws. The Equal Employment Opportunity Commission (EEOC) issued regulations and agency guidance on April 15, 2024. These extensive rules and guidance will become effective on June 18, 2024.
As published, the final rules and interpretive guidance are 125 pages in 9-point font. Suffice it to say that there is a lot of information to unpack. Given the scope of the information provided and the potential impact the PWFA will have on employers, we are deviating from our norm and will provide this update in a three-part series. This series is crucial for comprehensively understanding the PWFA and its implications. The first part will provide a history of the development of the legal landscape and why Congress passed the PWFA. The second and third parts of the series will take a deep dive into the substantive provisions of the PWFA. Don't worry. We will close out this series by offering recommendations you can implement to ensure you comply with the EEOC's shiny new toy, the PWFA.
The Pre-PWFA Regulatory Landscape for Pregnant Employees
Title VII does not require employers to accommodate pregnancy, childbirth, or related medical conditions. Instead, the Pregnancy Discrimination Act ("PDA") amended the phrases "because of sex" or "on the basis of sex" to include "because of or on the basis of pregnancy, childbirth, or related medical conditions." In effect, the PDA requires employers to treat women affected by a pregnancy, childbirth, or related medical conditions the same way they treat employees not so affected but similar in their ability or inability to work. Thus, employers do not have an affirmative duty to accommodate women who have limitations arising from their pregnancy under Title VII or the PDA.
The Americans with Disabilities Act ("ADA"), however, requires employers to accommodate qualified individuals with disabilities. This may include limitations arising from pregnancy if the condition is severe enough to meet the definition of disability under the ADA. In practice, the ADA does not cover the usual limitations that may arise from an uncomplicated pregnancy but regularly impacts pregnant workers. Because of this, most "run of the mill" limitations or conditions arising from pregnancy, if such even exists in the mind of anyone, are not covered by the ADA.
What is the PWFA Designed to Accomplish?
If we already have protections for pregnant employees in Title VII and the ADA, why was there a need to enact the PWFA? EEOC Chair Charlotte Burrows and Acting Secretary of Labor Julie Su stated on the first anniversary of the passage of the PWFA that "Failures to accommodate limitations related to pregnancy and nursing have long acted as barriers to equitable workforce participation by women." The PWFA, a significant stride towards workplace equality, was enacted to address these barriers. Because of these barriers, many members of Congress believed that significant revisions to Title VII of the Civil Rights Act were necessary to level the playing field for working mothers.
The PWFA fills the gaps left open by the PDA and the ADA, requiring employers to make specific accommodations for "pregnancy, childbirth, or related medical conditions" absent undue hardship. The enactment of the PWFA now requires employers to accommodate a broader range of limitations that may impact pregnant employees but are not sufficiently severe to rise to a "disability" under the ADA.
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