Understanding the New Pregnant Workers Fairness Act

Lynn Ridgeway Zehrt wrote an article for the Nashville Bar Journal’s July 2014 issue, titled Resolving the Great Divide in Pregnancy Discrimination. This article serves as a companion piece about the new federal Pregnant Workers Fairness Act.

Congress recently enacted legislation requiring most private and public employers to provide reasonable workplace accommodations for the known limitations of their pregnant workers.1 This new statute, the Pregnant Workers Fairness Act (“PWFA”), garnered bipartisan support in Congress and received endorsements from over 230 organizations including the U.S. Chamber of Commerce, the Society of Human Resource Management, and the National Organization for Women.2

The PWFA contains several new substantive requirements that are designed to “eliminate discrimination and promote women’s health and economic security.”3 First, the statute requires private employers with fifteen or more employees to grant reasonable accommodations to an employee or applicant whose ability to perform the essential functions of a job is limited by pregnancy, childbirth, or related medical conditions.4 The PWFA also forbids employers from forcing pregnant workers to take leave rather than providing them with a reasonable accommodations that would allow them to continue to work while pregnant.5 Additionally, the PWFA directs employers to engage in an interactive process with pregnant workers about possible accommodations,6 and it prohibits employers from retaliating against workers who engage in statutorily protected conduct.7

Moreover, the PWFA is a hybrid statute, incorporating portions of both Title VII of the Civil Rights Act of 1964 (“Title VII”), as well the Americans with Disabilities Act (“ADA”).8 First, the PWFA incorporates Title VII’s remedial provisions.9 These provisions expressly permit plaintiffs to recover capped compensatory and punitive damages, as well as other remedies, against employers who intentionally violate the PWFA’s substantive provisions. Second, the PWFA does not define the term “reasonable accommodations,” but the statute expressly incorporates the ADA’s definition.10 Also, the House Committee on Education and Labor’s official report recommending the PWFA offered several examples of reasonable accommodations, including “[the ability to sit or drink water]; closer parking; flexible hours; appropriately sized uniforms and safety apparel; additional breaktime to use the bathroom, eat, and rest; excusing the worker from strenuous activities.”11 Third, the PWFA provides employers with the flexibility to refuse a requested accommodation when the employer establishes that such accommodation poses an undue hardship on the employer.12 Here again, the PWFA incorporates the ADA’s definition of “undue hardship” and considers whether the accommodation would cause the employer to incur significant difficulty or expense.13

When enacting the PWFA, Congress considered the limited ability to obtain pregnancy accommodations under other federal laws.14 Specifically, both the ADA and Title VII provide only limited protection to pregnant workers, so most pregnant workers still lack uniform access to reasonable workplace accommodations without additional legislation.15 For instance, under the ADA, pregnancy historically was not considered a disability by either the Equal Employment Opportunity Commission (“EEOC”) or most federal courts because it was deemed a normal and temporary medical condition.16

Even after the enactment of the ADA Amendments Act of 2008 (“ADAAA”), which sought to expand coverage to individuals with disabilities, the EEOC continued its pregnancy exclusion, explaining that “pregnancy itself is not a disability, [although] pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.”17 Thus, only certain complications arising during pregnancy qualified as disabilities under the ADAAA, and even this limited protection was uncertain because many courts remained reticent to extend the law’s protections to pregnancy-related complications.18

Nor does Title VII, as amended by the Pregnancy Discrimination Act of 1978 (“PDA”), impose an affirmative obligation on employers to provide reasonable accommodations to most pregnant workers.19 Rather, the PDA primarily forbids discrimination against pregnant workers and requires employers to treat “women affected by pregnancy, childbirth, or related medical conditions … the same for all employment-related purposes … as other persons … similar in their ability or inability to work.”20 Courts have explained that this provision only mandates equal treatment, not preferential treatment, for pregnant workers.21 Thus, the PDA would only require an employer to accommodate a pregnant worker if the employer provided an accommodation to a nonpregnant employee who was “similar in their ability or inability to work.”22 For years, the federal courts of appeals were divided over the application of this comparative standard, namely which employees would serve as valid comparators to pregnant workers for purposes of obtaining a reasonable accommodation under the PDA.23 Moreover, the Supreme Court’s decision in Young v. UPS did not definitively clarify which nonpregnant workers were relevant comparators, explaining only that the identification of a comparator should not be “onerous” on workers and does not require them to be similar “in all but the protected ways.”24 A study conducted on reasonable accommodation cases after the Young decision concluded that “‘over two-thirds of workers lost their pregnancy accommodation cases [under the PDA]. Nearly seventy percent of those losses can be traced to courts’ rejection of women’s comparators or inability to find comparators.”25

Ultimately, Congress enacted the PWFA to provide “clarity in the current legal framework … [and] clear guidance to both workers and employers” thereby “reducing the potential for costly litigation.”26 Moreover, Congress explained that broadening access to pregnancy accommodations was an important national issue because “[w]hen pregnant workers do not have access to reasonable workplace accommodations, they are often forced to choose between their financial security and a healthy pregnancy.”27 Approximately thirty states, including Tennessee,28 previously enacted pregnancy accommodation statutes,29 but beginning June 27, 2023, the PWFA will ensure more uniform access to reasonable accommodations for pregnant workers throughout the country.30 n

LYNN RIDGEWAY ZEHRT is an Associate Professor of Law at Belmont University College of Law. Professor Zehrt earned her LL.M. from Georgetown Law Center graduating with distinction, and her J.D. from the University of Alabama School of Law graduating magna cum laude. Professor Zehrt teaches a variety of courses at Belmont Law, including Civil Procedure I and II, Evidence, Professional Responsibility, Employment Law, and Employment Discrimination, and she regularly publishes scholarship in the labor and employment law area. Professor Zehrt extends her appreciation to her research assistant, Jacob Greene, for his contributions to this article.

Endnotes

1 Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, Div. II, §§ 101-109, 136 Stat. 4459, 6084-89 (West 2022) (hereinafter “Pregnant Workers Fairness Act”).

2 See H.R. REP. NO. 117-27, pt. 1, at 5-8 (2021).

3 Id. at 1.

4 Pregnant Workers Fairness Act §§ 102(2)(B)(i), 102(3)(A), 103(1).

5 Id. § 103(4).

6 Id. § 103(2).

7 Id. § 104(f).

8 See Civil Rights Act of 1964, Pub. L. No. 88-352, § 701(b) (1964) (hereinafter, “Title VII”); Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2 (1990).

9 Pregnant Workers Fairness Act § 104(a)(1)-(3).

10 Id. § 102(7).

11 See H.R. REP. NO. 117-27, pt. 1, at 22.

12 Pregnant Workers Fairness Act § 103(1).

13 Id. § 102(7).

14 See H.R. REP. NO. 117-27, pt. 1, at 19–21.

15 See generally id. at 5–21.

16 Lynn Ridgeway Zehrt, A Special Delivery: Litigating Pregnancy Accommodation Claims After the Supreme Court’s Decision in Young v. United Parcel Service, Inc., 68 RUTGERS U. L. REV. 683, 689–90, 709 (2016) (discussing the historical interpretation of whether pregnancy qualified as a disability under the Americans with Disabilities Act).

17 Fact Sheet for Small Business: Pregnancy Discrimination, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc. gov/laws/guidance/fact-sheet-small-businesses-pregnancy-discrimination (last visited Mar. 11, 2023).

18 See H.R. REP. NO. 117-27, pt. 1, at 19-20.

19 Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (2012).

20 Id.

21 See e.g., Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994) (declaring that the PDA allows an employer to “treat pregnant women as badly as they treat similarly affected but nonpregnant employees”); Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 207 (5th Cir. 1998) (“[M]ost courts have held that the PDA does not impose an affirmative obligation on employers to grant preferential treatment to pregnant women.”).

22 42 U.S.C. § 2000e(k).

23 Lynn Ridgeway Zehrt, Resolving the Great Divide in Pregnancy Discrimination, 14 Nash. B.J. 6, 7, 14 (July, 2014).

24 Young v. United Parcel Serv., Inc., 575 U.S. 206, 228 (2015) (citations omitted).

25 See H.R. REP. NO. 117-27, pt. 1, at 16 (internal citations omitted).

26 Id. at 11, 31.

27 Id. at 5.

28 Tennessee Pregnant Workers Fairness Act, Tenn. Code Ann § 50-10-101, et seq. (2020).

29 See Nat’l P’ship for Women & Fam., Reasonable Accommodations for Pregnant Workers: State and Local Laws 1 (April 2022), https://www.nationalpartnership. org/our-work/resources/economic-justice/pregnancy-discrimination/reasonable-accommodations-for-pregnant-workers-state-laws.pdf [https://perma.cc/GW6S7J2C] (“Thirty-one states, including the District of Columbia, and four cities have passed laws requiring some employers to provide reasonable accommodations to pregnant workers.”).

30 Pregnant Workers Fairness Act § 107(a)(1) (clarifying that the PWFA does not invalidate any State Law that provides “greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions”).