The first handful of federal lawsuits under the newly enacted Pregnant Workers Fairness Act (“PWFA”) are well underway, living up to the U.S. Equal Employment Opportunity Commission’s (“EEOC”) commitment to defend victims of pregnancy discrimination.[i]  The PWFA expands on the current Pregnant Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”). Pregnant employees are granted greater protections accommodating for certain known limitations that are unique to pregnancy, childbirth, or related medical conditions.

   I. The Inception of the Pregnant Workers Fairness Act

Prior to the PWFA, the ADA covered pregnant workers only if they had disabilities because of pregnancy, such as gestational diabetes or preeclampsia. Under the ADA, pregnancy generally is not considered a disability. Additionally, the PDA prohibits discrimination against pregnant workers based on their pregnancy status but does not effectively require that employers grant reasonable accommodations or acknowledge that pregnant workers have known limitations because of their pregnancy, with or without an accompanying disability. The PWFA recognizes pregnancy as a stand-alone protected class—not coupled with a pregnancy-induced disability—and closes the gaps of protections under the ADA and PDA.

Effective June 27, 2023, the PWFA resolves issues with both the ADA and PDA and requires employers to extend reasonable accommodations to pregnant employees. Reasonable accommodations under the Act include light duty, modified work, remote work, the ability to sit or stand during work, reserved parking, and increased restroom and/or water breaks.[ii]  The EEOC is responsible for enforcing the provisions of the PWFA. After receiving a charge of discrimination alleging violations of the PWFA, the EEOC will investigate the allegations, and should violations exist, the commission will attempt conciliation with the employer. Should those attempts fail, the EEOC has the authority to sue the employer on behalf of the individual.

   II. The EEOC’s First Trimester

EEOC v. Wabash National Corporation is the first federal lawsuit filed by the EEOC asserting a violation of the PWFA. The complaint hinges on two PWFA violations: (1) the company’s failure to provide reasonable accommodations to an employee with a known pregnancy limitation and (2) the company’s medical questioning methods.

Wabash denied a pregnant employee’s accommodation request to transfer to a role that did not require lying on her stomach. Instead, the company forced her to take unpaid leave and ultimately gave her no choice but to return to her position without modification…she was forced to resign nearly eight months pregnant…the company also unlawfully required medical documentation, and failed to accommodate even though it could have provided changes similar to those the company provides for non-pregnant workers with similar limitations.[iii]

Like Wabash, EEOC v. Urologic Specialists of Oklahoma, Inc. was filed by the EEOC asserting violation of the PWFA, highlighting the requirement that employers provide adequate breaks and the ability to sit while working as a reasonable accommodation, especially given that the employee’s pregnancy was high risk. The complaint also alleges violations of the PUMP Act, allowing for reasonable breaks for the expression of breastmilk.[iv]

In addition, EEOC v. Polaris Industries, Inc. illustrates that an employer is prohibited from taking adverse action against employees for pregnancy-related attendance needs.

[T]he company assessed attendance points against her and warned that she would be terminated if she acquired another point. As a result, the employee resigned to avoid termination and protect her pregnancy. “It is … illegal under the PWFA to take adverse action against an employee requesting a reasonable accommodation related to pregnancy, childbirth or related medical conditions of that employee.[v]

   III. How Employers Comply and How Employees Remain Protected

Understanding how PWFA is distinguishable from the PDA and the ADA is critical for employers and equally important for employees to understand. These three cases highlight four distinctions between the PWFA, and the PDA and the ADA combined, and shine light on the need for change in employer procedure. For employers, an in-house overview of current practices, when an employee contacts human resources to inform them of a disability, pregnancy, or request for accommodation, is essential. Employee policies before June 27, 2023, will likely no longer comply with the PWFA. Ensuring HR is trained to handle these claims will result in fewer charges from the EEOC.

Importantly, the EEOC does not mandate that employers accommodate to the detriment of business needs. Suppose the accommodation would cause undue hardship to the business, significant difficulty, or expense. In that case, employers should be very careful before denying the accommodation and always consult with counsel to find another reasonable accommodation in line with business needs. The EEOC’s guidance on the PFWA helps ensure that a denial of accommodations does not turn into problematic consequences. Additionally, the PWFA clarifies what documentation an employer can request from the employee and which documents are off-limits, as seen in Wabash.[vi]  The PWFA protections extend to fertility treatments, infertility treatments, contraception, pregnancy, expressing breastmilk, and postpartum.[vii]

   IV. Conclusion

While the PWFA resolves key issues that the ADA and PDA leave out, it is far from perfect for employees. One glaring gap in the PWFA’s protections is the rights afforded to surrogacy. This protection is specifically important to same-gender couples.[viii]  While neither “intended parent” will display obvious signs of pregnancy, they will require reasonable accommodations to attend doctor’s appointments, delivery, maternity and/or paternity leave, and postpartum care. Surrogacy laws are not federally regulated—they are regulated by State law—and currently not under the purview of the EEOC. This is a big problem and has the potential to open doors to surrogacy discrimination in employment law. Expanding the PWFA, PDA, and ADA to include surrogacy is long overdue. In sum, the PWFA is a positive step in protecting pregnant employees. Yet, it requires further revisions to protect the same-gender intended parents and prevent the obvious litigation that would follow.

[i] See Overview, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/overview (last visited Sept. 29, 2024) (stating that the Equal Employment Opportunity Commission is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee on multiple grounds, including pregnancy, childbirth, and related conditions); see also Pregnancy Discrimination and Pregnancy-Related Disability Discrimination, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/pregnancy-discrimination (last visited Sept. 27, 2024) (describing the three laws that protect pregnant employees and applicants on a federal level).

[ii] 42 U.S.C. § 2000gg (7).

[iii] See EEOC Sues Wabash National for Pregnancy Discrimination, U. S. Equal Emp. Opportunity Comm’n (Sept. 10, 2024), https://www.eeoc.gov/newsroom/eeoc-sues-wabash-national-pregnancy-discrimination (describing the allegations of the first EEOC lawsuit under the PWFA).

[iv] See Erin Jackson & Eliza Horne, The Birth of New Rights for Pregnant, Postpartum, and Nursing Employees, The Fla. Bar (May/June 2023), https://www.floridabar.org/the-florida-bar-journal/the-birth-of-new-rights-for-pregnant-postpartum-and-nursing-employees/ (last visited Sept. 29, 2024) (stating the PUMP Act’s protections for nursing mothers as a key distinction from the PDA and ADA);  see also EEOC Sues Two Employers Under the Pregnant Workers Fairness Act, U.S. Equal Emp. Opportunity Comm’n (Sept. 26, 2024), https://www.eeoc.gov/newsroom/eeoc-sues-two-employers-under-pregnant-workers-fairness-act (stating that two recent EEOC suits against employers both failed to provide reasonable accommodations to pregnant employees—a direct violation of the Act’s provisions).

[v] See EEOC Sues Two Employers Under the Pregnant Workers Fairness Act, supra note iv.

[vi] See generally EEOC Sues Wabash National for Pregnancy Discrimination, supra note iii; see also Thomas Raine & Lisa Berg, The EEOC Final Rule on the Pregnant Workers Fairness Act Takes Effect, BeLabor the Point Blog (June 18, 2024), https://www.belaborthepoint.com/2024/06/the-eeoc-final-rule-on-the-pregnant-workers-fairness-act-takes-effect/#more-8522 (stating employers are prohibited from requesting documents when the employee obviously needs a reasonable accommodation based on pregnancy, when an employer already has enough documents to make a determination, and when the requested reasonable accommodation is for the expression of breastmilk).

[vii] See Pregnancy Discrimination and Pregnancy-Related Disability Discrimination, supra note i.

[viii] See Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, U. S. Equal Emp. Opportunity Comm’n (May 23, 2007), https://www.eeoc.gov/laws/guidance/enforcement-guidance-unlawful-disparate-treatment-workers-caregiving-responsibilities (illustrating instances which prove discrimination against an employee based on caregiving responsibilities, and how it creates a disparate impact under Title VII or the ADA).