iOn December 22, 2022, the U.S. Senate passed the Pregnant Workers Fairness Act (PWFA) via a bipartisan 73-24 vote as part of the Consolidated Appropriations Act. President Biden signed the bill into law a week later. The PWFA goes into effect on June 27, 2023, and will apply to claims stemming from events occurring on or after this date. The PWFA improves protections for pregnant employees in several key respects, including by requiring employers to: (1) accommodate all pregnancy-related medical conditions (and not just those that qualify as disabilities under the ADA); (2) work with pregnant employees to determine a reasonable accommodation for a pregnancy-related medical condition, with leave as a last-resort accommodation; and (3) accommodate pregnant employees even when they temporarily cannot perform essential functions of their jobs. Another new piece of legislation, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which also passed this past December, establishes new protections for employees following the birth of their children. This blog provides background on the prevalence of pregnancy discrimination and the gaps in existing federal law; details the PWFA and PUMP Act’s protections and requirements; and offers takeaways for pregnant or nursing employees.
Background on the PWFA
Prior to the passage of the PWFA, protections for pregnant employees were limited to those available under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act of 1990 (ADA). While these laws protect pregnant employees from certain forms of discriminatory treatment, they often fall short when a pregnant worker needs an accommodation. This is because these statutes require pregnant employees to either identify an employee who is similarly situated in their ability or inability to work and receiving the accommodation the pregnant employee seeks, or demonstrate a pregnancy-related disability—insurmountable bars in the mine-run of pregnancy discrimination and accommodation cases.
The Pregnancy Discrimination Act
Adopted in 1978, the PDA amended Title VII to provide that the terms “‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” Accordingly, the PDA provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability to work.” In Young v. United Parcel Services Inc. a pregnant worker asked to be given a light duty assignment because of restrictions her doctor prescribed, and UPS denied that request because she was not in one of the groups entitled to light duty under its policies. The lower courts ruled in favor of UPS. The Supreme Court held in 2015 that Young should be allowed to proceed with her case and that she could prevail if she could show that UPS’s nondiscriminatory reasons for its policy were insufficient to justify their significant burden on pregnant workers. In reaching that conclusion, the Court said that the PDA does not grant pregnant employees a “‘most-favored-nation’ status,” so an employer’s provision of accommodations to one or two workers does not mean that “it must provide similar accommodations to all pregnant workers (with comparable physical limitations).” Accordingly, employers can refuse to provide accommodations to pregnant workers without running afoul of the PDA, so long as the requested accommodation is not routinely provided to similarly-situated individuals in the workplace or can otherwise be justified by legitimate, nondiscriminatory reasons.
Following Young, many pregnancy-accommodation cases failed due to the difficulty of meeting Young’s standards. A June 2021 report from A Better Balance, which included an extensive review of post-Young pregnancy-accommodation cases, found that, in over two-thirds of cases, employers were permitted to deny pregnant employees their requested accommodations. Often this was because pregnant women struggled to identify a proper comparator (i.e., a similarly-situated employee receiving the requested accommodation). In other instances, courts struggled to assess whether denial of the requested accommodation imposed a “significant burden” on the pregnant employee, the standard for discrediting an employer’s proffered justification for denying a requested accommodation. Across the board, pregnant employees in need of immediate accommodations faced the burden of having to litigate their claims in order to achieve relief.
The Americans with Disabilities Act
In addition to the PDA, the ADA offers some protections for pregnant employees, but only if they can demonstrate a pregnancy-related disability. The ADA defines such a disability as a “pregnancy-related condition” that causes “a physical or mental impairment that substantially limits one or more major life activities of [the] individual.” While some pregnant employees may qualify for protection under the ADA, employees with pregnancy-related medical conditions that do not “substantially limit” at least one major life activity are not eligible for accommodation. The U.S. Equal Employment Opportunity Commission (EEOC) has provided extensive guidance on what types of pregnancy-related conditions might qualify for coverage under the ADA.
Prevalence of Pregnancy Discrimination
Despite the protections afforded by the PDA and ADA, discrimination against pregnant employees continues to be a problem. Each year, about seven in ten women who give birth also hold jobs. Many of these women fear or experience pregnancy-related discrimination. In February 2022, the Bipartisan Policy Center and Morning Consult surveyed a national sample of 2,200 adults about the prevalence of pregnancy discrimination in the workplace. The survey found that approximately one in four mothers (23%) “have considered leaving their jobs due to a lack of reasonable accommodations or fear of discrimination during pregnancy,” while one in five mothers (21%) reported being scared to tell their employers about their pregnancies due to fear of discrimination or retaliation. A further one in five mothers (20%) reported that they had personally experienced pregnancy discrimination in the workplace. Indeed, between October 2010 and September 2015, nearly 31,000 charges of pregnancy discrimination were filed with the EEOC and related state-level agencies. Of these charges, 31% related to terminations from employment, while 12% pertained to discriminatory terms or conditions of employment and 7% related to harassment. Notably, charges filed with the EEOC only represent the tip of the iceberg. The EEOC estimates that only 6–13% of workers who experience discrimination or harassment file a complaint.
The PWFA’s Protections
The PWFA aims to fill the gaps in the protections afforded by the PDA and ADA by establishing a clear national standard that requires employers to make reasonable accommodations for pregnant employees who need them.
The PWFA requires that employers with 15 or more employees grant temporary, reasonable accommodations to workers with known limitations related to pregnancy, childbirth, or related medical conditions, including both current employees and job applicants, so long as the accommodation will not cause an “undue hardship” for the employer. Employers must engage in an interactive process with the employee or applicant to determine a reasonable accommodation. An employer may not require the employee to take paid or unpaid leave if another reasonable accommodation is available. Examples of possible reasonable accommodations include the provision of a closer parking space; the ability to sit or drink water during a shift; additional break time to use the restroom, eat, or rest; and being excused from strenuous activities. Whether or not a requested accommodation presents an undue hardship will be evaluated on a case-by-case basis. Factors to consider in determining undue hardship include the size and financial resources of the employer relative to the type of accommodation requested by the employee. Further, employers must provide reasonable accommodations even if an employee cannot perform all essential functions of the job, so long as the employee’s inability to perform these functions is temporary.
The PWFA also prohibits employers from denying employment opportunities to qualified employees because of their need for reasonable accommodations. It further protects covered employees from retaliation, coercion, interference, intimidation, or threats in response to requests for or receipt of a reasonable accommodation. Relief for private-sector employees is the same as that provided under Title VII and includes reinstatement, back pay, front pay, compensatory damages, punitive damages, and reasonable attorneys’ fees and costs. Employees can bring a private right of action against their employer after exhausting all available administrative remedies, and the EEOC and the Attorney General have the same investigatory powers that they have under Title VII.
The PWFA directs the EEOC to issue regulations implementing the law within one year of the date of the law’s enactment. The EEOC will issue a proposed version of its regulations for public comment before the regulations are final. Thirty-one states, including the District of Columbia, and four cities have passed laws requiring some employers to provide protections to pregnant employees. To the extent these laws offer greater protection for workers affected by pregnancy, childbirth, or medical complications therefrom than those afforded by the PWFA, the PWFA explicitly provides that they are not superseded.
The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act
Related federal legislation that provides protections for nursing mothers, the PUMP Act, also became law in December 2022 and goes into effect later this month, on April 28, 2023. The PUMP Act amends the Fair Labor Standards Act (FLSA) and requires most of the employers who are covered under the FLSA to provide nursing mothers with break times and private spaces, other than bathrooms, in which to express milk for up to one year following their child’s birth. Employers with fewer than 50 employees are exempt if they can show that providing a private space for pumping would present an “undue burden.”
Last month, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued guidance for employers on compliance with the PUMP Act. First, WHD provided guidance on the frequency and duration of breaks. Per WHD, the frequency and duration of reasonable breaks, which may be taken each time an employee has need to express milk, will depend on various factors, including: the age of the child, how long the mother needs to pump, and how often the mother needs to pump, how far the private space for pumping is from the employee’s work station, and whether the private space is set up such that the pump and equipment are ready for use. Employees who are working remotely are eligible to take pump breaks with the same frequency and duration as employees who are working in person. Both remote and in-person employees must be completely relieved from duty to be considered on break while pumping, or they must be compensated for their time. Where employees use employer-provided, paid breaks to pump breast milk, they must be compensated in the same way that other employees are compensated for break time.
Second, WHD provided guidance on the nature of a suitable private pumping space. The PUMP Act provides that covered employers must have a space “that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” A bathroom, even if private, is not a permissible location for an employer to provide to an employee needing to pump. At the same time, a permissible location need not be dedicated to the nursing employee’s use; a space that is temporarily created or converted into a pumping space is sufficient so long as it is shielded from view and free from intrusion from coworkers or the public. If the employer needs to install blinds or other implements to ensure that the space is private, WHD will not consider this an undue burden.
Finally, WHD addressed the PUMP Act’s anti-retaliation provision. An employer violates this provision when it interferes with an employee’s rights under the Act or retaliates against an employee for exercising her rights, such as by switching the employee to a lower-paying role, a historically-common practice among employers. Employees are protected from retaliation whether their complaints are made orally or in writing. Further, as WHD notes, most courts have ruled that internal complaints, as well as external complaints to WHD, are protected from retaliation.
Remedies under the PUMP Act may include employment; reinstatement; promotion; payment of lost wages and an additional, equal amount of liquidated damages; payment of compensatory damages and make-whole relief, such as any economic violations that resulted from the employer’s violation; and punitive damages.
Conclusion
The PWFA and PUMP Act provides new, long-overdue protections for pregnant and nursing employees. The law has progressed significantly since a judge held in 2012 that firing a woman because she wanted to pump at work was not sex discrimination because lactation is not pregnancy-related. While that decision was overturned by the Fifth Circuit, the district court’s reasoning shows what working mothers were up against. Beginning this spring, employers are required to provide reasonable accommodations to employees with pregnancy-related medical conditions, so long as the accommodations do not present an undue hardship to the employer. They also must provide break times and private pump spaces to nursing mothers.
