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What to Expect When You’re an Employee Expecting: How the New Pregnancy Workers’ Fairness Act Strengthens Workplace Protections

Shannon Black & Brooke López*

Trial Attorneys, U.S. Equal Employment Opportunity Commission

ISSUE 14

FALL 2023

CIVIL RIGHTS

Growing a human is hard work, and for many pregnant people, their pregnancy impacts all aspects of their lives. Doctors’ appointments, nausea, and difficulty walking long distances, among other things, are not side effects of pregnancy limited to a pregnant person’s time at home. Inevitably, many pregnant people require accommodations in the workplace to keep themselves and their babies healthy. Accommodations are modifications to the way an employee normally conducts their work, such as longer breaks, flexible hours, or exemptions from lifting heavy objects.¹ Unfortunately, many employers have been historically averse to granting pregnant workers the accommodations they need. Because of this, important anti-discrimination laws provide protections for pregnant people in the workplace. No pregnant person should be terminated, retaliated against, or otherwise discriminated against for requesting reasonable accommodation for their pregnancy. But what steps should a pregnant person take if this does happen? This article aims to inform you of your rights as a pregnant person in the workplace. Spoiler alert: these protections just got MUCH stronger.

 

Unfortunately, discrimination against pregnant workers is more common than we might hope. The Equal Employment Opportunity Commission (“EEOC”), the federal agency enforcing several anti-discrimination statutes, received 2,261 pregnancy discrimination charges during the 2021 fiscal year.² These charges include claims that employers failed to accommodate their pregnant employees. Yet it is likely there are far more instances of discrimination against pregnant workers than is reported to the EEOC. If you applied to work, currently work, or recently worked for an employer with fifteen or more employees in a calendar year, you may be entitled to an accommodation pursuant to federal anti-discrimination statutes.³ Below provides some guidance on these laws as applied in Texas, Mississippi, and Louisiana.

 

If I am a pregnant employee, what laws protect me from discrimination?

 

There are three laws that are designed to protect a pregnant person from discrimination: the Pregnancy Discrimination Act of Title VII (“PDA”), the Americans with Disabilities Act (“ADA”), and the Pregnant Workers Fairness Act (“PWFA”). Each law provides different types of rules for who qualifies for an accommodation and what type of accommodations you can seek. But don’t worry, we’re going to break down each law and the protections it provides in the coming paragraphs to make sure you’re aware of your rights and the steps you need to take to enforce them.

 

Pregnancy Discrimination Act: Accommodations received by non-pregnant employees

 

Although other anti-discrimination laws existed prior to 1978, pregnant workers were largely unprotected in the workplace when it came to pregnancy-related accommodations they may require. In 1978, Congress made its first attempt to support pregnant workers by passing the Pregnancy Discrimination Act. The PDA provides the narrowest protections out of the three statutes listed above. Under the PDA, an employee has access to accommodations granted to other non-pregnant employees in their workplace. Essentially, the PDA attempts to level the playing field, giving pregnant workers access to the same accommodations their colleagues may receive for other disabilities. Generally, this means an employee seeking an accommodation under the PDA would need to show another non-pregnant employee, or employee without a pregnancy-related condition, was already receiving the requested accommodation in nearly identical circumstances. Under the PDA, courts only consider whether someone else is receiving the same accommodation under similar circumstances. While well-intentioned, the PDA, in practice, does not provide strong protection for pregnant workers seeking accommodations.

 

The main obstacle when asking for a PDA accommodation is providing evidence of non-pregnant individuals receiving the same accommodation. The courts interpret these criteria very narrowly. For example, in Stout v. Baxter Healthcare Corp., an employee who was absent for roughly two and a half weeks while recovering from a miscarriage was not entitled to a short-term leave accommodation under the PDA because other non-pregnant employees were not permitted to take similar short-term leave. Simply put, if a non-pregnant employee could not receive the accommodation, the PDA does not provide the same protection for a pregnant employee.

 

In another recent PDA case, Carmona v. Dejoy, a pregnant USPS rural mail carrier was unable to show other rural mail carriers received the same type of accommodation she requested.¹⁰ The pregnant mail carrier requested two accommodations: that she not lift packages heavier than ten pounds and that she receive a break during any of her shifts lasting longer than eight hours.¹¹ USPS denied both accommodations.¹² The court held USPS did not have to accommodate her because she did not provide evidence of non-pregnant employees receiving the same accommodations under “nearly identical circumstances.”¹³ Specifically, the court said the pregnant mail carrier was only able to show that several of her coworkers received “package assistance” with large packages, not that they received an accommodation on all packages greater than ten pounds nor that they received a break during an eight-hour shift.¹⁴ Because the accommodations received by non-pregnant employees were not similar enough, the pregnant employee was not entitled to an accommodation.¹⁵ You can see the courts follow a very strict standard when enforcing the PDA.

 

These real-life examples demonstrate how the PDA alone isn’t strong enough to protect pregnant employees from discrimination or accommodation denial. Don’t be discouraged. Luckily, we have additional protections in place to support pregnant workers in America.

 

Americans with Disabilities Act: Accommodations for disabilities stemming from pregnancy

 

Under the ADA, an employee is entitled to an accommodation for pregnancy-related conditions that are considered qualifying disabilities.¹⁶ A qualifying disability is defined as a physical or mental impairment that substantially limits one or more major life activities.¹⁷ Yet “absent unusual circumstances pregnancy and related medical conditions do not constitute a physical impairment” under the ADA.¹⁸ EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues notes pregnancy itself is not a qualifying disability.¹⁹ Rather, courts have typically only found pregnancy-related conditions that don’t fall within “normal” or non-high-risk pregnancies to be qualifying disabilities.

 

Showing a pregnancy-related condition constitutes a qualifying disability can be a challenging obstacle in seeking an ADA accommodation. Because the ADA requires “unusual circumstances” outside of a “normal” pregnancy to be present to support an accommodation, the protections for pregnant workers under the ADA are limited. This means that many beneficial accommodations for pregnant workers are not protected under the ADA in a large percentage of circumstances.

 

When a pregnant worker contends to have a “physical impairment that significantly limits her reproductive ability to carry a normal pregnancy,” such as having an incompetent cervix half the typical size, the Fifth Circuit Court of Appeals affirmed that the ailment may qualify as a disability under the ADA.²⁰ Hyperemesis gravidarum, a diagnosis of severe morning sickness characterized by dehydration, weight loss, and frequent dizziness²¹, may also qualify a pregnant person as disabled and eligible for reasonable accommodation under the ADA.²² While high-risk pregnancy symptoms or complications may be considered a disability, complications such as “normal” morning sickness, leave for routine doctors’ visits, and other requests do not fall under the protection of the ADA.²³

 

Yet there are also many cases where courts found severe, life-threatening complications did not rise to the disability standard required under the ADA. For example, when a pregnant woman experienced painful cramping, bleeding, and a miscarriage, a court held that she “was not disabled for purposes of the ADA because there [was] no evidence her cramps limited her ability to work or other major life activities.”²⁴ In 2020, one court held that a woman with preeclampsia, one of three leading causes of maternal mortality, did not have an ADA-qualifying disability because she failed to sufficiently demonstrate how the complication limited her major life activities.²⁵ 

 

By 2021, it was clear that federal law was failing to provide adequate protections to pregnant workers. When pregnant workers are not provided reasonable accommodations they require, they are often forced to choose between the impossible: financial stability for their family, and the health and safety of their pregnancy. Clearly, something had to change. 

 

Pregnant Workers Fairness Act: Accommodations for “normal” or non-high-risk pregnancies

 

Luckily, Congress also recognized the shortcomings of federal law to protect pregnant workers and passed the Pregnant Workers Fairness Act. Committee notes go so far as to address this exact need for more protections, stating, “When Congress passed the [PDA] . . . its objective was to eradicate pregnancy discrimination in the workplace. Yet nearly forty-three years after its passage, federal law still falls short of guaranteeing that all pregnant workers have reasonable workplace accommodations.”²⁶ 

 

The PWFA has the most expansive definition of who qualifies for accommodations and what type of conditions are protected. Under the PWFA, a qualified employee is entitled to an accommodation for known limitations stemming from pregnancy, childbirth, or related medical conditions absent undue hardship.²⁷ Let’s break that down.

 

You can only receive an accommodation under the PWFA if you are a qualified employee. The term “qualified employee” is an employee or applicant that can perform the essential functions of their job with or without a reasonable accommodation or individuals that are (1) unable to perform an essential function for a temporary period, (2) the essential function can be performed in the near future, and (3) the inability to perform the function can be reasonably accommodated.²⁸ Pursuant to the PWFA, individuals seeking an accommodation are still qualified if they are unable to engage in essential functions of their job for only a short period of time knowing they will eventually be able to engage in those functions again upon their recovery.²⁹ Hypothetically, a pregnant employee that normally takes patient x-rays as part of her job, can still be a qualified employee even if she requests an accommodation to forgo taking x-rays for the remainder of her pregnancy. That is because she will likely be able to take x-rays again after she gives birth, making her accommodation temporary. 

 

You can seek an accommodation under the PWFA for any known limitations stemming from pregnancy, childbirth, or related medical conditions. The term, “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition that an employee has communicated to the employer.³⁰ The PWFA covers a broader set of limitations than the other rules discussed above.

 

Hypothetically, the PWFA’s expanded definition would include limitations that fall within a “normal” or non-high-risk pregnancy such as morning sickness, vaginal bleeding, increased risk of falls, or general inability to lift items unrelated to a separate severe complication. Some “normal” pregnancy accommodations considered when PWFA was debated in congressional committee included use of a stool to sit on; additional breaktime to use the bathroom, eat, and rest; appropriately sized uniforms and safety apparel; and excusing workers from activities that involve exposure to unsafe compounds or materials.³¹

 

What conditions are covered outside of pregnancy and childbirth?


Good news! Accommodations are not exclusively limited to currently-pregnant individuals. You may be entitled to an accommodation if you have another condition related to pregnancy or childbirth. Each of the three laws above have similar definitions of what conditions are considered related to pregnancy and childbirth. Here are some of the most common conditions considered.

 

Breastfeeding & lactation

 

Breastfeeding and lactation are considered conditions related to pregnancy. This is because “lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter.”³² Accommodations for breastfeeding typically include break time or special facilities to pump, or express milk.³³

 

However, each of the three rules above treat breastfeeding accommodations differently. Under the PDA, breastfeeding accommodations are seldom granted because courts have held that without a proper comparator, breastfeeding and lactation do not impose a requirement for a special accommodation.³⁴ Under the ADA, an individual would have to show that she suffers from a disability associated with breastfeeding or lactation that substantially limits a major life activity.  Normally, lactation itself is not considered a disability.³⁵ The most liberal rule would be the PWFA. Lactation falls within related medical conditions stemming from “known limitations of pregnancy.”³⁶ Under the PWFA, an individual does not need to show someone else has a similar accommodation, nor that they have a disability to receive breastfeeding accommodations.³⁷

 

Menstruation


Menstruation is considered a condition related to pregnancy as well. This is because menstruation “is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly after the pregnancy concludes.”³⁸ Menorrhagia, is a form of severe menstrual bleeding that is heavy and long-lasting can complicate pregnancy by ectopic pregnancy or miscarriage.³⁹ Endometriosis, a condition where uterine tissue grows in locations other than the uterus, can result in infertility, extreme pain, and severe menstrual bleeding.⁴⁰ Under the ADA alone, individuals with endometriosis regularly failed to succeed in court defining endometriosis as a disability.⁴¹ Both menorrhagia and endometriosis are intertwined with pregnancy and reproduction, and it is likely the PWFA will provide support to those seeking care.


IVF


In vitro fertilization, or IVF, is a fertility treatment considered to be a medical condition related to pregnancy. Some women receive in vitro fertilization because of tubal obstruction, severe endometriosis, ovulatory dysfunction, or infertility of unexplained causes.⁴² The use of IVF can be considered a medical condition related to pregnancy because seeking fertility treatments is done pre-pregnancy and can result in pregnancy-related complications. Although under the PDA, some courts found that in order for infertility to fall within the PDA’s inclusion of “pregnancy. . . and related medical conditions” the condition must be unique to women.⁴³ The PWFA is meant to protect related conditions, and should include the use of in vitro fertilization.⁴⁴ Globally, approximately one in six people have experienced infertility at some stage in their lives.⁴⁵ Yet many U.S. employers do not have policies in place to accommodate employees and allow time off for fertility treatments, pregnancy loss, and other medical conditions.

 

While infertility and related conditions can be protected under the ADA, the PWFA requires covered employers to make accommodations to the “known limitations” related to pregnancy, childbirth, or related medical conditions thereby allowing women to be reasonably accommodated to attend appointments and undergo treatments.⁴⁶ Just as the Legislature enacted the PDA to give women the right to be financially and legally protected before, during, and after pregnancy, the new PWFA does as well. Under the PWFA, an employee could request leave for IVF treatment in order to get pregnant. Ways in which an employer can reasonably accommodate women undergoing IVF treatments could be through schedule changes, time off, or allowing telework for an employee who is feeling fatigued from IVF.⁴⁷ 

 

What should I do if I request an accommodation for pregnancy but don’t receive it?

 

So far, this article has described the rights you have as a pregnant worker. But what practical steps should you take if your rights are violated? Well, you may be able to file a charge of discrimination under the PWFA with the EEOC if you meet the following criteria:⁴⁸

 

  1. The discriminatory incident occurred on or after June 27, 2023⁴⁹ and, typically, 180 calendar days have not passed since the incident⁵⁰.

  2. You work for a qualified employer. Ordinarily, this means your employer has more than fifteen employees.⁵¹

  3. You requested a reasonable accommodation under the PWFA.

  4. Your employer responded to your accommodation request by

  5. Requiring you to accept an accommodation without a discussion about the accommodation between the you and your employer;

  6. Denying a job or other employment opportunity to you because of your request for accommodation;

  7. Requiring you to take leave instead of another reasonable accommodation that would have let you keep working;

  8. Retaliate against you for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or

  9. Interfering with any worker’s rights under the PWFA.

Filing a charge with the EEOC can be done independently online through the EEOC Public Portal.⁵² When you open the Portal, select “Filing with EEOC .” A lawyer is not required to file a charge. However, some charging parties prefer to contact a lawyer before filing a charge to receive advice during the process.

 

* Research assistance was provided by Alyssa Rodriguez, a law student at the University of North Texas at Dallas College of Law.

 

Suggested Citation: Shannon Black & Brooke López, What to Expect When You’re an Employee Expecting: How the New Pregnancy Workers’ Fairness Act Strengthens Workplace Protections, ACCESSIBLE LAW, Fall 2023, at 1.


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Sources:

[1] See e.g., H.R. Rep. No. 117-27, pt. 1, at 29 (2022).

[2] U.S. Equal Emp. Opportunity Comm’n, Pregnancy Discrimination Charges FY 2010 - 2022, https://www.eeoc.gov/data/pregnancy-discrimination-charges-fy-2010-fy-2022 (last visited Oct. 17, 2023).

[3] See U.S. Equal Emp. Opportunity Comm’n, What You Should Know About the Pregnant Workers Fairness Act, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last visited Nov. 12, 2023) (“The PWFA protects employees and applicants of ‘covered employers’ who have known limitations related to pregnancy, childbirth, or related medical conditions. ‘Covered employers’ include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.).

[4] See H.R. Rep. No. 117-27, pt. 1, at 5 (2022).

[5] 42 U.S.C.A. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”); see also, 42 U.S.C. § 2000e(k) (“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; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.”).

[6] See e.g., Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002) (holding a pregnant employee terminated for absenteeism was not treated differently because she was pregnant).

[7] Id.

[8] See Id. at 861.

[9] Id. at 860.

[10] Carmona v. Dejoy, No. 22-20064, 2022 U.S. App. LEXIS 31086, at *1-2, 5-6 (5th Cir. Nov. 9, 2022).

[11] Id. at *1-2.

[12] Id. at *2.

[13] Id. at *6.

[14] Id. at *5.

[15] Id. 

[16] See 42 U.S.C. § 12112 (b)(5)(A) (defining discrimination as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”) and § 12102 (2)(B) (defining disability as one of many “major life activities” including “reproductive functions”).

[17] Id. § 12102(2).

[18] Tomiwa v. PharMEDium Servs., LLC, No. 4:16-CV-3229, 2018 WL 1898458, at *10 (S.D. Tex. Apr. 20, 2018).

[19] U.S. Equal Emp. Opportunity Comm’n, 915.003, Enforcement Guidance on Pregnancy Discrimination and Related Issues (2015).

[20] Appel v. Inspire Pharms., Inc., 712 F. Supp. 2d 538, 546 (N.D. Tex. 2010), aff'd, 428 F. App’x 279 (5th Cir. 2011).

[21] Cleveland Clinic, Hyperemesis Gravidarum: Causes, Symptoms & Treatment, https://my.clevelandclinic.org/health/diseases/12232-hyperemesis-gravidarum (last modified February 21, 2023).

[22] Hernandez v. Clearwater Transp., Ltd., 550 F.Supp.3d 405 (W.D. Tex 2021).

[23] See Jessie v. Carter Health Care Ctr., Inc., 926 F.Supp. 613 at *616 (E.D.Ky. 1996) (employee’s pregnancy with no unusual circumstances was not a disability under the ADA.).

[24] Adireje v. ResCare, Inc., No. 1:18-CV-01429-TWP-DLP, 2019 U.S. Dist. LEXIS 170125, at * 16 (S.D. Ind. 2019).

[25] H.R. Rep. No. 117-27, pt. 1, at 21 (2022).

[26] Id. at 5.

[27] 42 U.S.C. § 2000gg-1.

[28] Id. § 2000gg(6).

[29] Id.

[30] Id. § 2000gg(4).

[31] H.R. Rep. No. 117-27, pt. 1, at 22 (2022).

[32] EEOC v. Hous. Funding II, Ltd., 717 F.3d 425, 429 (5th Cir. 2013).

[33] 29 U.S.C.A. § 218d(a)(1) (West).

[34] See Hous. Funding II, Ltd., 717 F.3d at 430 (E. Jones concurring) (“…PDA does not mandate special accommodations to women because of pregnancy or related conditions.”). See also Bye v. MGM Resorts Int’l., Inc., No. 1:20cv3-HSO-RHWR, 2021 U.S. Dist. LEXIS 240265, at *20-21 (S.D. Miss. Dec. 16, 2021) (finding a breastfeeding employee was not entitled to a break time accommodation because she could not find similar comparators).

[35] Mayer v. Prof’l Ambulance, LLC, 211 F. Supp. 3d 408, 420 (D.R.I. 2016) (holding lactation itself falls within the “normal” aspects of pregnancy and does not qualify as a disability); Tsepenyuk v. Fred Alger & Co., 2022 U.S. Dist. LEXIS 57526, at *24 (S.D.N.Y. Mar. 29, 2022) (“To the extent Plaintiff is arguing that her breast pumping and lactation constitutes a disability under the ADA, she cites no caselaw, nor is the Court aware of any precedent supporting this assertion.”)

[36] See, Delanoy v. Twp. of Ocean, 245 N.J. 384, 396 A.3d 188 (2021).

[37] Id.

[38] Hous. Funding II, Ltd., 717 F.3d at 429.

[39] Cleveland Clinic, Heavy Menstrual Bleeding (Menorrhagia): Causes & Treatment, https://my.clevelandclinic.org/health/diseases/17734-menorrhagia-heavy-menstrual-bleeding (last modified Nov. 11, 2021).

[40] Mayo Clinic, Endometriosis, https://www.mayoclinic.org/diseases-conditions/endometriosis/symptoms-causes/syc-20354656 (last modified Oct. 12, 2023).

[41] Kampmier v. Emeritus Corp., 472 F.3d 930, 938 (7th Cir. 2007); Aleman v. Sharp, No. 97-6186, 1998 U.S. App. LEXIS 18289, *11 (10th Cir. Aug. 7, 1998); Tarpley v. City Colls. of Chi., 752 F. App’x 336, 350 (7th Cir. 2018).

[42] Anis Fadhlaoui, et al., Endometriosis and Infertility: How and When to Treat?, Frontiers in Surgery, 1 (July 2, 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4286960/pdf/fsurg-01-00024.pdf.

[43]  Saks v. Franklin Covey Co., 316 F.3d 337, 346 (2d Cir. 2003).

[44] Id.

[45] World Health Organization, Infertility Prevalence Estimates, 1990-2021, 25 (Apr. 3, 2023), https://www.who.int/publications/i/item/978920068315.

[46] H.R. Rep. No. 117-27, pt. 1, at 26 (2022). 

[47] Regulations To Implement the Pregnant Workers Fairness Act, 88 Fed. Reg. 54714, 54730 (proposed Aug. 11, 2023) (to be codified at 29 C.F.R. pt. 1636).

[48] U.S. Equal Emp. Opportunity Comm’n, What You Should Know About the Pregnant Workers Fairness Act, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last visited Oct. 17, 2023).

[49] However, just because the discriminatory incident happened before the PWFA came into effect, does not mean you may not still be protected under another federal law! The EEOC can also refer you to other agencies that may be able to support you. U.S. Equal Emp. Opportunity Comm’n, EEOC Public Portal, https://www.eeoc.gov/eeoc-public-portal (last visited Oct. 17, 2023).

[50] In many circumstances, a charging party may be able to file within 300 days of the discriminatory incident. The 180-calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. U.S. Equal Emp. Opportunity Comm’n, Time Limits For Filing A Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited Oct. 17, 2023).

[51] U.S. Equal Emp. Opportunity Comm’n, Overviewhttps://www.eeoc.gov/overview (last visited Oct. 17, 2023).

[52] U.S. Equal Emp. Opportunity Comm’n, EEOC Public Portal, https://www.eeoc.gov/eeoc-public-portal (last visited Oct. 17, 2023).

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