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What’s new in the Pregnant Workers Fairness Act?

On Behalf of | May 23, 2023 | Firm News

At the end of 2022, President Joe Biden signed the Pregnant Workers Fairness Act into law. This law goes into effect on June 27, 2023, and it provides a new measure of federal protections to pregnant workers.

Of course, you might be wondering, “What does this law do that others didn’t already do?” And that would be a good question. After all, the Equal Employment Opportunity Commission (EEOC) already enforces four other federal laws that offer protections for pregnant employees. Then, various states offer additional protections with state laws.

The five key protections

As the EEOC notes, the Pregnant Workers Fairness Act (PWFA) only applies to covered employers. This includes employers with 15 or more employees and government offices, including the personal offices of Senators and members of the House of Representatives. The PWFA protects pregnant workers by imposing five key restrictions on these employers’ actions:

  • They may not force employees to accept accommodations without first discussing the accommodation with the worker
  • They may not deny jobs or work opportunities to qualified applicants or employees if they can perform the work with reasonable accommodations
  • They may not force pregnant workers to take leave if the workers can continue to serve with reasonable accommodations
  • They may not retaliate against workers who report violations of the PWFA
  • They may not interfere with pregnant workers attempts to assert their rights under the PWFA

These may not appear to add much to the legal landscape, given that pregnant employees already benefit from many of the same protections under other laws. However, there are two reasons these protections matter.

The first is that pregnant employees still need stronger protections. As we noted in an earlier blog, hundreds of pregnant employees recently filed claims against the U.S. Customs and Border Protection after their supervisors put them on Temporary Light Duty as soon as they said they were pregnant.

The second reason these new protections matter is that they clarify some key protections.

How the PWFA clarifies key protections

To better understand how the PWFA really helps pregnant workers, it’s good to look at the issue in a historical context. As one of the Senior Staff Attorneys at the ACLU noted, women and pregnant women have struggled for equal rights in the workplace for decades. In fact, most states had laws that limited women’s ability to work overtime and hazardous jobs up until Congress passed the Civil Rights Act of 1964.

Title VII of the Civil Rights Act spelled an end to most of those laws, but pregnant workers continued to find themselves shut out of fringe benefits, such as health insurance. Eventually, Congress passed the Pregnancy Discrimination Act (PDA), which added “pregnancy, childbirth, and related medical conditions” to the definition of “sex” under Title VII.

Importantly, the PDA also demanded that pregnant workers should receive the same treatment as others “similar in their ability or inability to work.” And as the ACLU notes, employers continued to mistreat women who took strenuous jobs but then sought temporary light duty, or other accommodations, while pregnant. This problem was amplified by the fact that courts often sided with these employers, based on their interpretations of whether the pregnant employees were “similar [to other employees] in their ability or inability to work.”

The PWFA removes the need to check for similarities. It removes that burden from the pregnant employees. It removes that argument from the employers. And it removes that interpretation from the courts.

Protections are only as strong as people make them

The PWFA clarifies and reinforces the need for employers to make reasonable accommodations for pregnant employees and applicants. Accordingly, it strengthens the legal protections these workers can expect.

However, the truth is that some employers, even federal agencies, will continue to break these rules. The protections the PWFA offers are only helpful when the workers who face pregnancy discrimination stand up and use the new law to hold wrongdoers accountable. Fortunately, they no longer need to make the “similar” argument. Instead, they only need to show their requests for accommodations were reasonable and did not place an “undue hardship” upon their employers.


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