This past June, new legislation went into effect that reflects a response to decades of discrimination against pregnant and new mothers in the workplace.[1] The Pregnant Workers Fairness Act (“PWFA”), which will be administered and enforced by the United States Equal Employment Opportunity Commission (“EEOC”), requires public and private sector employers with more than fifteen employees to provide “reasonable accommodations” to qualified employees who are affected by “pregnancy, childbirth, or related medical conditions,” unless the accommodation will cause the employer an “undue hardship.”[2]
Previous Protections
Historically, Title VII of the Civil Rights Act of 1964 and its various amendments have served to protect employees from discrimination based on pregnancy, childbirth, and other related conditions.[3] The primary source of protection under Title VII for pregnant workers was the Pregnancy Discrimination Act (“PDA”), which enabled pregnant workers to receive temporary accommodations, but only if their employer provided them to others “similar in their ability or inability to work.”[4] This language allowed many employers to refuse to accommodate pregnant employees when other non-pregnant colleagues did not require such accommodations.[5] Other amendments to Title VII, such as the Americans with Disabilities Act of 1990 (“ADA”), the Family and Medical Leave Act of 1993 (“FMLA”), and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) provided alternative protections, but the majority of workers affected by pregnancy or pregnancy-related conditions did not qualify for protection.[6]
In 2015, advocates of equity for pregnant workers were hopeful that the Supreme Court’s decision in Young v. United Parcel Service, Inc. would emphasize to employers the necessity of providing accommodations for pregnant workers. While the Supreme Court in Young held that employers must have a “compelling reason” to deny accommodations for pregnant workers, in more than two-thirds of post-Young cases courts continued to allow employers to deny pregnant workers accommodations under the PDA.[7] While Title VII, the PDA, ADA, FMLA, and various state and local laws have provided some protections, enormous gaps remained in necessary protections for workers affected by pregnancy or pregnancy-related conditions.
Power of the PWFA
The PWFA recognizes these gaps and provides guaranteed protections that supplement and bridge together those provided in Title VII, PDA, ADA, and FMLA. Under PWFA, workers who are affected by pregnancy, childbirth, or related medical conditions are no longer required to identify accommodations among “similar,” non-pregnant co-workers.[8] Instead, employers are required to grant reasonable accommodations that do not impose undue hardships on the employer.[9] Not only does the PWFA provide clear and definitive instruction for employers, but the PWFA is modeled on the ADA so that employers can easily adapt existing accommodation frameworks for pregnant employees. The administrative bodies responsible for administering and enforcing the PWFA have also proposed clear regulations and guidance that will help prevent results similar to those seen in the aftermath of Young.
The Picture Outside of Pregnancy
There is no doubt that the PWFA will provide many essential protections to workers who are pregnant or facing pregnancy-related conditions. This piece of legislation, however, will do more than provide temporary accommodations for individual employees.
First, the PWFA will be considered in history as a significant step towards achieving gender equity, both in and out of the workplace. By establishing a clear framework of support for pregnant workers, Congress has made an affirmative commitment to furthering the success of women. Congress made it clear to employers in any number of industries that familial goals can be as valuable as professional ones.
Second, the face of industry and commerce could be changed as women are given the power to get and stay ahead in business even after becoming pregnant. Not only will employers be able to attract and retain top talent by allowing female employees the support they need during and after pregnancy, but female employees will no longer be put at an immediate disadvantage by choosing to pursue familial goals. More than 80% of all working women will have at least one child during their life.[10] If these women are able to continue on their career trajectory, they will face fewer impediments to excellence and gain positions of power that may have otherwise been out of reach.
Third, providing accommodations due to pregnancy could help address the maternal health crisis that disproportionately affects mothers in minority groups. Representative Jahana Hayes (D-CT) noted during the PWFA Congressional debate that “women of color are more likely to hold inflexible and physically demanding jobs that can present specific challenges for pregnant workers,” making protected accommodations all the more necessary to help ensure the health of these women and their babies.[11] Protecting accommodations that could help prevent the complications related to pregnancy or childbirth could help reduce the overwhelming devastation presented by the current maternal health crisis.
Finally, bi-partisan legislation like PWFA can help re-instill a sense of public trust in the federal government. Fewer than two-in-ten Americans say that they trust the federal government to do what is right “most of the time.”[12] Given recent threats of government closure, historic ousting of Congressional leaders, and unprecedented antics by those who have been trusted with the protection of democracy – the public’s lack of faith in the government’s ability to effectuate positive chance is perhaps justifiably low. Adopting public policy that impacts such a key demographic of constituents—not only working women, but their families, friends, and businesses—in such a positive way, could be extraordinarily valuable. More bi-partisan legislation like this could be exactly what the country needs to restore its faith in the American political process.
Not only does this piece of legislation mark a historic step towards gender equality, but it also serves as a beacon of hope for the potential that our governing bodies still have for effectual political action.
[1] Regulations To Implement the Pregnant Workers Fairness Act, 88 Fed. Reg. 54714 (Aug. 11, 2023) (to be codified at 29 C.F.R. 1636), https://www.federalregister.gov/documents/2023/08/11/2023-17041/regulations-to-implement-the-pregnant-workers-fairness-act.
[2] Id.
[3] Id.
[4] Id.
[5] What is the Pregnant Workers Fairness Act?, Am. C.L. Union (June 27, 2023), https://www.aclu.org/documents/what-is-the-pregnant-workers-fairness-act.
[6] Id.
[7] Long Overdue – It is Time for the Federal Pregnant Workers Fairness Act, A Better Balance (May 2019), https://www.abetterbalance.org/long-overdue/;Young v. United States Parcel Service, Inc., 575 U.S. 206 (2015).
[8] Regulations To Implement the Pregnant Workers Fairness Act, supra note 1.
[9] Id.
[10] Katherine Schaeffer & Carolina Aragão, Key Facts About Moms in the U.S., Pew Rsch. Ctr. (May 9, 2023), https://www.pewresearch.org/short-reads/2023/05/09/facts-about-u-s-mothers/.
[11] Regulations To Implement the Pregnant Workers Fairness Act, supra note 1.
[12] Schaeffer & Aragão, supra note 10.