New Pregnancy Discrimination Law – Will It Help?

The Pregnant Workers Fairness Act:

The Pregnant Workers Fairness Act (“PWFA”) is a new federal law that applies only to accommodations and will go into effect on June 27, 2023. PWFA requires covered employers to grant “reasonable accommodations” for “known limitations” (physical or mental conditions) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

Covered employers are private and public sector employers with a minimum of 15 employees and include Congress, Federal agencies, employment agencies, and labor organizations. Meanwhile, a reasonable accommodation is an adjustment or modification to a job or work environment that enables an employee to successfully perform a job, unless doing so would impose an undue hardship on the employer’s operations like a significant difficulty or expense. Examples of reasonable accommodations to qualified workers include granting flexible hours, closer parking, additional break time, the ability to sit or drink water and being excused from strenuous or hazardous activities.

Within the following year of the PWFA’s enactment, the Equal Employment Opportunity Commission (“EEOC”) will issue regulations to carry out the law. If there is a violation by an employer under the PWFA, the damages are the same as those under Title VII and include reinstatement, back and front pay, compensatory and punitive damages, and fees and costs. However, damages may not be awarded if the employer can demonstrate that it engaged in good faith efforts, in consultation with the employee with a known limitation, to identify and make a reasonable accommodation that would grant an employee with an equally effective opportunity and would not cause an undue hardship on the employer’s operations.

The PWFA prohibits covered employers from these acts:

• requiring a pregnant worker to take leave if another reasonable accommodation can be provided;
• interfering with any individual rights under the PWFA;
• requiring an employee to accept accommodations without a discussion between the worker and the employer about the accommodation;
• denying employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation; and
• retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding.

How is PWFA Different from PDA:

PWFA covers gaps that the Pregnancy Discrimination Act of 1978 (“PDA”). Under the PDA, it was mandated that for all employment-related purposes, workers affected by pregnancy were to be treated the same as others “similar in their ability or inability to work.” This meant that if an employer granted a benefit to others, it must extend the same benefit to pregnant workers. However, issues remained where pregnant workers with strenuous or dangerous jobs faced pushback and were denied accommodations as they sought to temporarily avoid those hazards. Courts would routinely approve such employer actions under the PDA because pregnant employees were not entitled to the same accommodations because they were not found “similar” to those favored groups in their “ability or inability to work.” Accordingly, the new PWFA requires employers to grant reasonable accommodations to pregnant people regardless of the employers’ treatment of similar workers if undue hardships are not imposed. The PWFA’s language ensures that the temporary inability to perform essential functions because of pregnancy, childbirth, or related medical conditions do not cause the worker to be deemed unqualified.

Comparing Litigation under LAD v. PWFA:

NJ Law Against Discrimination (“LAD”) includes pregnancy or breastfeeding as a protected class of persons. Employers accordingly cannot discriminate against pregnant employees and must provide reasonable accommodations.  In providing reasonable accommodations, the employer and employee must engage in an interactive process where in good faith, the employer meets with the employee and requests information on the employee’s condition and limitations. The employee must also act in good faith by effectively communicating and helping identify potential reasonable accommodations. However, requested accommodations may not be provided if employers will suffer undue hardship. Courts will consider undue hardship as affirmative defenses using factors like employer size, nature and cost of accommodation, and number and type of facilities.

For a pregnant employee to make a threshold case of unlawful pregnancy discrimination under LAD, she must establish that: (1) she was pregnant; (2) she was qualified for her job; (3) she was subjected to an adverse employment decision; and (4) a nexus between her pregnancy and the adverse employment decision exists. If pregnancy discrimination is established, the employer is now burdened in providing a legitimate, non-discriminatory reason for the adverse employment action. If the employer succeeds, then the burden shifts back to the employee to show that the non-discriminatory reason was a pretext or excuse for the underlying discriminatory motive. This means that the employer was motivated by discriminatory intent.  

In comparing the threat of litigation under LAD versus PWFA, PWFA seems to mirror certain processes of LAD. For instance, PWFA requires an interactive process between the employer and employee regarding requests for reasonable accommodations just like LAD. However, PWFA adds an additional hoop for employees wanting to file a charge. The employees must establish they are qualified individuals. A qualified individual is one: (1) with the inability to perform an essential function for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated. As the EEOC begins to issue regulations within a year of June 27, 2023, we will see which pregnancy discrimination law will produce a more successful and immediate resolution. We believe it unlikely that the federal law will prove more effective.

Following Effectiveness of the PWFA:

For employees, if filing a charge under the PWFA, then:

• You must be a qualified individual. Again, a qualified individual is one: (1) with the inability to perform an essential function for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.
• The charge must have happened on June 27, 2023, or later. The EEOC will then analyze charges regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under the PWFA, and where applicable, under the American with Disabilities Act (“ADA”) and/or Title VII.
• However, if the charge occurred before June 27th, then the pregnant worker has a right to be accommodated under another federal or state law such as the Title VII and/or ADA. The charge is a signed statement asserting that an employer, union, or labor organization engaged in employment discrimination and requests the EEOC to take remedial action. A charge of discrimination must be filed with the EEOC before a job discrimination lawsuit is filed against the employer. However, filing a charge also requires first submitting an online inquiring and then being interviewed by the EEOC.

For employers, in preparation of the PWFA’s effective date, the following actions should be  considered:

• Keeping a lookout for the EEOC’s issued regulations which will be issued within the following year of the PWFA’s enactment.
• Reviewing and updating accommodation policies in compliance with the PWFA and applicable state laws.
• Training supervisors and human resources department to: (1) understand PWFA requirements and (2) recognize potential requests for PWFA accommodations.
• Analyzing what accommodations could be provided to pregnant employees for known issues.

The Kates Nussman Ellis Farhi & Earle, LLP team will continue to monitor EEOC’s issuance of regulations on the PWFA as the year goes on. The team is here to further assist with any pending questions and concerns.

Viviana Torres is a rising third-year law student at Seton Hall University School of Law, where she works as an interpreter for the Center for Social Justice. Viviana is also treasurer of LALSA at Seton Hall Law