Early EEOC Pregnant Worker Bias Suits Signal Enforcement Goals

The EEOC’s first-ever Pregnant Workers Fairness Act lawsuits filed as the 2024 fiscal year drew to a close indicate the agency’s seriousness about enforcement, and reveal changes to the employee accommodation process for companies.

The landmark anti-bias law went into effect in June 2023, followed by the US Equal Employment Opportunity Commission’s regulations under the PWFA around a year later. The law and accompanying rules require employers to make reasonable accommodations for pregnant workers or those with “related” medical conditions.

Workers have already brought their own litigation under the PWFA and some early cases have been resolved behind the scenes. But the first five suits the commission has brought serve as warnings for employers that must adapt to the first federal discrimination law enacted to protect pregnant workers in more than four decades.

“The EEOC bringing these cases is really sending a clear message about what is required by the Pregnant Workers Fairness Act and what actions employers should avoid,” said Gaylynn Burroughs, vice president for education and workplace justice at the National Women’s Law Center.

The agency’s inclusion of choosing to have or not have an abortion as a related medical condition under the PWFA became a target for several lawsuits by Republican-led states and Catholic organizations in ongoing cases.

But the EEOC complaints did not involve breaches of the law over abortion-related accommodations. Instead the lawsuits dealt with the core of the law in cases about workers allegedly being denied time off or modifications to their jobs while pregnant.

The cases brought by the EEOC this year are “really about common-sense accommodations,” Burroughs said.

Employers Should Be ‘Careful’

The EEOC’s action indicates the agency has a “broad interpretation” of the law, said Emily Litzinger, a partner at Fisher Phillips.

“Until we see a ruling from the court,” Litzinger said her advice to employers is “to be careful” and “really look at these situations.”

The PWFA differs from other related laws, like the Americans with Disabilities Act, that have formed the framework for dealing with pregnant employees.

Both laws require reasonable accommodations absent “undue hardship” on the employer, but the PWFA limits the need for medical documentation to grant related accommodations.

“That has been a challenge for a lot of my clients, just wrapping their head around this new aspect,” Litzinger said.

The EEOC filed its first lawsuit under the PWFA Sept. 10 in Kentucky federal district court against Wabash National Corp., a trucking equipment company. The agency said Wabash requested a pregnant worker have a physician complete an ADA questionnaire in response to her request to switch positions with a coworker to avoid having to work while lying on her stomach, or to receive light duty assignments.

The company violated the PWFA by placing the worker on unpaid leave and requesting the ADA questionnaire be completed, the EEOC said.

A spokesperson for Wabash said the company is committed to taking care of pregnant employees and complying with the law and “will respond to these claims in due course.”

The final PWFA rules state that an employer is not required to seek supporting documentation from an employee who requests an accommodation, and is only permitted to do so if it is “reasonable.” Accommodations that stem from an “obvious” need should not require such paperwork, the commission said.

That differs from the ADA, which allows employers more leeway to require medical documentation for an accommodation.

Another part of complying with the PWFA that differs from the ADA is that employers are more likely to field short-term accommodation requests, including those around pregnancy or its aftermath, including lactation.

“So for employers who are evaluating a request of something that is temporary, it may be a different analysis than under ADA than they are used to where a request might be for an ongoing or indefinite period of time,” said Madeleine Gyory, an associate director and acting assistant professor at NYU Law.

Unlike the ADA, the PWFA regulations permit employees to qualify for potential reasonable accommodations, even if they must temporarily stop performing some essential job functions. This is workable as long as an employee will be able to perform these duties “in the near future,” defined by the EEOC as generally 40 weeks.

“If it’s only for a temporary time period,” like an employee asking for an accommodation for a couple of weeks or for the remainder of their pregnancy, “is that truly an undue hardship? Probably not. That’s where the challenge is right now with employers,” Litzinger said.

Although the laws differ, they also “operate together,” and PWFA aimed to “fill in the gaps left by existing protections,” Burroughs said.

In most of the PWFA cases filed by the EEOC, violations of the ADA or Title VII of the 1964 Civil Rights Act are also alleged.

‘Parameters to Learn From’

The first set of lawsuits under the PWFA brought by the agency will provide “parameters to learn from,” Litzinger said.

Some center on companies that put workers on unpaid leave or failed to rehire them after they sought to return to work.

In a lawsuit filed at the end of September in Maryland federal district court, the EEOC alleged Kurt Bluemel Inc., a commercial nursery in Baltimore, refused to engage in an interactive process to accommodate a pregnant worker seeking parental leave. The company told her there was no work available when she attempted to return, even though Kurt Bluemel had hired new non-pregnant employees before and after.

Putting workers on unpaid leave for pregnancy-related requests is “expressly prohibited” by the PWFA and is one of the key reasons why the law was necessary, Gyory said.

In another lawsuit filed in Oklahoma federal district court, the EEOC said a medical practice failed to accommodate a medical assistant’s request to sit, take breaks, or work part-time, as her physician said was necessary to protect her health during a high-risk pregnancy. The worker was forced to take unpaid leave, and later fired after the employer refused give her lactation breaks.

Sitting and taking additional restroom or eating and drinking breaks are among the reasonable accommodations the EEOC’s final rule identified as “simple modifications” that “in virtually all cases” will be found to not impose undue hardship.

The PWFA, along with the PUMP for Nursing Mothers Act, which were both enacted in late 2022, established new guidelines for employers to provide lactation accommodations for workers. The EEOC’s final PWFA rules require employers to create a private space for lactation, other than a bathroom, that is in reasonable proximity to the employee’s usual work area.

The five EEOC suits also focus on workers in physically demanding jobs, including in manufacturing and hospitality.

The EEOC appears to be “spotlighting workers who are most impacted” by denied accommodations, which are “low wage workers whose jobs involve some kind of physical labor” and workers who have “less freedom and autonomy over their schedules,” Gyory said.

Three of the five cases were also filed in Alabama, Oklahoma, and Florida, which are among the around 20 states that do not have their own pregnancy accommodation protections in place.

Employers in states without similar laws in place before are going to be less familiar with the requirements, and the cases may be serving as a signal that there is a new federal law that now applies to all employers, Gyory said.

“I think that people are realizing it exists and they have rights and responsibilities under the law,” Burroughs said.