EEOC Pregnancy Bias Rules’ Scope Primed to Shrink Under Trump

Employers anticipate narrowed pregnancy bias rules from the EEOC as the agency under Republican leadership reconsiders health conditions eligible for workplace accommodations following a key court decision.

A Louisiana federal judge recently vacated abortion’s inclusion in the Equal Employment Opportunity Commission’s Pregnant Workers Fairness Act rules, and ordered the agency to revise the regulations accordingly.

Acting EEOC Chair Andrea Lucas has opposed the rules’ broader definition of a “related medical condition” tied to pregnancy, signaling their reworking could go well beyond abortion. The EEOC could vote to eliminate accommodation requirements for areas like fertility treatment or menstruation complications, and change employer compliance standards, employee and management-side lawyers say.

“I would anticipate, once there is a quorum, that there’s a refining of what those definitions are. I anticipate that they’re going to be a little more employer-friendly definitions, a little more narrow in scope,” said Emily Litzinger, a partner at management-side firm Fisher Phillips. “The interpretation is going to be closer to what the explicit statutory language is.”

Lucas voted against the final PWFA rules in 2024 and said after taking the EEOC’s helm she intends for the commission to reconsider parts that are “unsupported by the law.”

Narrower Definitions

Lucas’s previous vote statement on the PWFA rules doesn’t mention abortion, but argues they overstep the statute by reaching “virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system.”

An EEOC spokesperson declined to comment on the rules’ future, referring Bloomberg Law to Lucas’s past statements.

Besides abortion, the PWFA rules list contraception, fertility treatments, lactation, and postpartum depression as examples of eligible conditions for accommodations, while specifying the list is non-exhaustive.

The PWFA statute called for the EEOC’s rules to include examples of reasonable accommodations addressing known limitations arising from “pregnancy, childbirth, or related medical conditions,” though it doesn’t detail specific conditions covered.

The PWFA meant to cover a range of conditions that prove a temporary workplace limitation even as part of a healthy pregnancy, such as morning sickness, Ogletree Deakins attorney Christine Bestor Townsend said. Such conditions don’t fall under predecessor laws like the Americans with Disabilities Act or the Pregnancy Discrimination Act.

“The stated goal of the PWFA to keep pregnant women and postpartum women employed, accommodated, being able to work and earn an income, has not changed and will not change,” Townsend said. “Acting Chair Lucas has no desire to dismantle what she sees as the key part of the PWFA.”

The rules’ detailed examples help employees request accommodations from their managers, according to Liz Morris, a co-director of the Center for WorkLife Law at the University of California, San Francisco.

Redefining the rules, though, could create a more uncertain compliance system for employers trying to decide when to grant accommodations, labor attorneys said.

Though the underlying statute won’t change, “it’ll be interesting to see how the change in the makeup of the EEOC will alter the scope and tone and aggressiveness of the enforcement of it, and how we’re interpreting the statutory language,” said Litzinger.

‘Casting Doubt’

In her vote statement Lucas said the “expansive definition” in the rules creates a situation where pregnancy “actually means the obligation to accommodate any medical condition related to” past or potential intended pregnancy, including “infertility, fertility treatment, or use of contraception.”

The vast universe of potential accommodations could force employers to mount more undue hardship defenses to keep the law’s scope in check, she said.

Morris said she read Lucas’s statement as “casting doubt on the inclusion of infertility,” as well as menstruation, hormone issues, and menopause in the rules.

One of the Louisiana case’s plaintiffs challenged fertility treatment’s inclusion in the rules, but Judge David C. Joseph’s May 21 ruling did not address it.

Regardless of the scope of potential rule changes, the act of reopening the discussion at the EEOC creates additional hurdles, said Katie Sandson, senior counsel for education and workplace justice at the National Women’s Law Center.

“Disrupting this rule that has been in place, and people are already using, is just going to contribute to some uncertainty and confusion that will impact workers during that time,” she said.

Apart from infertility treatments, which have been the source of some accommodation requests, Townsend said most PWFA accommodations are directly related to pregnancy or postpartum conditions and are unlikely to be affected by revising the regulations. Lucas was a strong supporter of the initial statute and only objected to the EEOC’s “expansive” interpretation, she noted.

Pregnancy Bias Uptick

Within the first year of the PWFA regulations taking effect, there’s been an increase in pregnancy accommodation charges, said Tracy Billows, a partner at Seyfarth Shaw LLP.

Many PWFA suits, including those filed by the EEOC, deal with well-known accommodations for pregnant workers, such as time off for doctor’s appointments or a temporary change in work functions. But some allege employers failed to accommodate for pregnancy-related aspects of conditions the EEOC rules lay out.

Billows said there’s been an uptick, for instance, in accommodation requests for postpartum depression, adding workers feel “more comfortable” making those requests “in light of the current final rule.”

Even under the current rules, though, some employers have struggled with the PWFA’s lower thresholds compared to the ADA. Under the PWFA, employees only have to demonstrate a “known limitation” inhibiting their ability to work rather than a disability, and there are restrictions on medical documentation an employer can request.

Employees can also qualify for accommodations even if they’re temporarily unable to do “essential functions” of their job, another key difference.

“I don’t know that everyone recognized the differences” between the two laws, Jackson Lewis PC attorney Tania Mistretta said, adding that pregnant or recently pregnant employees may be able to pursue traditional disability accommodations under the ADA.

“A number of the conditions listed in the EEOC’s final rule could be potential disabilities in and of themselves if they were not related to pregnancy or childbirth,” Mistretta said.