And Now a Word With … EEOC GC Karla Gilbride

By Dan Gephart, January 7, 2025

Equal Employment Opportunity Commission General Counsel Karla Gilbride doesn’t work directly in the Federal sector, but when it comes to reasonable accommodation, the areas of concern are strikingly similar.

“Like all employers, the Federal government is run by people who have many demands on their time,” Gilbride said. “As a result, ensuring that disabled employees are included on terms of equality and are properly accommodated can sometimes fall through the cracks.”

“Federal managers and supervisors, as well as human resource professionals, must ensure Federal agencies have clear and effective policies and processes in place to allow employees to make requests for reasonable accommodation and that those requests are considered in a timely and thoughtful manner. Our workers are truly our greatest asset. We can’t do the work of serving the public without first serving our employees by providing accessible and equitable workplaces for everyone.”

As 2024 wound down, we caught up with Gilbride to discuss reasonable accommodation trends, the Pregnant Workers Fairness Act, requests for medical documentation, and more.

DG: It’s been almost a year since you’ve been sworn in. What stands out most about your first year as General Counsel?

KG: I have been incredibly impressed with the commitment and professionalism I see from the career staff at the EEOC. People here are truly dedicated to the mission of the Commission to root out employment discrimination and have devoted themselves to doing that every day. I am grateful to have this opportunity to lead the agency’s litigation program and continue its legacy of preventing and combatting discrimination in our society.

DG: We are in the early days of the Pregnant Workers Fairness Act (PWFA) and there is still some confusion. Tell us how it differs from the ADA.

KG: In FY2024, EEOC filed five lawsuits under the new law, one that we have already settled, and resolved two charges through public conciliations. We are also working hard to get the message out about what this law does.

Importantly, it fills a gap in protections from other Federal anti-discrimination laws, including the ADA and the Pregnancy Discrimination Act (PDA) under Title VII. Under the ADA, a pregnant person must prove their condition rises to the level of a disability to qualify for a reasonable accommodation. The PDA is limited in that it prohibits pregnant workers from being treated worse than other workers similar in their ability or inability to work, which means that in order to bring a claim under that law, a pregnant worker would need to be able to point to a similarly simulated non-pregnant worker who was treated better.

The PWFA, on the other hand, requires certain protections for all pregnant workers, regardless of whether they would qualify as having a disability and regardless of how non-pregnant workers are treated. As an example, the law requires employers to provide reasonable accommodations for the known limitations of the pregnancy, childbirth, or related medical conditions, which includes lactation, of a qualified employee, in addition to prohibiting employers from taking adverse action against workers based on pregnancy, childbirth or related medical conditions.

In addition, the law prohibits an employer from requiring an employee to accept an accommodation other than a reasonable one that has been arrived at through the interactive process, and it also prohibits an employer from requiring an employee to take leave, whether paid or not, if another reasonable accommodation is available. The regulations under the PWFA also establish that some of the most commonsense accommodations, like providing additional restroom breaks, time to eat or drink, the ability to have water readily available, and to stand or sit as needed, will almost always be considered reasonable and should not require medical documentation.

DG: Some of the early cases seem to show employers failing to make some of those simple temporary accommodations. What else are you seeing so far in the early enforcement of PWFA?

KG: Requiring medical documentation, particularly the volume and detail that may be required under the ADA, is one of the most common violations we’re seeing. Many employers are not yet familiar with the PWFA and assume that when someone requests a pregnancy-related accommodation, it is the same as requesting one for a disability, but it is not.

The PWFA does not require an employer to ask for medical documentation, and the employer may only do so when it is reasonable under the circumstances (such as when it’s necessary to determine if an employee qualifies for an accommodation and what kind of accommodation). Another very common mistake, which we often see under the ADA as well, is requiring the employee to go on leave while the employer figures out whether the employee qualifies for an accommodation and if so, identifying the available accommodations. But as explained above, forcing an employee to take leave is expressly prohibited by the PWFA if another reasonable accommodation is available.

One other unique feature of the PWFA, which will be new to employers, is that a reasonable accommodation may be the temporary suspension of an essential job function. While this is not permissible under the ADA, it is explicitly allowed for under the PWFA, as long as the person can perform the essential function again in the near future and their inability to perform it temporarily can be accommodated without undue hardship to the employer.

DG: Technology is evolving quickly, but that doesn’t guarantee accessibility. What should Federal agencies consider when upgrading technology to ensure it is barrier-free?

KG: When considering technology upgrades, it’s critical for Federal agencies to seek out and consider feedback from all employees, including those with disabilities, to ensure that it is truly accessible. This is not only a good practice to ensure that everyone with a stake in the outcome is consulted, but it is also required by Section 508 of the Rehabilitation Act, which mandates equal access and usability for people with disabilities whenever a Federal agency procures or develops electronic and information technology.

Too often, employers do not proactively and thoroughly test whether a new software program they’re considering or other changes they’re making to the workplace will create unintended obstacles for employees with disabilities, but it’s far more expensive to try to correct accessibility problems on the back end after a new product has been purchased or a new system has been rolled out. As with many other issues, an ounce of prevention is worth a pound of cure, not to mention the message of inclusion it sends when the perspectives of disabled employees are affirmatively sought out and valued. Employers will serve their organizations and employees better by thinking about accessibility from the beginning and including it as a factor in RFPs and other procurement processes. There are also many organizations, like state vocational rehab agencies and the Job Accommodation Network (JAN), that employers, including Federal agencies, can consult for free about how to make new technology accessible to all workers.

DG: When it comes to ADA, what do employers/supervisors most often fail to understand?

KG: We see some of the same issues that I mentioned earlier with regard to the PWFA, particularly in the areas of requiring unnecessary medical documentation and immediately placing people on leave when they request another accommodation.

Only medical documentation which is absolutely necessary for an employer to determine if an employee is entitled to a reasonable accommodation, and what kind of accommodation, is permissible. What is necessary may be quite limited, depending on the disability.

In most cases, this will be only a brief note from a medical professional stating the employee’s disability, which may include identifying a major life activity that is substantially limited, if that is not already known or obvious; the functional limitations of the employee relevant to the requirements of their job; and possibly a specific requested accommodation.

We also see employers placing disabled folks on leave for long periods of time while they consider reasonable accommodation options but then extending indefinitely those leaves, which are usually unpaid. In many of those instances, a reasonable accommodation was readily apparent and available. One more common mistake we see employers make is requiring a doctor’s note clearing the employee to return “without restrictions” from a medical leave of absence even if the person can still do the job with some restrictions through a reasonable accommodation. Those sorts of one-size-fits-all, inflexible policies violate both the text and the spirit of the ADA, which is all about recognizing that not everyone will do the same job exactly the same way and that variations in the human condition in terms of ability should be embraced and accommodated, not dismissed as disqualifying, because they mean that more of us will be able to contribute our talents and perspectives in the workplace.

DG: If there was one thing you could tell Federal supervisors that you think would make the workplace more inclusive, what is it? 

KG: Making the workplace more inclusive is incumbent upon all employers, whether they are Federal or private. The same advice would apply to all employers, and that is to see people for who they are as individuals and what they can each bring to the table.

Every employee is unique and brings their own perspective, experience, and skills. Take advantage of those differences by welcoming and valuing them and figure out how they can be used to the benefit of the work you do. Spend the time to find out what each employee is good at and capitalize on that as much as possible, and if you recognize a barrier that may keep some qualified people from entering your workplace or prevent those who are already there from reaching their full potential, think creatively about what you can do to remove that barrier. [email protected]

Related training:

• EEOC Law Week, March 24-28
• 5 Things to Know About Reasonable Accommodation in 2025 (Pre-recorded training)
• Everything You Need to Know About the Pregnant Workers Fairness Act (Pre-recorded training)
• Reasonable Accommodation for Disabilities: What You Need to Know (Agency Direct training)