By Dan Gephart, August 14, 2023
The Equal Employment Opportunity Commission published its Notice of Proposed Rulemaking to implement the Pregnant Workers Fairness Act last week. Members of the public wishing to comment now have approximately 55 days to do so.
The Pregnant Workers Fairness Act (PWFA) has generally flown under the radar. If you haven’t yet paid attention, now might be the time. The EEOC is already accepting charges under PWFA, which requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
Does the act create a new EEO category? How do pregnancy protections under the PWFA differ from those under Title VII and the Americans with Disabilities Act? What are the common effective accommodations for pregnant employees? If you want answers to these questions, register now for FELTG Instructor and Attorney at Law Katherine Atkinson’s upcoming two-hour virtual training class Everything You Need to Know About the Pregnant Workers Fairness Act on Sept. 14.
In the meantime, here are a few points to remember:
- Do not tie an individual’s job performance or pay to their history of pregnancy. This seems kind of obvious now, right? But back in 2008, an air traffic controller was denied a pay increase for the previous performance year. How do we know her maternity was the reason? Well, her manager said the quiet part out loud. “Just keep doing what you’re doing and I’ll see what I can do for you next year,” the manager said, “unless you plan on taking maternity leave again. You don’t have something you need to tell me, do you?” Complainant v. Fox, EEOC App. No. 0120122370 (Oct. 24, 2014)
- It’s not your role to “protect” a pregnant employee. A desk officer was selected for a new position, which was contingent on her completing a two-week training session. Per the agency, which cited “team camaraderie,” the training needed to be completed during one two-week stretch. As it got closer to the training, the agency made the decision to not allow the employee to attend the training because her due date fell “within the final two weeks.” The employee requested accommodations that would allow her to attend the training. The agency admitted that the employee’s pregnancy played a role in its decision, and that supervisors were concerned about her driving and taking the stairs. Well-meaning discrimination is still illegal discrimination. Roxane C. v. DoD, EEOC App. No. 0120142863 (Jul. 19, 2016)
- Treat individuals who are pregnant (or have pregnancy-related conditions) the same as others on the basis of their ability or inability to work. A letter carrier on a one-year appointment had an excellent attendance record, until her high-risk pregnancy forced her to miss work due to pre-natal appointments and medical incapacitation. According to the letter carrier, one supervisor told her she should have an abortion unless she wanted to be fired.
The letter carrier was not reappointed after her term expired. The agency cited her attendance issues as a reason. She was the only transitional employee not reappointed because of attendance. Others were not reappointed because of poor work performance or instances of bad driving. Meanwhile, an employee who similarly experienced attendance difficulties because of a foot injury was reappointed. The EEOC ordered the agency to immediately reinstate the letter carrier, and provide her with appropriate back pay, benefits, and seniority. Robertson v. USPS, EEOC App. No. 01956011 (Jan. 5, 1998).
- Know all of the applicable laws. The cases detailed above were violations of Title VII, which protects employees from discrimination based on pregnancy, childbirth, and related medical conditions. The PWFA requires employers to provide reasonable accommodation, just as the Americans With Disabilities Act does for employees with disabilities. While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be. There is also the Family and Medical Leave Act, which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and the new PUMP Act, enforced by the Department of Labor, which broadens workplace protections for employees to express breast milk at work. [email protected]
