In December 2022, President Biden signed the PregnancyWorkers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”) into law. These laws were part of the budget bill passed at the end of 2022. PWFA and the PUMP Act help to close certainnarrow loopholes in the existing laws barring discrimination against pregnant women, specifically the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). The latter statute expands the definition of “becauseof sex” or “on the basis of sex” under Title VII of the Civil Rights Act of 1964, 2000e et seq., by including pregnancy, childbirth, and related medical conditions into the definition. 42U.S.C. § 2000e(k). Further, the PDA states “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work….” Id.
In the past, a pregnant woman was entitled to accommodations under the ADA only where she could show she qualified as having a “disability” under the ADA. Many courts had held thatpregnancy, alone, did not qualify as a disability. For example, in Wiseman v. Wal-Mart Stores,Inc., No. 08-1244, 2009 WL 10706901 (D. Kan. July 23, 2009), the plaintiff was fired for carrying a water bottle while working on the floor at Walmart. She provided doctor’s notes to her employermaking this point, but Walmart refused to accommodate her. walmart fired the plaintiff for insubordination after she continued carrying the water bottle on the store floor.
The Court sided with Walmart because the PregnancyDiscrimination Act (which makes it unlawful to discriminate on the basis of pregnancy, as a form of sex discrimination), does not require that reasonable accommodations be provided to pregnant workers. 2009 WL 10706901, at *4. “Pregnancy… is not a disability within the meaning of the ADA,” the Court stated. Id. “Plaintiff would not be entitled to reasonable accommodations for a disability under the ADA if she is not disabled as defined by the ADA.” Id.
Accommodations under PDA may be available under PDA’s “equal treatment” provision. 42 U.S.C. §2000e(k). In Young v. United ParcelService, Inc., the Supreme Court clarified that the plaintiff in aPDA action can create a genuine issue of material fact as to whether an employer's policies impose a significant burden on pregnant employees by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. 575 U.S. 206 (2005). Stated another way, the PDA only requires accommodationsto pregnant workers when a large percentage of nonpregnant workers are accommodated for restrictions.
The PWFA, which takes effect on June 29, 2023, directlyaddresses these issues. PWFA requiresemployers to make reasonable accommodations to pregnant employees – without regard to whether they can establish a “disability” under the ADA. PWFA, H.R. 1065, § 2(1). The limitation on this duty to provide reasonable accommodations is that an employer need not make accommodations that would impose an “undue hardship” on the employer. Id. Thus, a pregnant employee may obtain accommodations based upon her ownsituation and not by reference to accommodations provided to a large majority of nonpregnant employees.
PWFA expressly requires employers to engage in an interactiveprocess with pregnant employees who seek accommodations; and employers cannot simply impose an accommodation on pregnant employees without engaging in a good-faith dialogue over the issue. PWFA, H.R.1065, § 2(2). Reasonable accommodationsfor pregnant employees may include additional bathroom or water breaks, rearrangement of work tasks, relief from heavy lifting or dangerous tasks, and changes to work schedules.
Significantly, PWFA prohibits employers from requiring apregnant employee “to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the
pregnancy, childbirth, or related medical conditions of a qualified employee.” PWFA, H.R. 1065, § 2(4). This prohibition addresses a very commonsituation where employers place pregnant employees on unpaid leave until after they have delivered their child, often long after an employee can afford to be out of work. Instead, employers now musthave real discussion with pregnant employees about temporary accommodations.
PWFA also prohibits retaliation against individuals whoexercise rights under the Act. PWFA,H.R. 1065, § 2(5). Aggrieved employeesmay pursue their rights just as in a Title VII or ADA action, where there is a fifteen employee minimum for coverage, and individuals must first exhaust remedies with the U.S. Equal Employment Opportunity Commission before filing in court. PWFA, H.R. 1065, § 3(a). Employees must therefore file a charge withEEOC within 300 days of any alleged discriminatory or retaliatory practice to
protect their rights.
Undue hardship is an affirmative defense to liability in an ADA failure-to-accommodate case. Exby-Stolleyv. Bd. of Cnty. Comm’rs, 979 F.3d 784, 822 (10th Cir. 2020). In determining whether an accommodation wouldimpose an undue hardship on a covered entity, factors to be considered include—(i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed
at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C. § 12111(10)(B).