A HISTORY OF PREGNANCY-BASED LEGAL PROTECTIONS FOR THE WORKPLACE

The Pregnant Workers Fairness Act (PWFA) became law on June 27, 2023.[1] While many thought the protections it mandated were already in place, it is not a stretch to say the PWFA was over 100 years in the making. In 1908, the U.S. Supreme Court rejected a 14th Amendment challenge in Muller v. Oregon to a state law prohibiting women from working over 10 hours a day.[2] The court reasoned that “healthy mothers are essential to vigorous offspring,” and “the physical well-being of a woman” is “an object of public interest and care.”[3] The Oregon law and its various corollaries in other states were set aside by the enactment of the Civil Rights Act of 1964, which prohibited discrimination “because of sex.” The Supreme Court first recognized sex-based discrimination in 1971[4] when it struck down a corporate policy that prohibited hiring mothers of preschool-age children because they were “unreliable,” while still hiring their father counterparts. In 1974, the court struck down a school policy forcing female teachers to go on maternity leave at the beginning of the fifth month of pregnancy.[5]

The road to equal protection for working mothers continued along a nonlinear trajectory, as mothers faced discrimination in their employment benefits through exclusion from health insurance plans and seniority accrual due to pregnancy. In the 1974 case of Geduldig v. Aiello, the Supreme Court upheld a California workers’ compensation law (for nonwork injuries) that permitted the denial of insurance benefits for work loss resulting from a normal pregnancy.[6] The court reasoned that excluding pregnancy from the list of compensable disabilities was not sex-based discrimination and did not violate the 14th Amendment. The Supreme Court expanded this approach two years later in Gilbert v. General Electric Co. when it held that a private employer could explicitly exclude pregnancy from its disability benefits plan.[7] The court found that these types of plans did not violate Title VII of the Civil Rights Act, as these policies did not show discrimination against women but just excluded pregnancy – a “voluntary” condition “confined to women” – while still insuring risks such as vasectomies and circumcisions.[8]

In a swift reaction to the Gilbert ruling, Congress introduced and passed the 1978 Pregnancy Discrimination Act (PDA), an amendment to Title VII that defined “because of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.”[9] The PDA mandated that pregnant women “shall be treated the same for all employment-related purposes, including the receipt of benefits ... as other persons not so affected but similar in their ability or inability to work.”[10] The PDA represented a great victory in the fight to improve the trajectory of women’s employment rights. In the following years, the Supreme Court renounced Muller as women began seeking more physically demanding and higher-paying jobs.[11] In Johnson Controls, the employer’s “fetal protection policy” barred women from holding positions that required lead contact unless they had proof of sterility, as lead was known to cause birth defects. The company did not apply the policy to male employees.[12] The court rejected this policy as “it is no more appropriate for the courts than it is for individual employers to decide whether a woman’s reproductive role is more important to herself and her family than her economic role.”[13]

While progress continued, a new conflict arose regarding women who needed “light duty” style accommodations for strenuous job duties that conflicted with their pregnancy. Upon the passing of the Americans with Disabilities Act (ADA) in 1990, employers began regularly altering job duties to meet disabled workers’ needs but still denied accommodations to pregnant women as they were not “similar” in their “inability to work.” The Supreme Court addressed this issue in Young v. United Parcel Service, wherein a pregnant worker sued her employer for not accommodating her lifting restriction and for mandating that she stay home during her pregnancy without pay.[14] The evidence indicated that UPS accommodated nonpregnant employees, routinely approving lifting restrictions to employees post-injury but denying the requests if they related to pregnant women.[15] The Supreme Court rejected UPS’s accommodation position, determining that the rejection of pregnant worker accommodations must have “sufficiently strong” justification.[16]

Unfortunately, Young’s language did not stop pregnancy discrimination, nor did it necessarily improve access to justice for working mothers. Courts continue to permit employers to deny pregnancy accommodations in two-thirds of cases.[17]

The PWFA is a landmark federal civil rights law. It gives pregnant and postpartum workers the right to reasonable accommodations in the workplace, without discrimination or retaliation, for family planning, pregnancy, childbirth and related medical conditions, regardless of how the employers treat “similar” workers. The necessity for these protections – and for employers to understand and follow the PWFA – cannot be overstated. Over 80% of working women will have a child in their lifetime, and 20% of these women report they suffered discrimination in the workplace.[18] This article discusses current federal anti-discrimination laws available to pregnant workers and the various gaps in coverage. It also provides a guide to complying with the PWFA and recent case law interpreting it.

THE GAPS: HOW OTHER FEDERAL STATUTES DON’T EFFECTIVELY ACCOMMODATE WORKING MOTHERS

Pregnancy Discrimination Act

The PDA clarified that pregnancy discrimination was discrimination “on the basis of sex.”[19] While the PDA expanded protections granted to other protected classes under Title VII to pregnant people, it only required that employers treat pregnant workers no worse than other “similarly situated” employees. This remained a significant legal roadblock for pregnant employees. It was difficult for pregnant employees to identify other employees with similar nonpregnancy limitations who received employer-provided accommodations. Further, some courts refused to consider accommodations granted under the ADA as appropriate comparators when analyzing claims under the PDA.[20]

Americans with Disabilities Act

The ADA is a federal civil rights law designed to prohibit discrimination because of disability.[21] Originally, the ADA excluded pregnancy from the list of conditions considered a qualified disability; however, the 2008 amendments expanded the definition of disability to include pregnancy-related impairments arising from a disability. Hence, the application of the definition of a pregnancy-related disability limits the ADA’s scope to only certain circumstances.[22] Restrictions related to pregnancy, like other disabling conditions, must reach the threshold of substantially limiting a major life activity for protection under the ADA.[23] Protection has still been denied when courts find the pregnancy-related impairment is transitory and minor.[24]

While these parameters are consistent with how disabilities are evaluated under the ADA, this framework only provides reasonable accommodations to mothers who have pregnancy complications classified as abnormal, severe or high risk. Thus, over 90% of women who progress through their pregnancies without these complications struggle to attain protection under the ADA.[25]

Family and Medical Leave Act

In 1993, the Family and Medical Leave Act (FMLA) was enacted to provide unpaid leave for employees in circumstances related to the employee’s medical needs or the needs of a family member.[26] While not its primary focus, the FMLA mandates employers allow employees 12 weeks of unpaid leave[27] in a 12-month period for the birth or adoption of a child, foster care placement, bonding with a child, prenatal care or incapacity related to pregnancy.[28] Additionally, the spouse of a pregnant employee may use FMLA leave for the birth of their child and to care for the mother.

Unfortunately, the FMLA’s coverage fails to protect a sizable group of pregnant women. As a threshold matter, it only applies to employers with 50 or more employees within 75 miles and eligible employees who worked with the employer for at least 1,250 hours during the immediately preceding 12 months.[29] Further, parents working for the same company may only take a combined 12 weeks of leave under the FMLA. It is estimated that approximately 44% of workers are not eligible for FMLA leave because they work for small employers, do not work enough hours or have not worked for their employer for a long enough period.[30]

PREGNANT WORKERS FAIRNESS ACT: THE NEED-TO-KNOWS

The PWFA became effective June 27, 2023, and the final regulations took effect June 18, 2024.[31] The purpose of the PWFA is to expand upon the existing protections discussed above, as those were “insufficient to ensure that pregnant workers receive the accommodations they need.”[32] The following is a guide to assist employees and employers in navigating the PWFA.

The PWFA applies to public and private employers with 15 or more employees and unions.[33] It applies to a “qualified employee or applicant with a known limitation related to pregnancy, childbirth, or related medical conditions absent undue hardship.” A qualified employee is one who can perform the essential functions of their position with or without a reasonable accommodation or one who is unable to perform an essential function of the job, so long as it could be performed in the near future (determined on a case-by-case basis but defined as approximately 40 weeks). Known limitations are broadly defined as those communicated to employers and are inclusive of modest, minor or episodic impediments.[34]

The PWFA outlines five prohibited practices: 1) denial of reasonable accommodation, 2) forced accommodation, 3) failure to hire, 4) forced leave and 5) retaliation.[35]

Prohibited Practice No. 1: Denial of Reasonable Accommodation

Employers must now provide reasonable accommodations for known pregnancy, childbirth and related medical conditions, absent undue hardship to the employer. The following are examples of reasonable accommodations for pregnant mothers: light duty assignments and help with manual labor/lifting, temporary transfer to remote or less physical positions, flexible scheduling, modifying company policies regarding standing, changing dress codes to permit maternity clothes, transferring to remote work, leave for related medical appointments, additional time for restroom or snack breaks, allowing employees to carry and drink water in their work area and alternating between sitting and standing.[36]

The obligation to provide “reasonable accommodation” is subject to the “undue hardship” akin to that used under the ADA. Thus, the employer is not obligated to provide a reasonable accommodation that is significantly difficult or expensive considering the employer’s financial resources and manpower. The PWFA incorporates the ADA’s interactive process requirements and instructs that it will be used to determine appropriate reasonable accommodation. The interactive process can occur via telephone, email or in person, as long as the employer responds promptly and in good faith.

Prohibited Practice No. 2: Forced Accommodation

The PWFA prohibits employers from requiring employees to accept accommodations other than any reasonable accommodation arrived at through the interactive process.[37] This is meant to codify the prohibition from Johnson Controls and address the concern that employers may restrict what pregnant workers do in the mistaken belief that workers need accommodations they themselves did not request.

Prohibited Practice No. 3: Denial of Employment Opportunities

This prohibited practice covers claims traditionally classified as discriminatory, such as “failure to hire” or “failure to promote.” An employee’s or applicant’s known need for reasonable accommodation cannot serve as part of the covered entity’s decision regarding hiring or promotion unless the reasonable accommodation imposes an undue hardship on the covered entity.

Prohibited Practice No. 4: Forced Leave

This prohibition prevents employers from requiring an employee to take paid or unpaid leave if another reasonable accommodation can be provided. This in no way prohibits leave from serving as a reasonable accommodation if the employee requests it or if no other accommodation allows the employee to remain at work absent undue hardship.

Prohibited Practice No. 5: Taking Adverse Action

This prohibition provides that an employer cannot take adverse action in terms, conditions or privileges of employment against a qualified employee or applicant for using a reasonable accommodation. The PWFA also includes anti-retaliation and anti-coercion provisions for employees, former employees or applicants who exercise their rights under the PWFA. The PWFA also includes such protections for employees, former employees and applicants who try to assist others in exercising their rights under the PWFA.

The anti-retaliation provision protects workers from an employer’s conduct that is materially adverse or might dissuade a reasonable worker from making or supporting a charge of discrimination. The anti-coercion provision is modeled after the ADA’s interference section. These are broader than retaliation claims and include intimidating an applicant from requesting accommodation during the hiring process (because it will not result in being hired) or where the employer issues a policy or requirement that limits the employee’s right to request a reasonable accommodation of a known limitation.

RECENT LITIGATION AND CHALLENGES TO THE PWFA

The Equal Employment Opportunity Commission (EEOC) has filed several suits under the PWFA. Among these are the first settlements, two of which involved pregnant workers obtaining compensatory damages and backpay awards totaling $100,000 (for termination after the employer failed to accommodate recovery time following a stillbirth) and $50,000 (for termination following a request to attend monthly pregnancy appointments).[38] The settlements also included mandates regarding workplace policy changes, appointing EEO coordinators and training for employees.[39]

One of the initial lawsuits filed by the EEOC is currently pending in the Northern District of Oklahoma. In EEOC v. Urologic Specialists of Oklahoma, Inc., a pregnant medical assistant allegedly could not “sit, take breaks, or work part-time as her physician said was needed to protect her health and safety during the final trimester of her high-risk pregnancy” and was forced to take unpaid leave.[40] It further alleges that she refused to return when her employer would not guarantee she would receive breaks to express breast milk,[41] which also premises a violation under the Providing Urgent Maternal Protections for Nursing Mothers Act.[42]

Most challenges to the PWFA attack the EEOC’s final rule, which requires employers to grant leave to employees requesting leave for elective abortions. Texas successfully challenged the EEOC’s ability to pursue claims against the state, as it is an immune state actor that would face substantial costs in defending these lawsuits. Federal courts in Louisiana and North Dakota have granted preliminary injunctions enjoining enforcement of these regulations due to concerns that they conflict with existing state laws on abortion, infringing upon state sovereignty, free speech and religious liberty.[43] Seventeen states have mounted a challenge against this final rule on behalf of state employers in the 8th Circuit Court of Appeals, contending that the EEOC exceeded its authority under the PWFA. [44]

IMPORTANT TAKEAWAYS

Regardless of the legal battles surrounding the PWFA, it remains imperative for employees to communicate with their employers about the needs that arise from pregnancy and the birth of a child and how employer policies may create challenges (many of which can be unintended). Employers must engage in the interactive process with pregnant employees to determine reasonable accommodations. Employers should review and revise existing accommodation processes where necessary, establish processes to follow when employees request accommodation due to pregnancy-related limitations, maintain accurate documentation regarding these requests and train their staff accordingly. Working together, employers and employees can avoid costly, time-consuming lawsuits and ensure that women can pursue economic prosperity while caring for their health and the health of their growing families.

---

ABOUT THE AUTHORS

Eric Di Giacomo currently serves as the acting chief of the Oklahoma Attorney General’s Office of Civil Rights Enforcement, where he focuses his practice on education and enforcement of civil rights laws among employers, housing providers and public accommodations. He received his J.D. from the TU College of Law.

 

 

 

 

Lacey Pogue is the incoming assistant attorney general in the Oklahoma Attorney General’s Office of Civil Rights Enforcement. She received her J.D. from the TU College of Law, where she participated in the Reproductive Justice Practicum and presented before the O’Neill Institute for National and Global Health Law at Georgetown Law.

 

 

 

 

---

ENDNOTES

[1] 42 U.S.C. §2000gg.

[2] Muller v. Oregon, 208 U.S. 412, 423 (1908).

[3] Id. at 421.

[4] See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); see also Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973); Stanley v. Illinois, 405 U.S. 645 (1972).

[5] Cleveland Board of Education v. LaFleur, 414 U.S. 642 (1974).

[6] Geduldig v. Aiello, 417 U.S. 484, 494-97 (1974).

[7] Gilbert v. Gen. Elec. Co., 429 U.S. 125 (1976).

[8] Id. at 136, 152.

[9] Pregnancy Discrimination Act of 1978, Pub. L. 95-555, 92 Stat. 2076.

[10] Id.

[11] United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991).

[12] Id. at 191-2.

[13] Id. at 211.

[14] Young v. United Parcel Serv., 575 U.S. 206, 211 (2015).

[15] Id. at 212.

[16] Id. at 229.

[17] Dina Bakst, Elizabeth Gedmark and Sarah Brafman, “Long Overdue – It Is Time for the Federal Workers Fairness Act,” A Better Balance (2019), available at http://bit.ly/3ZVffz7.

[18] Ben Gitis, Emerson Sprick and Adrienne Schweer, “BPC – Morning Consult: 1 in 5 Moms Experience Pregnancy Discrimination in the Workplace,” Bipartisan Policy Center (2022), available at http://bit.ly/4no5kwd; Katherine Schaeffer and Carolina Aragão, “Key facts about moms in the U.S.,” Pew Research Center (2023), available at http://bit.ly/44tIWIS.

[19] 29 C.F.R. §1604, App.

[20] Young, 575 U.S. 206 at 218.

[21] Pub. L. No. 101-336, 104 Stat. 327 (1990).

[22] Gabriel v. City of Chicago, 9 F.Supp.2d 974 (1998). This case is just one illustration of pregnancy not being considered a disability per se. Subsequent EEOC guidance further notes this, stating, “Conditions, such as pregnancy, that are not the result of physiological disorder are ... not impairments.” 29 C.F.R. §§1630, App., 1630.2(h).

[23] 29 C.F.R. §§1630, App.; 1630.2(h).

[24] See 42 U.S.C. §12102(3)(B); 29 C.F.R. §1630.15(f). The ADA defines “transitory” as an impairment with an actual or expected duration of up to six months. Minor is defined on a case-by-case basis. Courts consider factors such as severity of the impairment, symptoms, required treatment, associated risks/complications, need for surgical intervention and post-operative care among others.

[25] Obstetrics and Gynecology: High-Risk Pregnancy, UCSF Health, available at https://bit.ly/4lvU9j1 (last visited April 7, 2025).

[26] 29 U.S.C.§2611.

[27] While the FMLA only guarantees entitlement to unpaid leave, experiences may vary regarding paid leave, specifically if an employer provides short-term disability benefits that may provide pay to an employee during a concurrent FMLA leave related to pregnancy and/or childbirth.

[28] 29 U.S.C. §2612.

[29] Id.

[30] Scott Brown, Jane Herr, et. al., Employee and Worksite Perspectives of the Family and Medical Leave Act: Supplemental Results from the 2018 Surveys, Abt Associates, (July 2020); “Key Facts: The Family and Medical Leave Act,” National Partnership for Women and Families (February 2025), available at https://bit.ly/44bsez9.

[31] 29 C.F.R. §1636 (2024).

[32] H.R. Rep. No. 117-27, at 12 (2021).

[33] 42 U.S.C. §2000gg(1)(B)(i).

[34] EEOC, “Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA),” (2024), available at https://bit.ly/4lsk2kt (last accessed April 7, 2025); 29 C.F.R. §1636 (2024).

[35] 42 U.S.C. §2000gg-1.

[36] See 29 C.F.R. §1636 (2024). EEOC interpretative guidance acknowledges that these proposed accommodations marked in italics will “in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship.” Id. The EEOC identifies that their intent behind identifying these proposed accommodations is to help expedite employees’ requests for simple accommodations and therefore reduce litigation. Id.

[37] 42 U.S.C. §2000gg-1(2).

[38] “Lago Mar Resort and Beach Club to Pay $100,000 in EEOC Pregnant Workers Fairness Act Suit,” EEOC, Oct. 11, 2024, available at https://bit.ly/44xjPFb; “ABC Pest Control, Inc. Conciliates Pregnant Workers Fairness Act Charge,” EEOC, Sept. 11, 2024, available at https://bit.ly/4lcOzCC.

[39] Id.

[40] “EEOC Sues Two Employers Under Pregnant Workers Fairness Act,” EEOC, Sept. 26, 2024, available at http://bit.ly/4lagJOE.

[41] Id.; see also Complaint, EEOC v. Urologic Specialists of Oklahoma, Inc., No. 24-cv-00452-JFJ (N.D. Okla. Sept. 25, 2024).

[42] The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was enacted in 2022, providing protections for lactating mothers in the workplace. The PUMP Act expands upon existing guidelines from a 2010 amendment to the FLSA, expanding the protections and available remedies for women who need to take breaks to express breast milk. The PUMP Act mandates that employers grant this break time for up to one year following the birth of a child. It does not require that compensation be granted during these breaks, unless the employee is not “completely relieved from duty during the entirety of such break.” Again, this statute is narrow in addressing the needs of mothers, only addressing breaks to express breast milk. This act, being passed in the same year as the PWFA, works in tandem with it to expand protections for working women.

[43] Louisiana v. EEOC, 705 F.Supp.3d 643, 661 (W.D. La. 2024).

[44] State of Tennessee v. EEOC, No. 24-2249 (8th Cir.) (Feb. 20, 2025).