How the Pregnancy Workers Fairness Act of 2023 Compares to the Pregnancy Discrimination Act of 1978

Regulations related to pregnant workers were recently expanded by the Pregnancy Workers Fairness Act (PWFA), effective June 27, 2023. In this blog post, we will evaluate how the PWFA compares to its predecessor, the Pregnancy Discrimination Act of 1978 (PDA), to understand how regulations related to pregnant workers have changed with the installation of the PWFA.

The Pregnancy Discrimination Act of 1978:

The PDA, an amendment to Title VII of the Civil Rights Act of 1964 (Title VII), expanded on Title VII by expressly prohibiting discrimination on the basis of pregnancy, childbirth, or related medical conditions.

Applicability: The PDA, as an offshoot of Title VII, applies to employers with more than 15 employees.

Anti-discrimination Basis: The PDA specified that discrimination based on pregnancy, childbirth, or related medical conditions constitutes unlawful discrimination on the basis of sex under Title VII.

Employment Protections: More specifically, the PDA clarified that employers must treat pregnant employees on an equal basis with other employees concerning all aspects of employment, including hiring, promotions, and benefits under the standard Title VII framework. Generally speaking, this means that employers:

• • 1. Are prohibited from taking adverse employment actions against an employee on the basis of the employee’s pregnancy;
    2. Must protect against harassment of an employee on the basis of the employee’s pregnancy; and
    3. Cannot retaliate against an employee on the basis of the employee exercising a protected right regarding pregnancy, childbirth, or related medical conditions.

Leave and Disability: The PDA did not explicitly require employers to provide special work or leave accommodations for pregnant employees, employee who recently gave birth to a child, or to otherwise treat a pregnancy as a disability.

The Pregnancy Workers Fairness Act:

The PWFA can be interpreted as building upon the PDA. The PWFA increases the specificity of regulations related to pregnant worker protections and incorporates an analysis of unlawful employer conduct that is employed in matters arising under the Americans with Disabilities Act (ADA)—which was not previously utilized for the standard Title VII analysis.

Applicability: The PWFA applies to employers with more than 15 employees, similar to Title VII and the PDA.

Reasonable Accommodations: The PWFA requires employers to provide reasonable accommodations for “known limitations” related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. The PWFA also makes it unlawful to require an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.

This is unlike the PDA, which did not expressly require employers to afford reasonable accommodations. And, the PWFA goes further to encourage the implementation of reasonable accommodations.

To be sure, the PWFA states that “known limitations” are any “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability specified in [section 3 of the ADA].”

Interactive Process: The PWFA introduces the concept of an interactive process, requiring that the employer engage in a collaborative effort with the employee to formulate reasonable accommodations.

Protection Against Adverse Actions: The PDA’s protections for employees with known limitations against adverse employment actions on the basis of their known limitations is still maintained under the PWFA. However, the PWFA also prohibits employers from taking adverse actions against employees who request or use reasonable accommodations for known limitations.

Conclusion:

In sum, the PWFA incorporates the framework utilized by the ADA to require employers provide reasonable accommodations to employees with “known limitations” similar to how reasonable accommodations must be provided to employees with disabilities; and further formulate such accommodations through interactive collaboration with the subject employee. Failing to comply with the PWFA could expose an employer to substantial liability. Adapting operations, policies and standard forms with the aid of competent legal counsel to incorporate the PWFA regulations is critical for all businesses subject to the regulation.