On December 29, 2022, President Biden signed the Pregnant Employees Equity Act (PWFA) into legislation. This bipartisan legislation gives lengthy overdue safety for individuals who work whereas pregnant and want office lodging as a result of bodily and psychological results of being pregnant. Though there was some safety towards being pregnant discrimination in federal legislation since 1978, this invoice fills a spot within the legislation that had left many employees with out crucial, although typically minor and costless, lodging. Beneath the brand new legislation, pregnant employees are entitled to cheap lodging necessitated by being pregnant, childbirth, or associated medical situations, so long as the lodging don’t impose an undue hardship on the employer.
Within the PWFA, Congress directed the Equal Employment Alternative Fee (EEOC) to cross implementing laws. The EEOC has simply launched the ultimate model of new regulations, which is able to grow to be a part of 29 C.F.R. half 1636, and which embody a prolonged Interpretive Steerage as an appendix to clarify the Fee’s interpretation of the problems. On this column, I’ll clarify the important thing options of those new laws and the methods wherein the brand new guidelines will higher deal with the wants of pregnant employees.
How the PWFA Modified Being pregnant Discrimination Regulation
On the federal degree, being pregnant discrimination in employment is ruled by Title VII, as amended by the Being pregnant Discrimination Act of 1978 (PDA), and, as of 2022, by the Pregnant Employees Equity Act (PWFA).
Beneath the PDA, pregnant employees had two fundamental protections. First, the PDA amended Title VII to supply that discrimination on the idea of “being pregnant, childbirth, or associated medical situations” is an illegal employment apply. Which means any coverage or employment determination that deliberately discriminates towards pregnant employees or has a disparate impression on them will be challenged in the identical method as discrimination on the idea of every other protected attribute similar to intercourse or race. Kind of, this clause implies that employers can not make selections based mostly on an worker’s pregnant standing. The primary clause was designed to place an finish to widespread employment insurance policies and practices that handled all pregnant ladies as an undifferentiated group and that relied on stereotypes about their capability to work no matter particular person capability. It additionally explicitly prohibited employment selections born of animosity or hostility to pregnant employees, even when stereotypes weren’t in play.
Second, the PDA offered that girls affected by being pregnant, childbirth, or associated medical situations “shall be handled the identical handled the identical for all employment-related functions . . . as different individuals not so affected however comparable of their capability or incapability to work.” Though this provision was the topic of a lot litigation, its normal which means is that pregnant workers are entitled to the identical lodging as these with comparable non permanent disabilities. But when an employer doesn’t present lodging to anybody, it doesn’t have any obligation to accommodate the wants of pregnant employees. That is true even when the lodging {that a} pregnant employee requires are minor and costless. In different phrases, a pregnant employee had a proper to not be discriminated towards within the provision of lodging vis-à-vis different employees however didn’t have an unbiased proper to office lodging that may allow her to proceed working. The shortage of an absolute proper to lodging was devastating for a lot of pregnant employees, a lot of whom misplaced their jobs, took pay cuts, or suffered bodily hurt whereas pregnant, despite the fact that their situation might have simply been accommodated.
The brand new law responded on to this hole within the PDA. (A extra detailed dialogue of the connection between the PDA and the PWFA will be discovered here.) When first launched, it promised to “eradicate discrimination and promote ladies’s well being and financial safety by making certain cheap office lodging for employees whose capability to carry out the capabilities of a job are restricted by being pregnant, childbirth, or a associated medical situation.” The PWFA requires employers who’re in any other case lined by Title VII to supply cheap lodging necessitated by being pregnant, childbirth, or associated medical situations until doing so would impose an undue hardship on the employer. The PWFA is modeled after the Individuals with Disabilities Act, which grants eligible workers an affirmative proper of lodging no matter how others are handled by the employer.
The brand new laws spell out in additional element the rights protected by the PWFA—and the commensurate obligations of employers. The rest of this column will spotlight the fundamentals.
Protection. The PWFA applies to employers, unions, or employment businesses with at the least fifteen workers, in addition to to the federal authorities. Staff who work for lined employers are protected, no matter how lengthy they’ve labored there or whether or not they work full- or part-time. (The Household and Medical Depart Act, in distinction, solely applies to employers with at the least 50 workers and to workers who’ve labored at the least 1,250 hours within the twelve months earlier than go away begins.)
Eligibility. With the intention to be entitled to a office lodging, an worker should have a recognized limitation that’s “associated to, affected by, or arising out of” being pregnant, childbirth, or associated medical situations. There are a number of elements crucial to grasp this proper.
A limitation is a bodily or psychological situation that interferes indirectly with job efficiency. It may be “modest, minor, and/or episodic,” can relate to the necessity to preserve the worker’s or fetus’s well being throughout being pregnant, or can contain in search of well being care associated to the being pregnant. The laws make clear that the worker’s situation doesn’t must come up solely or initially or considerably from being pregnant, childbirth, or a associated medical situation with the intention to benefit a office lodging. As well as, the situation doesn’t have to fulfill the definition of a “incapacity” underneath the ADA, although if it does the employee can be entitled to protections underneath each legal guidelines.
A limitation is recognized if the worker has communicated the limitation to the employer. In different phrases, the employer has no obligation to anticipate the employee’s want for lodging or to trace whether or not employees are pregnant. Just like the ADA, the PWFA envisions an interactive course of wherein the affected worker will disclose a limitation and request an lodging after which talk about with the employer what kind of lodging could be out there.
The phrase “being pregnant, childbirth, or associated medical situations” comes from the PDA, and the laws presume Congress meant it to have the identical which means underneath each statutes. The PDA amended Title VII so as to add that its ban on intercourse discrimination in employment additionally included discrimination on the idea of “being pregnant, childbirth, or associated medical situations.” This was a response to a Supreme Courtroom case, Basic Electrical v. Gilbert (1976), which had held that being pregnant discrimination was not a type of intercourse discrimination. Since enactment of the PDA, there was scattered litigation concerning the which means of “being pregnant, childbirth, or associated medical situations.” The Supreme Courtroom held in International Union, UAW v. Johnson Controls (1987) that the PDA prohibits discrimination on the idea of the capability to grow to be pregnant, which meant that an employer’s coverage of barring fertile ladies from sure jobs with lead publicity was illegal. However the Supreme Courtroom has by no means thought-about different questions, similar to whether or not contraception, infertility remedy, and lactation represent “associated medical situations” for functions of being pregnant discrimination legislation. Decrease courts have cut up on the dealing with of those points (a few of that are mentioned here).
The PWFA laws specify that “being pregnant” and “childbirth” embody, however are usually not restricted to, “present being pregnant, previous being pregnant; potential or meant being pregnant (which might embody infertility, fertility remedy, and using contraception); labor; and childbirth (together with vaginal and cesarean supply). And the phrase “associated medical situations” consists of, however shouldn’t be restricted to, a laundry listing of being pregnant issues, lactation, and termination of being pregnant by way of miscarriage, stillbirth, or abortion. The precise point out of abortion within the proposed laws spurred 1000’s of feedback, however the Fee retained it within the remaining laws. The Fee’s place is that employers could be obligated to supply an affordable lodging for an worker who seeks abortion care similar to time without work for a medical appointment or restoration. The attorneys normal of a number of states have filed a lawsuit difficult this provision, an effort that ought to not meet with success within the courts however would possibly, given forum-shopping for Trump-nominated anti-abortion judges and an more and more ideological federal judiciary.
An worker should even be “certified” for the place for which they search an lodging, which will be established by displaying the worker might do the job with an affordable lodging or by displaying that the shortcoming to carry out a necessary job perform is non permanent.
Lodging. An eligible worker is entitled solely to lodging which are deemed cheap. The PWFA attracts on the ADA to outline lodging as a change within the work setting or in the best way duties are carried out. The laws present examples of lodging that could be cheap: frequent breaks; sitting/standing; schedule modifications, lowered hours, and paid or unpaid go away; telework; parking; light-duty task; modifying work setting or making present services accessible; job restructuring; non permanent suspension of a number of job capabilities; buying or modifying tools, uniforms, or gadgets; and adjusting or modifying employment exams or insurance policies.
An employer needn’t present lodging that may impose an undue hardship on the employer. Once more, the laws draw on the ADA to outline this time period to imply important issue or expense for the employer. The laws present a listing of things that can be utilized to make this willpower but in addition gives a listing of minor lodging that nearly by no means represent an undue hardship similar to permitting extra frequent breaks or permitting an worker to hold water whereas working.
Nondiscrimination. The PWFA prohibits an employer from failing to supply an affordable lodging that doesn’t impose an undue hardship. The PWFA will also be violated if an employer unnecessarily delays the availability of an lodging. An worker shouldn’t be required to just accept an provided lodging, but when they want it to be deemed “certified” for the job, the refusal might imply they lose the job. When selecting amongst lodging, the employer should choose one that offers the eligible worker the identical alternative to succeed at work and acquire the identical degree of advantages and privileges out there to equally located workers.
Retaliation. The PWFA prohibits retaliation towards any worker who opposes discrimination underneath the PWFA.
Conclusion
Whereas there are sure to be questions that come up concerning the PWFA, these new laws present a framework that ought to permit employers to adjust to the PWFA and workers (and candidates) to grasp their rights. This legislation will assist assist numerous employees preserve their jobs regardless of being pregnant and childbirth, in addition to fight entrenched stereotypes about ladies’s labor pressure attachments. Particular person employees will profit from wanted lodging, however employers may also study that the availability of short-term lodging will repay in the long run.
