The EEOC has brought a legal action against an employer for allegedly failing to accommodate an employee's known pregnancy-related limitations. It’s the first-ever lawsuit filed under the new federal pregnancy protection law.
The Equal Employment Opportunity Commission asserts the employer violated the Pregnant Workers Fairness Act (PWFA] and federal civil rights law.
What is the Pregnant Workers Fairness Act (PWFA)?
The PWFA, which went into effect on June 27, 2023, requires a covered employer to provide a “reasonable accommodation” to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
The new law applies only to accommodations. The PWFA provides for reasonable accommodations for qualified applicants or employees who have known limitations. It applies to private employers and public sector employers (state and local governments) that have 15 or more employees. It also applies to Congress and Federal agencies, as well as employment agencies and labor organizations.
Other laws that the EEOC enforces make it illegal to terminate or otherwise discriminate against employees or applicants on the basis of pregnancy, childbirth, or related medical conditions.
The new regulation went into effect on June 18, 2024 and doesn’t replace federal, state, or local laws that are more protective of job applicants and employees impacted by pregnancy, childbirth, or related medical conditions. This includes uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.
This article describes what employers should know about this first-of-its-kind lawsuit and the steps that can be taken to ensure compliance.
What Happened in the Lawsuit?
The EEOC claims in a lawsuit filed on September 10th that the semi-trailer and commercial trucking manufacturer Wabash National violated the PWFA by denying a pregnant employee’s accommodation request in its Kentucky plant. Wabash failed to make a pregnancy-related accommodation to the assembly line worker, despite the fact that it allegedly could have provided adjustments that are comparable to those offered to non-pregnant workers with similar limitations.
The employee asked to be transferred to a role that didn’t require her to lie on her stomach, according to the EEOC. The employee requested light duty for the duration of her pregnancy. Light duty entailed tasks like administrative work, inventory management, workspace housekeeping, and assembly assistance.
Instead of granting her request, Wabash is said to have told her to take unpaid leave—which left her to return to work in the same job. In the end, she resigned from her role when she was nearly eight months pregnant because of safety concerns and filed a complaint with the EEOC. The EEOC filed the lawsuit in the U.S. District Court for the Western District of Kentucky after failing to reach a pre-litigation settlement.
The employee was a "front plate" assembler who installed wiring in trailers. This job required her to bend over the tops of trailers. When she was seven-months pregnant, she told the HR Department that bending over trailers was painful; she said she was concerned that constant pressure on her stomach would jeopardize her otherwise healthy pregnancy.
When she asked to be moved to move to a light-duty position for the rest of her pregnancy, or to have her limitation accommodated in some other way, Wabash allegedly denied her claim under the Americans with Disabilities Act (ADA), even though she told them the request was being made under the recently enacted PWFA. Her only option, Wabash said, was to take unpaid leave or return to the front-plate position without modification.
What Does the PWFA Prohibit?
Covered employers are prohibited from doing the following:
- Failing to make a reasonable accommodation for an employee or applicant’s known limitations unless the accommodation would cause an undue hardship, which means significant difficulty or expense;
- Requiring an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
- Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would allow him or her to keep working;
- Punishing or retaliating against an employee or applicant who: asks for or uses a reasonable accommodation for a known limitation under the PWFA; reports or opposes unlawful discrimination under the PWFA; or participates in a PWFA proceeding (like an investigation); and
- Coercing those who are exercising their rights or helping others exercise their rights under the PWFA.
Key Points for Employers
No matter the outcome of the Wabash case, there are critical points employers need to bear in mind concerning the PWFA to avoid a similar claim. First, an employee with a healthy and normal pregnancy may seek and receive an accommodation under the PWFA, compared to the ADA, which has a threshold for the severity of the physical or mental condition for an accommodation request. “Reasonable accommodations” are changes in the work environment or the way things are usually done at work.
Also, the EEOC has provided some suggestions for potential accommodations in lieu of leave. For instance, depending on the nature of the employee's limitations, you can consider the offering the following accommodations:
- Additional, longer, or more flexible breaks to drink water, eat, rest, or use the bathroom;
- Changing food or drink policies to allow for a water bottle or food;
- Changing equipment, devices, or workstations, e.g., providing a stool to sit on, or a way to do work while standing;
- Changing a uniform or dress code or providing safety equipment that fits;
- Changing a work schedule, like shorter hours, part-time work, or a later start time;
- Telework;
- Temporary reassignment;
- Temporary suspension of one or more of a job’s essential functions;
- Leave for health care appointments;
- Light duty or help with lifting or other manual labor; or
- Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.
The EEOC says that this list provides some examples, and that many other reasonable accommodations may exist. Also, employers should note that a worker may need different accommodations at different times during the pregnancy or after childbirth.
Steps Employers Should Consider Taking ASAP
To position your organization in the most effective manner, consider the following actions:
- Be certain you’re in compliance with the PWFA. That means reviewing and modifying your accommodations review process since June 2023 if you haven’t.
- Be ready for the interactive process under the PWFA. Employers must conduct an interactive process with employees or applicants seeking accommodations. Even if you deny the employee's request and/or present other options, document how you engaged in this process.
- Be sure your HR staff understands PWFA regulations and note that the PWFA is much broader than the ADA; because the law includes terms like "temporary" and "in the near future," a worker may still be qualified for an accommodation despite the fact that he or she can’t perform an essential function of their job for that limited period of time.
- Make a point of updating mandatory employee training to include the details of the PWFA and its regulations. The EEOC says that first- level supervisors may be particularly likely to get accommodation requests and should be trained on their response, including how to avoid retaliating against those who request or use a reasonable accommodation.
- See that your HR Department has access to the list of suggested accommodations provided by the EEOC.
- Note that the California Fair Employment and Housing Act (FEHA) requires qualifying employers to provide reasonable accommodations for women who are unable to perform certain tasks or job duties due to pregnancy or a pregnancy-related medical condition.
- Work with legal counsel prior to denying pregnancy or childbirth-related accommodation requests.
Bottom Line
The EEOC reports that it’s taken nearly 2,000 charges of potential violations of the PWFA since the law took effect, most of which are workers alleging their employer denied “basic, common sense” accommodations such as additional water breaks or authorization for late arrival due to morning sickness.
Be sure your organization is in compliance with the PWFA and stays on top of any changes.