I wrote about a bill called the Pregnant Workers Fairness Act (PWFA) in 2012, when it was introduced in Congress for the first time. Ten years later, it has finally cleared the House and Senate (as part of an omnibus budget bill) and was signed into law by President Biden on December 29, 2022. This bipartisan bill provides much-needed protection for people who work during pregnancy. It addresses a longstanding gap in employment discrimination law that left many pregnant workers without the accommodations they need to continue to work despite the physical effects of pregnancy. Under the new law (spearheaded by A Better Balance), pregnant workers are entitled to reasonable accommodations necessitated by pregnancy, childbirth, or related medical conditions, as long as they do not impose an undue hardship on the employer.
In this column, I’ll explain the gaps in pregnancy discrimination law, the need to better address the realities of pregnant workers, and the ways in which the new law will better meet their needs.
Before the Pregnancy Discrimination Act of 1978: Open Season for Pregnancy Discrimination
For most of history in the United States, pregnant women labored at the mercy of employers. With no applicable legal protections, pregnant women had no grounds to complain if pregnancy triggered an adverse employment action. In fact, employers routinely discriminated against pregnant women with formal policies that barred them from the workplace altogether or from particular jobs, changed their working conditions unilaterally, forced them out at specific points during pregnancy regardless of their individual physical condition, and refused to allow them to return to work after pregnancy until a fixed time had passed.
The lack of protection was part and parcel of a system that kept women in their place. Bias against pregnant workers was not the product of isolated or random impulses; it was the natural outgrowth of a system that relied on a highly gendered ideology. Paid work, by and large, was thought to be incompatible with women’s designated roles of wife and mother. This ideology was reinforced by legislatures and government employers who had, in many different contexts over many decades, developed hard rules about when and whether pregnant women could work. Indeed, the government was in large part responsible for a system that subjected women to forced firings, exemptions from benefits and insurance coverage, and delayed returns to work after childbirth.
Beginning in 1971, the Supreme Court issued a series of ruling holding that sex-based classifications were entitled to heightened judicial scrutiny under the Equal Protection Clause. This meant that the government (including public employers) could not have different rules for women than for men without a sufficiently compelling reason. But in 1974, the Supreme Court held in Geduldig v. Aiello that pregnancy discrimination was not a form of sex discrimination for equal protection purposes and therefore that pregnancy-based classifications did not merit this type of heightened scrutiny. In that case, plaintiffs challenged the California disability insurance system that required all employees to pay premiums in exchange for some wage replacement in the event of disability. The program excluded coverage only for four conditions: dipsomania (alcoholism), drug addiction, sexual psychopathy, and pregnancy. Challengers argued that this unconstitutionally discriminated against women, the vast majority of whom would become pregnant at some point during their working lives and experience and be unable to work for at least the short period surrounding childbirth, if not longer because of the pregnancy itself. But the Court rejected their claim, writing, infamously, that the policy did not draw lines based on sex or gender but rather distinguished between “pregnant and non-pregnant persons.” (These words were written decades before there was any discussion of trans men becoming pregnant.) The idea that pregnancy has nothing to do with gender was laughable.
The upshot of Geduldig was that states and public employers remained free to impose special rules on pregnant women. And although some had argued that Geduldig had been questioned or implicitly overruled by later cases, the Supreme Court applied it in Dobbs v. Jackson Women’s Health Organization (2022) to hold that abortion rights were not protected under the Equal Protection Clause.
During that same term in 1974, however, the Court did hold in Cleveland Board of Education v. LaFleur that the policies of several school districts forcing pregnant teachers to leave their posts by the fourth month—and not allowing them to return until three months after birth—were unconstitutional under the Fourteenth Amendment’s Due Process Clause. Although there was no equality-based right against pregnancy discrimination per Geduldig, these teachers had a right not to be conclusively presumed unable to work, regardless of individual condition. They had the right to an individualized assessment of capacity.
Geduldig and LaFleur were odd bedfellows. Geduldig seemed to give license to public employers to single out pregnant women for adverse treatment, but LaFleur seemed to restrict that freedom at least to the extent the adverse treatment denied individual women the right to be judged on their own merits. Public employers were thus free to deny accommodations or other benefits to pregnant workers who were actually unable to work at full capacity but could not presume incapacity from their pregnant status alone.
In 1976, the Supreme Court issued an even more disadvantageous ruling for pregnant workers. It held in General Electric, Co. v. Gilbert that pregnancy discrimination also did not count as sex discrimination under Title VII, the main federal anti-discrimination law. This meant that private employers (who were not bound by the ruling in LaFleur) were free to impose special rules on pregnant workers with respect to hiring, firing, or the terms and conditions of employment.
The Pregnancy Discrimination Act of 1978: Landmark Legislation that Opened Doors
The Supreme Court’s ruling in Gilbert fueled a fast and furious movement to obtain statutory protection for pregnant workers. The Campaign to End Discrimination Against Pregnant Workers sought and ultimately persuaded Congress to pass a new law: The Pregnancy Discrimination Act of 1978 (PDA).
The PDA specifically overruled Gilbert’s interpretation of Title VII by redefining “sex” to include “pregnancy, childbirth, or related medical conditions.” The Act was designed, according to a Senate Committee report, “to reflect the ‘commonsense’ view and to ensure that working women are protected against all forms of employment discrimination based on sex.”
In full, the PDA provides:
The terms ‘because of sex’ or ‘on the basis of sex’ [in Title VII] include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.
The PDA contains two clauses, which guarantee different rights. The first clause establishes that Title VII’s ban on sex discrimination includes discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” Thus, any policy or employment decision that intentionally discriminates against pregnant workers or has a disparate impact on them can be challenged in the same way as discrimination on the basis of any other protected characteristic. More or less, this clause means that employers cannot make decisions based on an employee’s pregnant status. The first clause was designed to put an end to common employment policies and practices that treated all pregnant women as an undifferentiated group and that relied on stereotypes about their ability to work regardless of individual capacity. It also explicitly prohibited employment decisions born of animosity or hostility to pregnant workers, even if stereotypes were not in play.
The second clause is a different beast because it is not modeled on any other anti-discrimination provision in federal law. It provides that women affected by pregnancy, childbirth, or related medical conditions “shall be treated the same treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”
Clause two provoked one main battle in its early years: what does it mean to treat pregnant “the same as” other temporarily disabled workers? The question arose quickly whether state law could mandate, or employers could choose to provide, benefits for pregnancy that it did not provide for workers temporarily disabled by other causes. The Supreme Court resolved the issue in California Federal Savings v. Guerra (1987), concluding that “Congress intended the PDA to be a floor beneath which pregnancy disability benefits may not drop, not a ceiling above which they may not rise.” Thus, under clause two, as interpreted in Guerra, employers can choose to provide no benefits or leave for disability without violating the PDA but cannot exempt pregnant women from the benefits they do provide; they are also permitted to provide benefits only for disability related to pregnancy, excluding disabilities attributable to all other causes.
Despite the ruling in Guerra, the second clause was the subject of many more years of litigation, as employers tried to find clever ways to exempt pregnant workers from otherwise available benefits. Many of these cases revolved around light-duty policies where employers permitted temporarily disabled employees to shift to less enormous positions temporarily. For example, police officers who were injured could temporarily be assigned to desk duty without losing any pay or benefits. Many employers made light-duty assignments available only to those injured on the job, a criterion that meant those disabled by pregnancy were excluded along with others whose disability did not originate at work. The Supreme Court considered whether such policies violated the PDA in 2016 in Young v. United Parcel Service. Although the Court narrowly ruled in favor of the plaintiff, it rejected the argument that pregnant workers are entitled under the second clause of the PDA to any benefit or accommodation that is available to other temporarily disabled workers. Instead, the Court adopted a special test for evaluating the legality of employer policies that do not expressly exclude pregnant workers but which disproportionately burden them. Explained in more detail here, the Young court restored some of the original protection of the second clause by forcing employers to justify their reasons for limiting benefits or accommodations in a particular way. (Some of the remaining questions are explored here and here.)
Rights Guaranteed—and Not Guaranteed—by the PDA
As explained above, the PDA makes it illegal for employers covered by Title VII (those with at least fifteen employees) to discriminate intentionally on the basis of pregnancy. It also makes it illegal for employers to exclude pregnant workers from otherwise available benefits, although they can sometimes be excluded from certain types of accommodation as long as they are not the only group excluded and the reason for excluding them is not simply cost or convenience.
All told, prior to adoption of the Pregnant Workers Fairness Act, pregnant workers had the following rights:
- Full Capacity to Work: A pregnant employee who can work at full capacity—i.e., she has no physical effects that interfere with her job responsibilities or necessitate an accommodation—must be treated like a non-pregnant employee in all respects. If able to perform all aspects of her job, this employee cannot be assumed to have limitations or be denied the opportunity to work just because she is pregnant.
- No Capacity to Work: A pregnant employee who temporarily cannot work because of the physical effects of her pregnancy, the particular demands of her job, or the interaction between the two, is entitled to the same leave and benefits as other temporarily disabled workers. (Unpaid leave under the Family and Medical Leave Act or paid leave under a state law may also be available in this situation.)
- Partial Capacity to Work: If a pregnant employee can work only if the employer makes certain accommodations to her assigned tasks or work environment, the PDA provides a comparative right of accommodation. Under the second clause, this worker is entitled to whatever accommodation her employer grants to other temporarily disabled employees (subject to the test established in Young).
The most significant limitation in this scheme of protections is the lack of a stronger right to accommodation. This limitation is built into the structure of the statute. Employers can comply with the PDA by denying accommodations to all workers—or by providing them to a select group in compliance with the test set forth in Young. This is true even when the accommodations that a pregnant worker needs is minor and costless.
The Pregnant Workers Fairness Act: A Right of Reasonable Accommodation
The new law responds directly to this gap in the PDA. When first introduced, it promised to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”
The PWFA requires employers who are otherwise covered by Title VII to provide reasonable accommodations necessitated by pregnancy, childbirth, or related medical conditions unless doing saw would impose an undue hardship on the employer. The law also prohibits employers from denying an employment opportunity to an employee in order to avoid making an accommodation, from forcing an employee to take leave if an accommodation would make continued work possible, and from retaliating against an employee who requests or uses an accommodation.
This approach is modeled after the Americans with Disabilities Act, which grants eligible employees an affirmative right of accommodation regardless of how others are treated by the employer. Several states have also adopted laws that mandate accommodations for pregnant workers either generally or in certain types of jobs. Those laws have been effective in shifting the burden to employers to figure out how to accommodate those with pregnancy-related disability. The “reasonable accommodation” approach contemplates an interactive process in which a pregnant worker can request an accommodation, and the employee and employer can meet to discuss how the employee’s needs might reasonably be met in the particular employment context. Reasonable accommodations might include light-duty assignments, additional or longer breaks, exceptions from restrictive food and drink policies, a change in uniform or work schedule, and so on. The very requirement that this process take place should help correct the indifference many employers have shown to the plight of pregnant workers, most of whom want or need to continue working throughout their childbearing years.
The right of reasonable accommodation is important for the many pregnant workers who struggle to navigate jobs and working environments that were typically not designed with them in mind. Pregnant women generally are physically able to engage in paid work, just as they are physically able to carry out other responsibilities in their lives. But there can be conflicts between the physical effects of pregnancy and the demands of a job. Typical conflicts involve lifting restrictions, dangers from exposure to certain toxins, restrictions on standing for long periods, or the need for regular breaks. Many women, especially those who labor in low-wage jobs with inflexible working conditions or those who labor in traditionally male-dominated occupations with serious physical demands and various kinds of hazards, do need some type of accommodation during pregnancy in order to continue working without sacrificing the chance for a healthy pregnancy and delivery. In many cases, these conflicts can be alleviated with a minor and inexpensive or costless accommodation from the employer. Yet employers historically have routinely denied such accommodations.
Conclusion
The PWFA is a long-overdue fix for a gap in pregnancy discrimination law. This law will help countless workers maintain their jobs despite pregnancy and childbirth and will undercut entrenched stereotypes about women’s labor force attachments. Although there will undoubtedly be litigation about the meaning of this new law (e.g., What is a reasonable accommodation? What constitutes an “undue hardship”? What evidence is necessary to prove retaliation?), the PWFA should eliminate the questions that have lingered after Young about when employers are entitled to exclude pregnant workers from otherwise available accommodations. This law will help individual workers who need accommodations but will also help employers understand that short-term accommodations can have long-term payoffs.
