Under federal and state law, discrimination in employment, including sex discrimination, which is defined to include pregnancy, childbirth and related medical conditions, has long been unlawful. Specifically, federal Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, and California Government Code section 12940, prohibit sex discrimination. However, even with the rights afforded workers under Title VII and other federal laws that have requirements governing pregnancy and pregnancy-related conditions, such as the Family and Medical Leave Act and the Americans with Disabilities Act (ADA), certain gaps have been identified in the federal legal protections for workers affected by pregnancy, childbirth or related medical conditions, in comparison to state law protections that already exist for such workers. Recently, a federal law was passed to address those gaps and while Californians already receive these protections (or more), the closing of these gaps is an important advancement for the rights of workers.
The Pregnant Workers Fairness Act (PWFA) (42 USC 2000gg), came into effect on June 27, 2023, and requires an employer to provide reasonable accommodation to workers with known limitations that are related to their pregnancy, childbirth or related medical conditions, unless the employer can show that the accommodation will cause an undue hardship to that employer. As the PWFA requires, the U.S. Equal Employment Opportunity Commission (EEOC) has begun the process for issuing implementing regulations for the law through a Notice of Proposed Rulemaking . The EEOC’s notice was posted in the Federal Register on Aug. 11, 2023, and the period for public comment closed on Oct. 10, 2023.
Key provisions of proposed PWFA regulations
The proposed PWFA regulations borrow extensively from existing civil rights laws, including Title VII and ADA, in the coverage, requirements and procedures imposed on private and public sector employers with at least 15 employees..
Who’s protected
PWFA protects qualified employees and job applicants who have known limitations related to, affected by or arising out of their pregnancy, childbirth or related medical conditions. To be a qualified employee or job applicant, the individual must, with or without reasonable accommodation, be able to perform the essential functions of the employment position. Nevertheless, an individual who is unable to perform one or more essential functions of an employment position can be deemed qualified, if the individual’s inability to perform those functions is temporary and can be reasonably accommodated and the individual could perform the functions in the near future. Under the proposed rules, an employee or job applicant’s limitation must be communicated to the employer, but the limitation need not meet the definition of “disability” under the ADA. An employer with reasonable concerns as to whether an employee or job applicant’s limitation or physical or mental condition is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” is permitted to request information from the employee regarding the connection, using a process similar to the interactive process required by the EEOC with respect to requests for reasonable accommodations under the ADA.
Reasonable accommodation
Reasonable accommodation, a term borrowed from the ADA, generally means changes to the work environment or the way things are usually done at work. The proposed rule provides some specific examples of possible reasonable accommodations under the PWFA, including frequent breaks, sitting/standing, schedule changes, part-time work, paid and unpaid leave, telework, job restructuring and temporary suspension of one or more essential functions.
Prohibited acts
A covered employer is prohibited from doing the following:
- Require an employee to accept an accommodation other than one arrived at through the interactive process
- Deny an employee or job applicant a job or other employment opportunity based on the person’s need for a reasonable accommodation
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, such as an investigation
Remedies and enforcement
Under the proposed PWFA rules, the procedures for filing a claim and the remedies available, including the ability to obtain damages, are the same as those under Title VII. In addition, as with the ADA, damages are limited when a claim involves the provision of a reasonable accommodation on which an employer has made a good faith effort to meet the worker’s need for reasonable accommodation.
Relationship to other laws
The PWFA does not limit the rights of individuals affected by pregnancy, childbirth or related medical conditions under a federal, state or local law that provides greater or equal protection. PWFA has limited application in California, which has long enacted protections for pregnant workers that are of wider applicability in terms of employers subject to it. Under California’s Government Code 12926, an employer with five employees is required to provide reasonable accommodation to workers with known limitations caused by pregnancy, childbirth or related medical conditions, versus PWFA, which applies to employers with at least 15 employees. In addition, many school districts and county offices of education that would be subject to the requirements of PWFA and these proposed rules are already implementing similar requirements in order to comply with state law. Any district with questions as to the applicability of the PWFA and/or the proposed rules should consult legal counsel or CSBA’s District and County Office Legal Services.
