Federal Authorities File First Lawsuit Under Pregnant Workers Fairness Act: 8 Compliance Reminders for Employers

The federal agency that enforces workplace anti-discrimination laws is suing an employer for failing to accommodate an employee’s known pregnancy-related limitations. It’s the first lawsuit filed under the new federal pregnancy protection law. The Equal Employment Opportunity Commission says the employer violated the Pregnant Workers Fairness Act (PWFA), as well as federal civil rights law. Here’s what employers need to know about this groundbreaking lawsuit and eight steps you can take now to ensure compliance with the law.

What happened?

In a lawsuit filed September 10, the EEOC claims that a national manufacturing company violated the PWFA by failing to provide pregnancy-related accommodations to an assembly line worker in Kentucky, even though the employer could have provided accommodations comparable to those offered to non-pregnant workers with similar limitations.

Here’s what the EEOC alleged in the complaint:

Relevant tasks: The employee was a “front plate” assembler who installed wiring in trailers. This required her to lean over the top of the trailers.
Concerns about impact: When the employee was seven months pregnant, she told human resources representatives that bending over trailers was painful and expressed concerns that the constant pressure on her stomach could endanger her otherwise healthy pregnancy.
Request for accommodation:She asked to be moved from the front plate position to another position on the assembly line, to be moved to a light duty position for the remainder of her pregnancy, or to have her limitation accommodated in some other way.
Request denied: The employer allegedly denied her request under the Americans with Disabilities Act (ADA), even though she told him the request was being made under the recently enacted PWFA.
Arrangements made for other employees in a similar situation: The employer allegedly rejected her request, even though it offered light duties to other non-pregnant disabled workers, and only gave her the option of taking unpaid leave or returning to the front-line position without modification.
The employee resigned due to safety concerns and filed a complaint with the EEOC.

The EEOC filed the complaint in the U.S. District Court for the Western District of Kentucky after failing to reach a pre-litigation settlement.

Key takeaways for employers

Although this case was filed earlier this month — and we don’t yet know the employer’s version of events or the court’s final decision — there are some key things you should keep in mind about the PWFA to avoid a similar claim:

The PWFA, which just went into effect in June 2023, is a federal law that requires employers with 15 or more employees to consider requests from employees and job applicants for accommodations related to pregnancy, childbirth, or related medical conditions the same way you consider requests for accommodations related to disabilities under the ADA.

It should be noted, however, that a worker with a healthy, normal pregnancy could request and receive an accommodation under the PWFA, while the ADA has a threshold of severity of the physical or mental condition for an accommodation request.

The PWFA prohibits employers from placing an employee affected by pregnancy, childbirth, or related health conditions on unpaid leave – whether paid or unpaid – when another reasonable accommodation option is available. The government has provided some suggestions for potential accommodations in lieu of leave. For example, depending on the nature of the employee’s limitations, you may want to consider offering the following accommodations:

allow workers to sit or drink water;
provide closer parking spaces;
offering flexible working hours;
provide appropriately sized uniforms and safety clothing;
provide workers with extra breaks for toileting, eating and resting;
exempting workers from strenuous activities or activities involving exposure to compounds hazardous to pregnancy; and
grant leave or time off to recover from childbirth.

If you want a full recap, you can read our detailed PWFA FAQ here.

In particular, in EEOC v. Wabash National CorporationThe employee requested light duty throughout her pregnancy. The EEOC alleges that the company offered only unpaid leave as a pregnancy-related accommodation, whereas light duty was available to non-pregnant employees, including those with temporary disabilities, who requested similar accommodations under the ADA. Light duty included administrative work, inventory management, workspace maintenance, and assembly assistance.

According to the EEOC complaint, the employee was able to perform administrative tasks such as managing inventory, processing orders and supervising workspace maintenance. She also could have performed any task on the assembly line that did not require bending over or lying on her stomach.

The employer, however, placed her on leave without engaging in the interactive process, which “constituted a forced accommodation in violation of the PWFA,” the agency said.

8 Steps Employers Should Consider Taking Right Now

To position your organization in the most effective way possible, you should consider the following steps:

1. Make sure you are already compliant with the PWFAIf you haven’t reviewed and adjusted your accommodation assessment process since June 2023, now is the time to do so.

2. Be prepared to participate in the interactive process. The PWFA requires employers to conduct an interactive process with employees or applicants seeking accommodations. While you are not required to grant the employee’s preferred request and may offer alternatives, you must be able to demonstrate that you have engaged in this process both as a best practice and in compliance with the law.

3. Train your HR department Employers should be aware of the ins and outs of the related regulations in order to familiarize themselves with the new details provided in these regulations. Notably, the PWFA is much broader than the ADA, as it includes terms like “temporary” and “for the foreseeable future,” and a worker may still be entitled to an accommodation even if they cannot perform an essential function of their job during that limited period. Ultimately, these factors may be more difficult for employers to establish that the accommodation imposes an undue hardship on the business’s operations.

4. Make sure your HR department has access to the list of accommodations offered Regulatory provisions, which may include temporary suspension of a professional function, are a good starting point to use during the interactive process.

5. Update your mandatory employee training to include a discussion of this law and new regulations if necessary.

6. Check state laws. It should be noted that some states have their own laws protecting pregnant workers. In fact, 30 states and a few cities require certain employers to provide some form of accommodation to pregnant employees. These laws can vary and offer more protections.

7. Contact your legal advisor before denying any request for accommodation related to pregnancy or childbirth.. As with the ADA, employers may deny requests for reasonable accommodations under the PWFA if they would impose an undue hardship on their business operations, meaning something that would result in “significant hardship or expense.” However, you should proceed with caution and consult your attorney before denying an accommodation request on this basis, given the risks involved.

8. Follow new developments. A group of states is seeking to block the PWFA regulations—particularly the inclusion of abortion-related accommodations—and are citing the new legal standard that diminishes the power of agencies to issue broad regulations. This challenge is ongoing, and we will provide updates as needed. In the meantime, you should have a compliance plan in place and consult your attorney with any questions.