Tulane Law Online Virtual Speaker Series: Navigating the New Pregnancy Discrimination Regime

In December 2022, Congress passed an omnibus bill that will provide increased pregnancy discrimination protections in the workplace by incorporating the Pregnant Worker’s Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). These acts together will expand protections for pregnant and breastfeeding workers and close loopholes for enforcement and accommodations.

As part of a new Tulane Law Online Virtual Speaker Series, faculty members Professor Laura Avery, JD of Kerry Murphy Law, Professor Gillian Egan, corporate counsel APL Logistics and Professor Saru Matambanadzo, senior director of online legal education, sat down to discuss the history of pregnancy discrimination legislation and the impact of the new acts on the employment discrimination law landscape.

Legislation around pregnancy is still fairly new in the United States. Professor Avery shared an overview of the history of pregnancy discrimination, noting that as late as the 1960s women were still commonly fired for being pregnant. In cases related to pregnancy prior to 1964 that dealt with unemployment compensation, courts held that pregnant women who were forced to leave the workplace because of blanket termination policies “voluntarily” left employment and were ineligible for unemployment benefits.

“This [new legislation] is important. Three quarters of women entering the workforce will become pregnant on the job,” said Professor Avery. “But prior to now they had no right, as a federal matter anyway, to even modest accommodations that would protect them.”

Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, did not explicitly address pregnancy. Though commentators believed that pregnancy discrimination should be prohibited on the basis of sex¹, employers did frequently discriminate against pregnant women. The Supreme Court, in the 1976 case General Electric Company v. Gilbert, 429 U.S.125 (1976), determined that discrimination against pregnant persons was not sex discrimination because it made distinctions between pregnant and non-pregnant persons. While pregnant persons were all women, non-pregnant persons included a class of individuals that are women and men. The Court determined that this was not a form of sex discrimination.

In response to the Supreme Court’s decision in General Electric Company v. Gilbert, Congress passed the Pregnancy Discrimination Act. The Pregnancy Discrimination Act (PDA) of 1978 offered limited protections for pregnant and breastfeeding workers. The PDA makes it illegal for employers to discriminate on the basis of pregnancy, childbirth and related medical conditions.² Under the PDA, pregnant workers must be treated in the same manner as other applicants or employees who are similarly situated in their ability or inability to work. This legislation has a number of shortcomings, as it focuses primarily on discrimination and compares pregnant workers to non-pregnant workers.

“Courts have required that women who are pregnant find a comparator who is a non-pregnant person who is being treated better than they are being treated. But you know employers are great at distinguishing between the non-pregnant workers and the pregnant workers, and saying. ‘You, Joan, are not similarly situated to your colleague.’ So the part of the problem with the PDA is this loophole,” said Professor Matambanadzo. “This is the capacity loophole, that pregnant workers, in order to receive the protections of the PDA, have to find a similarly situated person who's being treated better, which is kind of difficult. So enter all of the state-based accommodation statutes—30 of them.”

The PDA does not require employers to accommodate pregnant workers unless the accommodation would be provided to similarly situated non-pregnant workers. Though employers could not fire a worker for being pregnant, the law did not require companies to make any workplace changes. Further, the scope of protections for workers suffering from morning sickness, menstrual cramps, infertility, or other pregnancy-related medical conditions was uncertain. And though many employees sought accommodations like light duty, modified tasks, alternative assignments, disability leave or leave without pay, employers were not required to make such accommodations even when they did so for other employees for other reasons.

Pregnant workers could also access legal protections through a patchwork of federal statutes that include the Family Medical Leave Act, the Fair Labor Standards Act, and the Americans with Disabilities Act. The Family and Medical Leave Act (FMLA) of 1993 entitles workers to job-protected, unpaid leave for 12 work weeks in a 12-month period.³ The FMLA includes pregnancy-related issues and prenatal care and was originally intended to prevent women from losing their jobs when they left to give birth. This act does not address accommodations for pregnancy in the workplace and does not apply to workers who have less than a year of service before taking leave. It also does not apply to employers with less than 50 employees.

The Americans with Disabilities Act provides protections for workers with disabilities. Employers with more than 15 employees are covered by the act. Employers covered under the ADA cannot discriminate against people with disabilities in hiring and in the terms of conditions of employment on the basis of their disability. Under the ADA, employees with disabilities may request reasonable accommodations to the terms and conditions of employment so long as the employee can perform the essential functions of the job. These reasonable accommodations may include modifications or adjustments to job duties and responsibilities or the working environment. In 2008, Congress amended the ADA to provide more protections for disabled persons. Under the 2008 amendments to the Act, the ADA applies to protect workers with pregnancy-related disabilities. Although pregnancy is not a disability, some women are eligible under ADA. Courts have, in recent years, applied the ADA to postpartum depression, recovery from a caesarian section, lifting restrictions and pelvic pain. Under the ADA, employers still are not required to provide accommodations that pose undue hardship.

In 2010, the Fair Labor Standards Act (FLSA) was amended as part of the Affordable Care Act to provide reasonable break time for nursing employees to pump breast milk at work as part of the Affordable Care Act. The FLSA protections for nursing mothers, however, were implemented with numerous loopholes and limitations.

To this complex legal landscape of patchwork protections, Congress has passed the Pregnant Worker Fairness Act. The Pregnant Worker Fairness Act (PWFA) has been introduced in every legislative session since 2012. Some states opted to expand accommodations for pregnant workers without a Federal mandate.

Now, however, on its seventh introduction to a legislative session, the PWFA has passed as part of an omnibus bill. It will go into effect on June 27, 2023.

The PWFA provides reasonable accommodations to pregnant workers who are limited in their capacity to work.⁴ It largely incorporates the accommodation requirements of the ADA, calling for work adjustments unless they result in “undue hardship” to an employer. This legislation differs from the ADA in that the PWFA protects an employee who cannot perform the essential functions of the job if that inability is temporary, will be eliminated in the “near future” and can be reasonably accommodated. It also differs from the PDA and Title VII’s anti-discrimination mandate, separating pregnancy from the equal treatment regime applicable to other forms of sex discrimination.

This bill expands the requirement for employers to provide certain accommodations for employees who need to express breastmilk.⁵ The PUMP Act is designed to amend and make fair labor standards more robust. Time spent to express breast milk must be considered hours worked if the employee is also working, and it extends the accommodation period from one to two years.

“This is in line with recommendations by the WHO that individuals should breastfeed and provide breast milk for children in the first two years of their life,” said Professor Matambanadzo.

Unlike the FLSA amendments from the ACA, the PUMP Act provides mechanisms to enforce the protections for breastfeeding employees to express milk. For employees who wish to make a claim of liability against an employer, they must first notify the employer of non-compliance and give them 10 days to make accommodations that are in compliance.⁵ The PUMP Act did go into effect the day it was passed on December 29, 2022, and is being enforced as of April 28, 2023.

The PWFA is a positive development as it piggybacks on existing laws and provides more clarity. It is a recognition that pregnancy is temporary, and that people can be accommodated for the brief period of time when they are limited by this condition. However, the implementation of the law, particularly around determining what constitutes a known limitation and handling leave requirements, is an area of concern.

“What I foresee is some reluctance to make those accommodations, even though they’re temporary, because then other people who are disabled, who will need accommodations on a permanent basis might point to that and say, ‘Oh, well, if you did it for her, I want to do it for me.’ And I think that employers might get a little reluctant and scared about setting a precedent,” said Professor Egan. “Adding this temporary accommodation of letting pregnant workers not do an essential function for a while is going to be an area of some fights, too.”

Professor Egan noted that figuring out what’s an undue hardship in these circumstances and overcoming dividing lines about when a pregnant worker can no longer work an essential function is going to be important. Employers will also want to avoid being paternalistic by providing pregnant workers with the necessary information so that they can make the best decisions for their situation.

In terms of where protections could go next, states are already passing paid leave legislation. While it takes a long time to pass anything at the federal level, this will likely be a focus, especially as the birth rate continues to fall and the maternal death rate is high for an industrialized nation. All of this will further bring the issue into focus.

“Eventually, we’re going to get to the point where the country will have to start investing in making it more attractive to give birth to children. Maybe that will turn the tide,” said Professor Egan.

Watch the full presentation from Professor Laura Avery, JD of Kerry Murphy Law, Professor Gillian Egan, corporate counsel APL Logistics and Professor Saru Matambanadzo, senior director of online legal education. They go into greater detail about the history of pregnancy and work and past cases that led to current pregnancy discrimination legislation.

Pregnancy discrimination law is just one of many complex legal protections that play a role into today’s workplace. Having the expertise to navigate complex employment laws is just as critical as understanding their significance. In Tulane’s online MJ in Labor and Employment Law program, you’ll master the complexities of employment law, gaining the legal foundation to meet federal, state, and local compliance regulations. Learn more about our world-class curriculum and make plans to meet with a member of our admissions team today.