Pregnancy Accommodations in the Workplace

Savvy human resources professionals understand that retaining valuable talent requires a willingness to embrace life events for your employees. One life event that looms large in a person’s life is the decision to start a family through pregnancy. In the U.S., discrimination against pregnant workers is prohibited by law and employers must provide accommodations for pregnant employees in the workplace. Recent changes in the law, including regulatory guidance from the Equal Employment Opportunity Commission (EEOC), are available to help employers navigate the legal landscape of pregnancy discrimination.

Read on to learn more about the federal prohibition against pregnancy discrimination.

In the United States, employers may not discriminate against pregnant employees. In 1978, Congress passed the Pregnancy Discrimination Act (PDA).¹ For any employer with 15 or more employees, Title VII makes it unlawful to discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions. The act also applies to employment agencies, unions, Congressional employees, and federal agencies. The passage of the PDA statute was a bipartisan triumph, bringing together Democrats and Republicans to address a crucial need.

Amending Title VII of Civil Rights Act, the PDA contained two crucial provisions to protect pregnant persons in the workplace. First, the PDA expands the definition of sex discrimination under Title VII to include discrimination on the basis of pregnancy, childbirth and medically related conditions. Second, the PDA requires that women who are impacted by pregnancy, childbirth or related medical conditions “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”¹ The Pregnancy Discrimination Act was interpreted to constitute a “floor” for pregnant workers.¹ In most circumstances, employers may provide additional benefits to employees affected by pregnancy, childbirth and related medical conditions, even though they are not required to do so.

The PDA, however, left crucial challenges for pregnant workers. Pregnant persons under the PDA often faced disparate treatment because they were limited in their ability to perform their work throughout the pregnancy. The original interpretation of the PDA did not require employers to accommodate pregnant workers who are limited in their ability to work. In case after case, pregnant workers who faced limitations in their ability to perform the functions of a job were not provided with accommodations.²

Even when employers were willing to accommodate non-pregnant workers who were similarly situated, it was unclear whether the second clause of the PDA, which requires employers to treat people affected by pregnancy, childbirth and related medical conditions like other individuals who are similarly situated in their ability to work, means that employers must provide accommodations for pregnant persons. It was unclear whether employers were not required to provide accommodations to pregnant employees even if they did so for other employees.²

Many courts were explicit in their position that the PDA did not require accommodations for pregnant employees. As the 11 Circuit Court of Appeals noted in Spivery v. Beverly Enterprises, Inc.,³ employers are “...under no obligation to extend this accommodation to pregnant employees. The PDA does not require that employers give preferential treatment to pregnant employees.”

In 2008, accommodations for pregnant workers expanded with the passage of amendments to the Americans with Disabilities Act (ADA). Passed to strengthen the ADA, the 2008 Amendments employ a broad conception of what counts as a disability that ensures that even episodic or temporary disabilities that substantially limit a major life activity are required.⁴ Under the 2008 Amendments, the expanded definition of disability meant that pregnant individuals who were substantially limited in a major life activity were able to seek disability accommodations. If impairments that arise from pregnancy substantially limit a major life activity, then an employee may be able to seek accommodation under the law under the 2008 Amendments to the Americans with Disabilities Act.

The 2008 Amendments to the ADA, however, did not completely resolve the question of accommodations. As the Supreme Court’s decision in Young v. UPS—a case in which a worker filed a disparate-treatment claim of discrimination against the United Parcel Service when she was told she could not work while under a lifting restriction due to her pregnancy⁵—illustrates, its determination to send the case back to the lower courts, however, there was still a question about whether employers were required to accommodate pregnant employees who have limitations in the workplace on the same ground as other employees whose limitations arose from. According to a report by the House of Representatives, Young v. UPS did not resolve the crucial issues of accommodation definitively. While the Supreme Court did determine that employers may be required to furnish reasonable accommodations to employees who are limited in their ability or inability to work, it did not definitively determine that they must. This made the Pregnant Worker Fairness Act important for expanding crucial protections for pregnant workers.

In 2022, Congress passed the Pregnant Worker Fairness Act (PWFA).⁶ Passed as part of a larger omnibus bill, the PWFA amends Title VII to address the issue of whether employees who are limited in their ability to work by childbirth, pregnancy or related medical conditions are entitled to accommodations on a similar basis to employees who are similarly situated in their ability or inability to work. The PWFA requires employers to provide reasonable accommodations for qualified employees who are limited in their ability to work because of pregnancy, childbirth or related medical conditions unless an accommodation would create an undue burden.

Qualified employers are workers who can perform essential job functions with or without accommodations. Employees may also be qualified under the PWFA if they cannot perform essential job functions on a temporary basis or if they will be able to perform essential job functions in the near future. Even when employees cannot perform essential job functions because of pregnancy, childbirth, or medically related conditions, they may still be qualified employees for the purposes of the PWFA. Pregnancy discrimination may arise if an employer fails to provide accommodation for an employee who is limited in their ability to work because of pregnancy, childbirth or medically related conditions.

The final regulation went into effect on June 18, 2024.

The EEOC, the agency responsible for enforcing Title VII and promulgating administrative guidance on how to implement anti-discrimination law, published its final rule on the implementation of the PWFA on April 15, 2024. The finalized rule made a few key clarifications to the PWFA. One of the significant areas of intervention in the finalized rule lay in defining the scope of medically related conditions that may be grounds for pregnancy discrimination.⁷ As part of the finalized rule, medically related conditions have been defined to include accommodations related to stillbirth, lactation, migraines, contraception, abortion and even temporary conditions like morning sickness by definition. Although nothing in the law requires that employers pay for employees who are terminating a pregnancy and nothing requires an employer to pay for the pregnancy to be terminated, the finalized rule permits employees to seek a workplace accommodation.⁸

The idea of providing accommodations for pregnant workers is not new in the U.S. Thirty-one states and numerous cities require employers to provide reasonable accommodations for employees who are limited in their ability to work by a condition arising from pregnancy, childbirth or related medical conditions.⁹

To determine what accommodations are reasonable and necessary, employers must engage in an interactive process with qualified employees and provide such accommodations to them. Further, under the PWFA, employers may not take adverse action against employees because of known limitations related to pregnancy, childbirth or related medical conditions. The act also makes it unlawful for employers to make employees take a leave of absence because of pregnancy, childbirth, or related medical conditions. The PWFA, like the PDA and Title VII, also prohibits differential discrimination for applicants and former employees.

As part of the final rule, the EEOC also provided guidance on the types of accommodations that may be available to employees who may be substantially limited in major life activities. Employee accommodations may include additional rest breaks, water breaks, stools to sit upon, remote telework, the ability to eat food or drink water outside of approved break times, temporary suspension of essential job duties, permanent transfer or even unpaid leave.

The EEOC also clarified the nature and scope of when an employer is not compelled to provide a reasonable accommodation because it imposes an undue burden upon the employer. The final rule links the interpretation of the undue burden in the PWFA with the regulations promulgated to serve the ADA.

The guidance also clarifies the concern of religious entities. Although qualified religious organizations may differentiate between employees on the basis of religion, religious entities are not exempt from the requirements of the PWFA.⁷ However, the rule did provide some guidance to employers on how they might raise religious defenses under the ministerial exemption or under the Religious Freedom Restoration Act of 1993.

One of the controversies associated with the PWFA’s accommodation protections involves its coverage of elective abortions, a medically related condition of pregnancy. At least 17 states and numerous religious organizations have challenged the EEOC’s guidance as it relates to accommodations for elective abortions. Though the Eastern District Court of Arkansas dismissed one of these challenges in the Eighth Circuit, Judge David Joseph of the Western District of Louisiana in the Fifth Circuit granted a preliminary injunction of the PWFA’s accommodations protections for abortion in Louisiana and Mississippi.¹⁰ In the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization case,¹¹ which overturned Roe v. Wade and sent the regulation of abortion back to the states, it is not clear how these challenges will impact pregnant workers who need accommodations to terminate their pregnancy.

In addition to the PDA, the ADA and the PWFA, there are other statutes that are relevant to employers seeking to ensure compliance. There are two statutes of importance for human resources professionals that are relevant to ensuring compliance in the realm of pregnancy discrimination: the Family Medical Leave Act (FMLA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP Act).

First, human resources professionals should understand the Family Medical Leave Act (FMLA). For covered employers with more than 50 employees, the FMLA provides 12 weeks of unpaid leave to recover from giving birth or to care for an infant, incapacity related to pregnancy, or medical conditions arising from pregnancy, childbirth or related medical conditions.

The PUMP Act was passed to amend protections from the Fair Labor Standards Act’s protections for mothers seeking to express breast milk in the workplace. For the first two years after giving birth, the PUMP Act provides reasonable break time for individuals expressing breast milk. Employers must also provide a room with a door that closes that is not a bathroom for employees to express breast milk in. If an employer fails to do so, employees have a cause of action—i.e., the employee may sue. However, employees may not pursue the cause of action until the employer has been notified of their failure to comply. Then the employee may only file a lawsuit 10 days after the notice has been given.

Human resources professionals should review their current policies and procedures addressing pregnancy accommodations in the workplace to ensure compliance.

The legislation and recommendations surrounding pregnancy accommodation is complex. Tulane Law’s online Master of Jurisprudence in Labor & Employment Law program gives you the skills to understand the law in order to enact policy to keep your workplace compliant.

Pregnancy discrimination is just one of many complex legal protections that play a role in today’s workplace. Having the expertise to navigate complex employment laws is critical not only to your workplace but will give you the ability to take your career to new heights. Through our targeted curriculum, you’ll master the complexities of employment law to gain the legal foundation to meet federal, state and local compliance regulations.

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