On June 27th, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect—a law that will require employers to accommodate workers for limitations stemming from pregnancy, childbirth, or related conditions. This also marks the start of the U.S. Equal Employment Opportunity Commission (EEOC) accepting charges of discrimination under the new statute. This substantial piece of legislation is a major step in ensuring financial security for birthing people during a particularly vulnerable time.
“I am honored to lead the EEOC as we enforce a new civil rights law. For workers and job applicants, the PWFA will help ensure economic security at a critical time in their lives,” said EEOC Chair Charlotte A. Burrows. “The EEOC stands ready to support employers as they carry out the PWFA’s directives and to support workers in receiving the accommodations they are entitled to under the PWFA.”
The PWFA is an extension of the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964. This law mandates covered employers to treat pregnant employees, newly postpartum employees, or employees facing similar circumstances, the same as other individuals. The Americans with Disabilities Act of 1990 provided additional protections by calling on employers to accommodate pregnancy-related impairments, like gestational diabetes. Unfortunately, even with these protections, there remains a gap. The PWFA aims to fill this gap by augmenting these protections to account for pregnancy, childbirth, and related conditions in their full scope.
Widespread controversy speaks to the necessity of the PWFA. Olympic sprinter Allyson Felix’s encounter with Nike tells us that existing legislation is not enough. After a tumultuous pregnancy and birthing experience in 2018, Felix attempted to renegotiate the terms of her contract to account for her reduced capacity during the early postpartum period. Nike refused to include this maternal protection, and instead offered her a 70% pay cut. If this can happen to a birthing person that sits comfortably in the upper echelons of society, it can, and already is, happening to birthing people of lower class.
The PWFA is a major step in shattering this reality. Under the act, employers with 15 or more employees must provide reasonable accommodations for known limitations tied to pregnancy, childbirth, and related conditions, unless the accommodation “would impose an undue hardship on the operation of the business”. It prohibits employers from:
1) requiring covered employees to accept accommodations that do not align with those outlined through negotiation,
2) denying employment opportunities to to covered employees on the basis of potential accommodations,
3) requiring covered employees to take leave in place of a reasonable accommodation,
4) taking “adverse action in terms, conditions, or privileges of employment against” covered employees requesting reasonable accommodations, and
5) retaliating against employees for reporting or opposing unlawful discrimination.
The act grants employers a level of discretion, which means that the EEOC will be a valuable player in enforcing the PWFA. By allowing employees to report pregnancy and childbirth related instances of discrimination, the EEOC will tap into the self-advocacy pregnancy often requires, and heighten accountability on the part of employers. It is our hope that this act is one step among many to create better conditions for birthing people.
