Labor & Employment Alert: H.R.2694 – "Pregnant Workers Fairness Act" Passes House

You are likely seeing stories in the media about Thursday’s passage of the “Pregnant Workers Fairness Act” by the U.S. House. It’s being highlighted because, after having been introduced in the House for several years, it managed to gain passage this time – and by a vote of 329 to 73. This time around, it is backed by a wide array of interest groups, including enthusiastic endorsement by the U.S. Chamber of Commerce, on behalf of businesses. Pressure seems to be building for the Senate to give the measure consideration as well.

What’s the Bill about? And what difference will it make legally, if passed?

Existing federal law provides that “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s. . . sex . . . .” And, by definition, the terms “‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . .” [Ohio law contains the same provisions.] To the casual observer, it might appear that existing law already grants protection to pregnant workers.

However, as interpreted by the courts, to succeed in a claim for “pregnancy discrimination” under these provisions, the plaintiff needs to demonstrate that she was treated differently than other non-pregnant employees with similar limitations. There very well may be no comparable employees – therefore, there may be no basis for claiming discriminatory treatment. 

From the employer’s standpoint, its obligations may be difficult to assess. The employer may well understand that, for a disabled person, there is a legal requirement to make “reasonable accommodations” in the workplace – but, “pregnancy,” in and of itself, does not, per se, constitute a disability which would trigger that requirement.

As passed in the House, the Bill would make it unlawful for an employer with 15 or more employees to refuse to make “reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” In other words, it would no longer be necessary for an employee to prove someone else received better treatment – the employer would now have an affirmative duty, analogous to the affirmative duty that already exists to accommodate a disabled employee. And, of course, an employer would be prohibited from retaliating against someone for making such a request.

Under the Bill, an employer would be advised of the “known limitations” by the employee, or her representative. The Equal Employment Opportunity Commission (EEOC) has been further tasked with establishing some examples of “reasonable accommodations” for “known limitations.” The kinds of accommodations which the House has expressly cited include: seating; water; closer parking; flexible hours; appropriately sized uniforms and safety apparel; additional break time to use the bathroom, eat, and rest; excusing the worker from strenuous activities; and excusing the worker from activities that involve exposure to compounds not safe for pregnancy.

This Bill is clearly evoking the protections and accommodation process of the Americans With Disabilities Act with which employers are already familiar. That law is premised on making accommodations to enable the employee to perform the “essential functions” of the job. But, under this Bill, that notion has been modified so that an employee may request to be exempt from an essential function for a “temporary period,” or to be allowed to perform an essential function “in the near future,” or to have the performance of the essential function “reasonably accommodated.”

The Bill has been passed to the Senate and sent to Committee for consideration.

We will provide updates as H.R.2694 – “Pregnant Workers Fairness Act” progresses. Please contact us with any questions.