In many workplaces, pregnant women often experience discrimination based on their sex and face unjust comparisons to their male peers. According to the latest figures from the U.S. EEOC, they have fielded almost 2700 claims relating to loss of income due to pregnancy last year. A few such preventative policies and measures aim to improve the work-life balance of women who are expecting kids.
In 2023, the Pregnant Workers Fairness Act (PWFA) was implemented and it requires employers to attempt to provide adjustments unless it is impossible and usually tell the employee to stop working as a last resort after all other possible modes of doing duties have been tried and failed.
Expectant employees must learn specific directives, such as the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act of 1993 (FMLA), to recognize actions that could be penalized by law and to identify gender discrimination in the several states.
Still, there are scenarios that can be confusing. For example, what happens if you start a new job and find out you’re pregnant in California or other states?
Let’s find the answers to this query and other concerns regarding pregnant women in the workforce.
The Interactive Process: What Employers Are Required to Do
When a pregnant employee tells an employer about a pregnancy-related limitation and asks for a change at work, the employer’s legal duty is to take part in an interactive process. This process is a dialogue that is meant to find a reasonable accommodation. It cannot be skipped and must be continued until the accommodations necessary are set in place. The EEOC’s final PWFA regulations underline that the process should move fast since pregnancy situations are time-sensitive.
In the course of interactive dialogue, the employer is to consider the specific limitation of the employee, sift through different alternative accommodations, and then indicate where undue hardships in one particular choices sets in. An employer cannot unreasonably talk of undue hardship when they have other reasonable options. Employers are required to demonstrate evidence as to why the requested accommodation will cause undue hardship.
The employer cannot make the employee accept one specific accommodation as a condition for continuing to work. In a situation where the employer and the employee do not agree on which accommodation is most effective, the employer may choose a reasonable accommodation. If the employer thinks the modification requested by the worker is inconvenient, it does not give the employer the right to force the employee to go on unpaid leave.
For more details about the accommodations that could be requested when someone is expecting, visit the website https://valerian.law/.
Four Accommodations That Cannot Be Denied Without Individualized Assessment
The EEOC’s final PWFA rule points to four predictable assessments. These are the accommodations the agency has determined are reasonable and do not impose undue hardship when requested by a pregnant employee. In the EEOC summary of key PWFA provisions, these include:
- Allowing the employee to carry or keep water nearby and drink as needed
- Allowing additional restroom breaks as needed
- Allowing an employee whose work requires standing to sit, and whose work requires sitting to stand, as needed
- Allowing breaks to eat and drink as needed
For these four accommodations, documentation is not required. If an employer denies one of these requests without doing an individualized assessment and without showing specific undue hardship, then it is almost definitely a PWFA violation. If, upon request for these accommodations, an employer decides to put the employee on leave, the employer should be prepared to face legal consequences.
The EEOC has developed a listing of potential reasonable accommodations that may be provided to the disabled employee during the time of her pregnancy, including but not limited to:
- temporary reassignment
- modification or adjustment of job duties
- shift changes to attend prenatal appointments
- modification of work hours with telework and other remote-conferencing arrangements
- ergonomic adjustments
- leave for the purpose of recuperating from pregnancy or miscarriage.
Where the PDA and PWFA Operate Differently
Both the Pregnancy Discrimination Act and the Pregnant Workers Fairness Act pertain to issues that exclusively affect women, but these two instruments operate on two different principles and belong to two different legal spheres. This distinction is the reason why female employees must be familiar with the variations of the two laws. Applying them incorrectly will lead to a skewed outcome.
With the enactment of the Pregnancy Discrimination Act in 1978, employers could no longer discriminate against employees because of their pregnancy. Under the PDA, pregnant workers should receive the same rights and responsibilities as all other employees. Keep in mind that certain exemptions exist. If an employer offers light duty to workers who are hurt at work, then it has to offer comparable treatment to pregnant employees with similar restrictions. The PDA uses a comparison standard and focuses on whether the employer is treating pregnancy any differently from other conditions.
Meanwhile, the PWFA sets up its requirement to provide an accommodation. The PWFA is not dependent on whether the employer already treats other people in a certain way. A pregnant employee doesn’t have to point to a comparable coworker who already got accommodations before making a PWFA claim.
The practical consequence is that an employer cannot successfully challenge a PWFA accommodation claim by arguing that it also denies accommodation to non-pregnant workers with fairly similar conditions. The PWFA and the PDA are separate legal theories. Both of them often show up at the same time and each one comes with its remedies plus a different enforcement pathway.
The Leave Trap: When Employer “Help” Becomes a Violation
One of the most significant yet least understood aspects of the PWFA is its clear prohibition against pushing employees onto leave when another reasonable accommodation could help them continue working. This scenario is where many of the earliest PWFA enforcement cases have come from.
A common employer move when someone asks for a pregnancy accommodation is to put the employee on FMLA leave or short-term disability leave. From the employer side, it can seem like a careful, almost protective decision. But under the PWFA, the action is not sufficient.
Leave should be treated as a last-resort accommodation. It is only appropriate when no other reasonable accommodation is available or when none would allow the employee to perform the essential functions of the role.
The EEOC’s enforcement priorities in 2024 and going forward basically mirror this same pattern. Employers who treat leave as the simplest route for accommodation requests face higher legal danger.
Documenting and Responding to Accommodation Requests
When a pregnant employee makes an accommodation request, what they say in the moment and what they later document are important for any follow-up enforcement action.
The PWFA doesn’t require a perfect formal written request. If the employee tells a supervisor that morning sickness is making it hard to reach the job by a set start time, that is usually legally enough to trigger the employer’s obligation to engage in the interactive process
That said, having written records is still very helpful for the employee. When a dispute arises, it may help with future arguments if history is made available in the form of a brief email outlining the request, the date and time it was made, and the intended recipient. Employees should strive to document the following details:
- The date and substance of the accommodation request, including who got it first
- The employer’s response, including any denial, delay, or offer of leave instead of accommodation
- Any later communications about the request, including any verbal conversations, but noted in writing shortly afterward
- Every negative employment action resulting from submitting an accommodation request, including a change in schedules, reduction of hours, a poor performance evaluation, demotion, or termination
A charge will need to be filed with the EEOC within 180 days if there is an alleged violation. In states that have their fair employment practice agency, it’s often 300 days. The EEOC online filing portal is at publicportal.eeoc.gov.
Filing before the deadline is important. It helps preserve the right to pursue additional legal action. The clock starts from the date of each discrete violation, so a pattern involving multiple denials or separate adverse actions can create multiple deadlines.
The Standard Is Engagement, Not Removal
Since the implementation of the PWFA in 2023, which later saw its strict regulations implemented in June 2024, the legal standards protecting pregnant employees have materially changed. The big change is that accommodation is now a standalone duty, not something that depends on comparing her to other workers. Simply putting the employee on leave does not count as completing the process. Accommodation requests can’t be evaded by claiming undue hardship unless the employer shows it through the interactive process too.
The employers at the highest PWFA risk are usually not the ones openly hostile, or at least not in the obvious way. It’s more the employers whose handling of accommodation requests is procedurally thin. These employers use every excuse to get out of discussing possible accommodations, present leave as the only available option, and flatly ignore any accommodation request. If a worker has some knowledge of how her rights are violated during pregnancy, she can tell whether the response given is what is supposed to be given under the law or not.
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