The Equal Employment Opportunity Commission (EEOC) has initiated enforcement of the Pregnant Workers Fairness Act (PWFA) following the release of its final rule and interpretative guidance in April 2024. We previously provided a comprehensive recap of the PWFA, the EEOC’s final rule and guidance and key takeaways for employers here and here. Last month, the EEOC filed its first three lawsuits against employers under the PWFA and announced a settlement against a fourth employer resolving a pregnancy discrimination charge where the employer terminated the employee after she requested an accommodation to attend medical appointments. These matters serve as a stark reminder to employers of their obligations under the PWFA and the EEOC’s intent to enforce those obligations.

September 10, 2024: EEOC v. Wabash National Corporation

In a lawsuit filed on September 10, 2024 in the Western District of Kentucky, the EEOC alleges that a national producer of semi-trailers and other commercial trucking equipment violated the PWFA when it failed to accommodate an employee’s known pregnancy-related limitation, despite its purported offer of comparable accommodations to non-pregnant workers with similar limitations. According to the EEOC, the employer: (1) denied a pregnant assembly line worker’s request to transfer to a role that did not require lying on her stomach, (2) failed to engage in the interactive process to identify a potential alternative accommodation for the employee’s condition, (3) required the employee either take unpaid leave or return to her position without modification, and (4) unlawfully required medical documentation from the employee, leading to the employee resigning from employment approximately eight months following the alleged failure to accommodate and request for medical documentation.

September 11, 2024: EEOC Settlement with ABC Pest Control, Inc. 

On September 11, 2024, the EEOC announced a settlement resolving a discrimination charge alleging an employer terminated a pregnant employee after she requested a reasonable accommodation to attend monthly medical appointments related to her pregnancy. As part of the conciliation agreement, the employer will be required to (1) pay $47,480.00 in damages to the former employee, (2) appoint an EEO coordinator, (3) revise its employment policies to include reasonable accommodations under the PWFA, (4) provide relevant training to management and non-management employees, and (5) provide quarterly reports on requests for accommodation and complaints of discrimination to the EEOC.
September 26, 2024: EEOC v. Polaris Industries, Inc. and EEOC v. Urologic Specialists of Oklahoma, Inc.

September 26, 2024: EEOC v. Polaris Industries, Inc. and EEOC v. Urologic Specialists of Oklahoma, Inc.

On September 26, 2024, the EEOC announced the filing of two additional lawsuits against two companies to enforce the PWFA and the Americans with Disabilities Act (ADA) in the Northern Districts of Alabama and Oklahoma. Both lawsuits involve an employer’s alleged failure to accommodate an employee because of their pregnancy or related condition. 

In EEOC v. Polaris, the EEOC claimed that the PWFA and ADA were violated when (1) the employer refused to excuse a pregnant employee’s absences for pregnancy-related conditions and medical appointments, including requiring her to work mandatory overtime despite the employee’s healthcare provider’s restrictions that limited her from working over forty hours a week, (2) the employer docked “attendance points” against the employee, (3) the employer warned the employee that she would be terminated if she required another point, and (4) ultimately the employee resigned as a result of the employer’s actions.

In EEOC v. Urologic Specialists of Oklahoma, Inc., the EEOC alleged that a specialty medical practice violated the PWFA and ADA when (1) it did not allow a medical assistant to take breaks, to sit during shifts or to work on a part-time basis, each of which her physician said was necessary to “protect her health” during the final trimester of her high risk pregnancy, and (2) it instead required the employee take unpaid leave, and (3) it terminated the employee’s employment after she notified the employer that she would not return to work if she was not provided with guaranteed breaks to express breastmilk.

Two Important Employer Takeaways From These Cases: 

Although these cases were filed in September and remain in early stages, and while we await further details and information regarding the employers’ defenses, the EEOC’s allegations are instructive for employers as they highlight two key points that employers should keep in mind about the PWFA.

• The PWFA prohibits employers from placing a pregnant employee or an employee impacted by pregnancy, childbirth or related medical conditions on a leave of absence (paid or unpaid) when a reasonable accommodation is available. The EEOC has provided suggestions for potential alternative accommodations, like allowing an employee to sit or take breaks – which we discussed in our previous post here. 
• The PWFA requires employers engage in the “interactive process” to determine whether the requested accommodation (or an alternative accommodation) is feasible. Although an employer is not required to provide the requested accommodation, an employer must be reasonable in its engagement of the interactive process and may not unreasonably deny or force an accommodation. For example, in the Wabash case, the EEOC alleged that the employee was able to perform certain tasks that did not require “extensive bending” or lying on her stomach, however, the company placed the employee on leave without engaging in the interactive process, “which constitute[s] a forced accommodation in violation of the PWFA.” Furthering this point, the EEOC General Counsel Karla Gilbride recently stated that, “When employers apply inflexible policies that drive pregnant workers out of the workplace rather than engaging in th[e] interactive process, the EEOC will step in to defend workers’ rights under [the PWFA].”

What Should Employers Do Now?

1. Make sure policies and trainings are in compliance with the PWFA. If employers have not reviewed and adjusted their accommodation review process, it is critical employers do so now. Recently, in highlighting the key goals of the EEOC under the PWFA, EEOC Tampa Field Office Director Tamra Schweiberger stated that, “[i]t is imperative that all employers look at their policies and implement changes to ensure pregnant employees are protected.” Employers should also ensure that employee trainings cover the PWFA and any updates.
2. Train management employees and Human Resources Department. These employees should be aware of the ins and outs of the PWFA and the necessary steps that must be taken in an effort to accommodate an employee impacted by pregnancy, childbirth or related medical conditions. An employer's Human Resources Department and Management employees should also be aware of limitations surrounding requests for medical documentations. The PWFA requires employers to be "reasonable" in requesting medical documentation relating to an accommodation request, and employers cannot seek documentation when the physical or medical condition and accommodation are "obvious" or the employer already has sufficient information to determine whether the employee has a condition related to pregnancy, childbirth or related medical conditions. 
3. Human Resources should also be made aware of the EEOC's suggested accommodations, which may include a suspension of a job function. 
4. Critically, the PWFA is broader than the ADA and a company's Human Resources Department should be aware of those differences. For example, the PWFA provides that an employee may still be "qualified" even if they cannot perform an essential function of their job for a temporary or limited timeframe. Ultimately, this may mean it is harder for an employer to demonstrate an accommodation imposed an "undue hardship" on its business. Furthermore, the PWFA, unlike the ADA, does not have a threshold for the severity of the physical or medical condition related to the accommodation request. 
5. Be prepared or continue to engage in the interactive process. The PWFA requires employers to conduct an interactive process with employees (or applicants) who are seeking accommodation. If they have not already, employers should ensure that they have established such a process for these requests both as a best practice and to comply with the law
6. Be aware of applicable state and local laws. Employers should also be aware of any state and local laws that protect pregnant workers which may be applicable to their workforce to ensure full compliance. 

Employers should proceed with caution when addressing and responding to any requests for workplace accommodations from a pregnant employee, and specifically should contact legal counsel before denying a pregnancy or childbirth-related accommodation to an employee or taking any adverse employment action against an employee who has requested such an accommodation.