Published September 7, 2023
In a triumph for women’s rights and women’s equality in the workplace, Congress passed the Pregnant Workers Fairness Act (PWFA) with bipartisan support in December 2022. The law requires employers to provide their employees reasonable accommodations for “pregnancy, childbirth, or related medical conditions” unless the accommodation poses undue hardship on the employer.
But now, a Democrat-controlled federal agency is undermining this much-needed law to advance its own agenda, erasing women in the process.
One of the bill’s cosponsors, Sen. Bill Cassidy (R-La.), explained that the PWFA was meant to help ensure “a safe environment for pregnant women and their unborn children in the workplace,” calling the Act “pro-mother” and “pro-baby.”
Congress directed the Equal Employment Opportunity Commission—the federal agency charged with enforcing employment nondiscrimination laws, such as the PWFA—to issue regulations under the Act and provide examples of reasonable accommodations.
Inexplicably, in the EEOC’s newly proposed regulations, which are open for public comment until October 10, the Commission avoided referencing the very workers that the law protects: women.
Apart from a few places, the EEOC used generic terms like “worker” and “employee” to refer to women who are pregnant. When it did use the term “women,” it felt the need to explain why. Footnote 22 states: “when using language from specific sources, EEOC uses the language of that source (e.g., ‘women’ or ‘pregnant women’).”
Why did the EEOC go out of its way to avoid using the term “women” in regulations for a pro-woman law?
Women have long faced discrimination in employment, whether from employers refusing to hire women, paying women less than men, or firing mothers when they became pregnant.
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act in 1978, makes it unlawful for employers to discriminate on the basis of sex, including pregnancy. The law explicitly acknowledges women, stating that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” The law also mentions “the life of the mother” when discussing insurance coverage for abortion.
Missing from these protections, however, was a requirement that employers provide women common-sense workplace accommodations when they become pregnant or give birth to a child. Without legal protections, pregnant women have been refused even simple accommodations from their employers, such as additional bathroom breaks, a stool to sit on, and access to water.
Enter the Pregnant Workers Fairness Act, which closed that longstanding gap in employment nondiscrimination law.
But the EEOC’s proposed regulations turn this fundamentally pro-woman law on its head.
Throughout the proposal, the EEOC uses the plural pronouns “they” and “their” to refer to a singular employee.
For example, “Ava, a pregnant police officer, asks their union representative for help getting a larger size uniform and larger size bullet proof vest in order to cover their growing pregnancy”; “If a worker has already provided documentation stating that because of their recent cesarean section, they should not lift over 20 pounds for two months”; “Arden tells the human resources staffer, Stanley, that Arden is dealing with complications from their recent childbirth and may need time off for doctor’s appointments during their first few weeks at work” (emphasis mine).
The proposed regulations are replete with similar examples.
One might think the EEOC is merely using “they” to refer to a singular individual of unspecified sex instead of the (admittedly clunky) phrase “he or she” that it has used in other guidance. But there is no ambiguity over the sex of an employee who can get pregnant, have a cesarean section, or experience childbirth. Despite what some science deniers may claim these days, only women can get pregnant, have cesarean sections, and give birth to children.
By failing to use female pronouns to refer to pregnant workers, the EEOC is denying the biological reality that females, and only females, have the capacity for pregnancy and childbirth. This distinction is worth celebrating and protecting in the American workplace, as the PWFA recognizes.
This move by the EEOC follows a slew of efforts by the Biden administration to erase women, allegedly in the name of “inclusion” and “diversity.” For instance, the White House’s 2022 fiscal year budget replaced the term “mothers” with “birthing people.” This March, during Women’s History Month, First Lady Jill Biden and Secretary of State Anthony Blinken awarded a biological male an International Women of Courage Award on International Women’s Day. In July, the Department of Health and Human Services’ Centers for Disease Control and Prevention published guidance endorsing biological men “chestfeeding” infants.
One is left to wonder whether male employees “chestfeeding” babies is what the EEOC has in mind as something employers across the country are required to accommodate. It would be strange times indeed if employers could violate the Pregnant Workers Fairness Act for failing to accommodate an employee who was never—and could never—become pregnant.
In an age when a Supreme Court nominee is unable to define the word “woman,” it is all the more important for the federal agency tasked with preventing and remedying pregnancy discrimination in the workplace to acknowledge and recognize the female sex by the language it uses.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. She is a former attorney adviser at the Equal Employment Opportunity Commission.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.
