Published December 9, 2022
As the conclusion of the lame-duck Congress approaches, there is mounting pressure on the Senate to pass the Pregnant Workers Fairness Act (PWFA). On its face, the PWFA fills a gap in employment law, requiring that employers give women (though the act fails to use the word “woman” throughout) reasonable accommodations for “pregnancy, childbirth, or related medical conditions” unless such an accommodation would pose an undue hardship on the employer’s business.
History of Pregnancy Protections in the Workplace
When the Civil Rights Act was passed in 1964, many assumed that Title VII, prohibiting discrimination in employment based on sex, covered pregnancy and childbirth, since the capacity to get pregnant and bare children is something inherent in being a female and part of what makes women distinct from men. In the 1970s, however, the Supreme Court ruled that sex discrimination did not cover pregnancy discrimination. (What a far cry from the Supreme Court’s more recent Bostock decision expanding Title VII’s sex-discrimination protections well beyond biological sex distinctions to sexual orientation and transgender status!)
Congress responded to the Supreme Court by passing the Pregnancy Discrimination Act of 1978 (PDA) to amend Title VII and to clarify that “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.” The PDA included an abortion exclusion to ensure that no employer would be required “to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion.” The act clarified that it shall not “preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.”
Missing from the PDA is any affirmative duty of employers to accommodate a pregnant or post-partum mother. Pregnancy and childbirth affect a woman physically and can result in medical complications or progressive physical limitations that impact her at work.
The Americans with Disabilities Act of 1990 (ADA) provides a duty to accommodate in the workplace, but pregnancy itself is not considered a disability under the ADA, and few pregnancy- or childbirth-related medical issues qualify for disability-accommodation protections.
The PWFA would fill this gap and give women needed workplace accommodations. However, in its current form, the act raises major red flags, especially as it relates to abortion-related accommodations and religious-liberty protections.
Red Flags in the PWFA
The PWFA is a strangely drafted bill (perhaps strategically so for some). Instead of amending Title VII as the PDA did to add a pregnancy-accommodation requirement, the act would be a stand-alone law. The act’s drafters picked provisions they liked in the Title VII and ADA frameworks while discarding those they did not like, such as Title VII’s religious-organization exemption, and adding additional provisions not in either Title VII or the ADA. The act also gives the Equal Employment Opportunity Commission (EEOC) binding rulemaking authority, a power the agency does not possess under Title VII and the PDA.
In effect, the act would create a patchwork of nondiscrimination protections in the workplace that will lead to practical problems as employers and employees try to navigate the varying legal obligations and protections for pregnant women under the PDA and the PWFA.
An open question under the act is how expansively “related medical conditions” would be interpreted by the EEOC and the courts. EEOC’s (non-legally binding) pregnancy guidance states: “Title VII protects women from being fired for having an abortion or contemplating having an abortion.” Courts have generally found that abortion is a pregnancy-related medical condition and that discrimination based on abortion is sex discrimination under the PDA, aside from the PDA’s abortion exclusion for health-insurance benefits. Indeed, prominent abortion groups, such as Planned Parenthood and NARAL Pro-Choice America, are among those who advocate support for the PWFA.
It is almost certain that “related medical conditions” will be interpreted to include abortion, requiring all employers, even pro-life or religious organizations, to provide abortion accommodations. The federal government should not force any employer — pro-life, religious, or otherwise — to be in the business of facilitating abortion.
Additional obligations under the PWFA not found in Title VII or the PDA are that employers are prohibited from coercing, intimidating, threatening, or interfering with “any individual in the exercise or enjoyment of” any right secured under the PWFA, which would include any abortion-related accommodations. This broad language could be used to require promotion of abortion in the workplace and chill pro-life and religious organizations, exposing employers in violation of the PWFA to potential EEOC investigations, expensive lawsuits, and civil penalties.
Further, it is likely that some will claim that the PWFA and any associated EEOC regulations preempt state abortion laws. The Biden administration has made related state preemption arguments under other federal laws and regulations, such as DOJ’s “misdirected” Emergency Medical Treatment & Labor Act (EMTALA) lawsuit seeking to enjoin Idaho’s law protecting unborn life and the Department of Veterans Affairs “lawless” interim final rule allowing the VA to provide taxpayer-funded abortions, even in pro-life states.
In a weak attempt to appease those who are concerned about abortion-related accommodations, the PWFA provides that it would not require “employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment or to affect any right or remedy available under any other Federal, State, or local law with respect to any such payment or coverage requirement.” This so-called “protection” would not apply to any non-health-plan abortion-related accommodations, and it is highly unlikely that an accommodation of an employer changing its health plan would be considered both reasonable and not an undue burden on the employer.
Democratic senator Bob Casey stated on the Senate floor: “Under the Pregnant Workers Fairness Act, the Equal Opportunity Employment Commission, the EEOC, could not — could not — issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortions in violation of state law.” Republican senator Bill Cassidy opined: “Is it possible that this law would permit someone to impose their will upon a pastor, upon a church, upon a synagogue, if they have religious exemptions? The answer is, absolutely no. . . . The Title VII exemption, which is in federal law, remains in place. It allows employers to make employment decisions based on firmly held religious beliefs. This bill does not change this.” It is disingenuous to claim that the act will not require abortion accommodations and will provide appropriate religious-liberty protections while refusing to amend the act to say just that.
While Title VII’s religious protections remain untouched, those protections would not apply to the PWFA or its accommodation obligation. For those who think the Religious Freedom Restoration Act (RFRA) would provide protections for any religious organizations, they should think again. Some courts (wrongly, as I argued here) have held that RFRA does not apply in suits between private parties, i.e., any lawsuit EEOC does not initiate. This leaves employers with the First Amendment free-exercise clause, which apart from the ministerial exception’s application to “certain key employees,” provides under current Supreme Court case law only minimal religious protections for neutral laws of general applicability. In short, existing religious-liberty protections are insufficient.
Many tout the act’s bipartisan support as a reason to gloss over these legitimate concerns. Support for the PWFA across the parties makes sense considering it helps pregnant women in the workplace. However, many Republicans who voiced support of the PWFA likely did not (or do not) know about the anti-life and anti-religious-liberty concerns with the act.
If the Democrats agreed to include an abortion-neutrality provision and protections for religious organizations, I suspect the act would pass in a heartbeat. But at the end of the day, Democrats appear willing to sacrifice workplace protections for pregnant women and mothers on the altar of abortion. Republicans and pro-life friends should not be so easily duped, or at least honestly weigh the costs along with the benefits of the act.
Congress should leave abortion out of the PWFA and provide accommodation protections for pregnant women in the workplace — a goal that is truly bipartisan.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on 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.