Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers

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Pregnancy and Labor: An Overview of Federal
~~June 17, 2021~~July 3, 2023
Laws Protecting Pregnant Workers
April J. Anderson
~~The~~Several different federal laws protect workers from discrimination based on pregnancy. The Legislative Attorney oldest of these, the Pregnancy Discrimination Act (PDA) Pregnancy Discrimination Act (PDA), generally protects job applicants and generally protects job applicants and ~~employees from~~
~~Legislative Attorney~~
~~adverse action—~~ employees from adverse action—for example, firing, demotion, refusal to hire, or forced leave—because of pregnancy or firing, demotion, refusal to hire, or forced leave—because of pregnancy or

related conditions. related conditions. ItThe PDA also also ~~bars~~addresses harassment based on harassment based on For a copy of the full report, pregnancy and bans retaliation against pregnancy and bans retaliation against
workers for making workers for making ~~a complaint~~complaints about pregnancy about pregnancy please call 7-5700 or visit discrimination. Pregnancy-related conditions discrimination. Pregnancy-related conditions

can include fertility treatments, medical can include fertility treatments, medical www.crs.gov. complications, delivery, postpartum conditions, and complications, delivery, postpartum conditions, and
lactation. The PDA was enacted as an amendment to Title VII of the Civil Rights Act of 1964, which protects against sex lactation. The PDA was enacted as an amendment to Title VII of the Civil Rights Act of 1964, which protects against sex
discrimination (as well as certain other forms of discrimination) in employment. discrimination (as well as certain other forms of discrimination) in employment.
As construed by the Supreme Court, the PDA does not generally require employers to make changes in working conditions to As construed by the Supreme Court, the PDA does not generally require employers to make changes in working conditions to
accommodate pregnant workers unless accommodate pregnant workers unless ~~accommodations are provided~~employers provide accommodations to other similarly situated nonpregnant workers. to other similarly situated nonpregnant workers. ~~Thus,~~
~~if an employer never (or hardly ever) allows work adjustments for nonpregnant employees, it generally is not legally required~~
~~under the PDA to accommodate a pregnant employee. Therefore,~~So while employers cannot fire workers for being pregnant, while employers cannot fire workers for being pregnant, ~~the~~
~~law does~~this statute (depending on the facts) may not require them to make workplace changes (e.g., scheduling flexibility, an extra bathroom break) simply because not require them to make workplace changes (e.g., scheduling flexibility, an extra bathroom break) simply because
~~the employee’s~~employees’ demands are demands are pregnancy-related. The Pregnant Workers Fairness Act (PWFA), passed in 2022 and effective June 27, 2023, mandates additional protections for pregnant workers. Modeled on the Americans with Disabilities Act (ADA), it requires employers to modify workplace conditions where needed to accommodate pregnancy-related conditions as long as an accommodation is reasonable and does not present an undue hardship to the employer. The PWFA requires a reasonable accommodation, after a case-specific assessment, even if a pregnancy-related condition does not amount to a disability, and even if the accommodation includes reassignment of an essential job function. Relief from an essential job function is only required, however, if it is temporary. In addition, under the PWFA, an employer may not require an employee to take leave if a reasonable accommodation would allow her to keep working. Some pregnant people face pregnancy-related impairments serious enough to satisfy the ADA’s definition of a “disability” and may, along with any PDA or PWFA claims, bring ADA claims for accommodations. Separately, many workers can invoke the Family and Medical Leave Act (FMLA) for unpaid leave for pregnancy-related medical needs. After childbirth, provisions of the Fair Labor Standards Act (FLSA) entitle most nursing mothers to appropriate breaks and accommodations for expressing breast milk. Preceding the passage of the PWFA, many advocates and legislators proposed expanding legal protections for pregnancy. Proposals included new pregnancy accommodation requirements (modeled on disability law), antidiscrimination measures (expanding current statutes), and leave entitlements (in line with many analogous mandates for reemployment rights or leave entitlements to protect workers engaged in endeavors such as military service). The PWFA focused on this first approach: accommodations. In addition, many states have strengthened rights for pregnant workers in recent years, and the PWFA does not preempt those laws when they offer greater protection. Congressional Research Service link to page 4 link to page 4 link to page 5 link to page 7 link to page 9 link to page 10 link to page 12 link to page 13 link to page 15 link to page 17 link to page 18 link to page 20 link to page 23 link to page 23 link to page 23 link to page 24 link to page 25 link to page 26 link to page 28 link to page 29~~pregnancy-related.~~
~~In some circumstances, pregnant workers may invoke federal statutes in addition to the PDA when they seek workplace~~
~~alterations or leave. The Americans with Disabilities Act (ADA) mandates modifications for those women who face~~
~~pregnancy-related impairments significant enough to satisfy the ADA’s definition of a “disability.” Some workers can invoke~~
~~the Family and Medical Leave Act (FMLA) for unpaid leave related to childbearing, but not all pregnant workers qualify as~~
~~having a disability under the ADA. Some workers and some employers fall outside the FMLA’s purview.~~
~~Some advocates and legislators have proposed expanding legal protections afforded to pregnant workers. These proposals~~
~~may take the form of amendments to existing laws, stand-alone measures, new pregnancy accommodation requirements, or~~
~~leave entitlements. Many states have enacted additional pregnancy accommodations in recent years. A federal pregnancy~~
~~accommodation proposal, the Pregnant Workers Fairness Act, passed the House of Representatives in 2021, after an earlier~~
~~version of the legislation passed by that body in 2020. This scheme largely mirrors the structure of the ADA, requiring case-~~
~~by-case assessment of reasonable accommodations for pregnant workers. The House also passed the Equality Act in 2021.~~
~~That bill would provide that prohibitions on sex discrimination in several federal statutes include pregnancy, childbirth, and~~
~~related conditions.~~
~~In addition to the disability regime like that of the ADA, some have proposed leave-based models for potential legislation,~~
~~under which pregnant workers must be allowed job-protected leave. Numerous similar statutes exist outside of the pregnancy~~
~~context, using accommodations, reemployment rights, or leave entitlements to protect workers’ engagement in such~~
~~endeavors as voting, military service, religious exercise, or participation in the legal system.~~
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Introduction
Federal laws have protected pregnant workers for decades. These laws generally bar employers Federal laws have protected pregnant workers for decades. These laws generally bar employers
from taking adverse action against a worker because of pregnancy. from taking adverse action against a worker because of pregnancy. ~~They do not generally~~Historically, these laws did not typically require require
employers to make workplace changes to accommodate pregnancy, unless such accommodations employers to make workplace changes to accommodate pregnancy, unless such accommodations
~~are~~were provided to similarly situated provided to similarly situated, nonpregnant workers, or unless pregnancy impairments amounted to a disability. The Pregnant Workers Fairness Act (PWFA), passed in 2022 and effective June 27, 2023, requires accommodations for most pregnant workers. The Equal Employment Opportunity ~~nonpregnant workers. While pregnancy is not a disability per se,~~
~~protections for workers with disabilities may apply to women who face certain pregnancy-related~~
~~medical conditions.1~~
~~The Equal Opportunity Employment~~ Commission (EEOC), the federal entity Commission (EEOC), the federal entity ~~primarily~~mainly charged charged
with monitoring compliance and enforcing antidiscrimination lawswith monitoring compliance and enforcing antidiscrimination laws in employment, reports that it receives , reports that it receives
thousands of pregnancy discrimination complaints each year.thousands of pregnancy discrimination complaints each year.~~2 Most~~1 The majority of charges of pregnancy charges of pregnancy
discrimination discrimination ~~include allegations~~allege that individuals faced termination based on pregnancy. that individuals faced termination based on pregnancy.32 Other Other
charges include claims that pregnant workers endured harsher discipline, suspensions pending charges include claims that pregnant workers endured harsher discipline, suspensions pending
receipt of medical releases, suggestions that they undergo an abortion, and involuntary leave.receipt of medical releases, suggestions that they undergo an abortion, and involuntary leave.43
This report provides an overview of laws protecting pregnant workers, including their substantive This report provides an overview of laws protecting pregnant workers, including their substantive
provisions, legislative history, practical considerations, judicial interpretation, and limitations. In provisions, legislative history, practical considerations, judicial interpretation, and limitations. In
addition, this report summarizes proposed addition, this report summarizes proposed ~~changes for~~ pregnancy protections and describes other pregnancy protections and describes other
employment laws that may serve as models for potential legislation. employment laws that may serve as models for potential legislation.
Federal Law Prior to the Pregnancy
Discrimination Act
~~Prior to~~Before the enactment of the Pregnancy Discrimination Act (PDA), federal law did not expressly the enactment of the Pregnancy Discrimination Act (PDA), federal law did not expressly
address address the discriminatory treatment of pregnant workers. The primary federal statute addressing discriminatory treatment of pregnant workers. The primary federal statute addressing
discrimination in the workplace, Title VII of the Civil Rights Act of 1964, discrimination in the workplace, Title VII of the Civil Rights Act of 1964, ~~made~~makes it unlawful to it unlawful to
discriminate “against any individual with respect to his compensation, terms, conditions, or discriminate “against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.”privileges of employment, because of such individual’s . . . sex.”54 Prohibited actions include Prohibited actions include
discharge, discrimination in pay, denial of promotion, demotion, discharge, discrimination in pay, denial of promotion, demotion, ~~closer scrutiny,~~ harsher harsher
discipline, suspensions, and forced leave.discipline, suspensions, and forced leave.~~6 In addition to~~5 Along with adverse actions, Title VII bars adverse actions, Title VII bars
harassment because of sex—that is, harsh treatment harassment because of sex—that is, harsh treatment ~~that is~~ severe or pervasive enough to alter the severe or pervasive enough to alter the

~~1 See infra notes 160-178.~~
~~2 Pregnancy Discrimination Charges FY 2010 - FY 2019,~~ ~~U.S. Equal Employment Opportunity Commission~~employee’s terms and conditions of employment.6 Title VII also protects workers from retaliation when they oppose discrimination, 1 U.S. EQUAL EMP. OPPORTUNITY COMM’N, PREGNANCY DISCRIMINATION CHARGES FY 2010–FY 2021
[hereinafter EEOC], https://www.eeoc.gov/[hereinafter EEOC], https://www.eeoc.gov/~~statistics~~data/pregnancy-discrimination-charges-/pregnancy-discrimination-charges-fyFY-2010--2010-~~fy-2019~~FY-2021 (last visited (last visited
June June ~~4, 2021).~~
~~3 EEOC~~7, 2023). 2 U.S. EQUAL EMP. OPPORTUNITY COMM’N, ENFORCEMENT GUIDANCE ON PREGNANCY DISCRIMINATION AND RELATED ISSUES, No. 915.003 (June 25, 2015) , ENFORCEMENT GUIDANCE ON PREGNANCY DISCRIMINATION AND RELATED ISSUES, No. 915.003 (June 25, 2015)
[hereinafter EEOC Enforcement Guidance], https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-[hereinafter EEOC Enforcement Guidance], https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-
discrimination-and-related-issues (last visited June discrimination-and-related-issues (last visited June ~~4, 2021~~7, 2023). ).
43 Id.; Joan Williams, .; Joan Williams, Written Testimony of Joan Williams Professor of Law UC Hastings Foundation Chair Director,
Center for Worklife Law – Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving
Responsibilities, ~~Meeting of~~ , U.S. EQUAL EMP. OPPORTUNITY COMM’N (February 15, 2012February 15, 2012~~, EEOC~~), http://www.eeoc.gov/eeoc/meetings/2-15-12/williams.cfm, http://www.eeoc.gov/eeoc/meetings/2-15-12/williams.cfm ~~(last~~
~~visited June 4, 2021).~~
5. 4 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer to fail or refuse to hire or to 42 U.S.C. § 2000e-2(a)(1) (“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, 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 race, color, religion, sex, or national origin.”); conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”);
EEOC EEOC ~~Enforcement Guidance~~ENFORCEMENT GUIDANCE, , supra no note 3.
~~6 EEOC Enforcement Guidance~~2. 5 EEOC ENFORCEMENT GUIDANCE, , supra no note 3.2. 6 Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (continued...)
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~~employee’s terms and conditions of employment.7 Workers who oppose discrimination,~~ file a file a
discrimination complaint, or participate in the complaintdiscrimination complaint, or participate in the complaint ~~process are protected from retaliation.8~~.7 If If
they prevail on a claim of discrimination or retaliation, employees may seek equitable relief and they prevail on a claim of discrimination or retaliation, employees may seek equitable relief and
damagesdamages, including back pay and punitive damages. including back pay and punitive damages.98
Because (in its original form) Title VII did not mention pregnancy, courts were left to determine Because (in its original form) Title VII did not mention pregnancy, courts were left to determine
how the prohibition on sex discrimination applied to pregnant workers. In 1976, the Supreme how the prohibition on sex discrimination applied to pregnant workers. In 1976, the Supreme
Court took up the issue in Court took up the issue in ~~Gilbert v. General Electric~~General Electric Co. v. Gilbert. In that case, General Electric offered a . In that case, General Electric offered a
benefits plan to compensate employees unable to work because of illness or injury.benefits plan to compensate employees unable to work because of illness or injury.109 The plan The plan
excluded pregnancy and related conditions, but not other medical conditions, from coverage.excluded pregnancy and related conditions, but not other medical conditions, from coverage.1110
After a class of women employees presented claims for pregnancy-related medical conditions and After a class of women employees presented claims for pregnancy-related medical conditions and
challenged the plan as discriminatory, the Court held that the pregnancy exclusion did not violate challenged the plan as discriminatory, the Court held that the pregnancy exclusion did not violate
Title VII because it did not treat men and women differently.Title VII because it did not treat men and women differently.1211 The benefits plan did not divide The benefits plan did not divide
employees into groups of men and groups of women for separate treatment, as the Court saw it; employees into groups of men and groups of women for separate treatment, as the Court saw it;
instead, the plan separated employees into groups of pregnant and nonpregnant people.instead, the plan separated employees into groups of pregnant and nonpregnant people.1312 The The
Court said that “[n]ormal pregnancy is an objectively identifiable physical condition with unique Court said that “[n]ormal pregnancy is an objectively identifiable physical condition with unique
characteristics,” and Title VII did not bar employers from excluding pregnancy from benefits characteristics,” and Title VII did not bar employers from excluding pregnancy from benefits
coverage “on any reasonable basis.”coverage “on any reasonable basis.”~~14 It~~13 The outcome might be different if the employer intended to target might be different if the employer intended to target
women for mistreatment, the Court acknowledged, but it concluded that General Electric’s women for mistreatment, the Court acknowledged, but it concluded that General Electric’s
decision to exclude pregnancy was not pretext for sex discrimination.decision to exclude pregnancy was not pretext for sex discrimination.1514
The Pregnancy Discrimination Act
In response to In response to Gilbert, Congress passed the Pregnancy Discrimination Act as an amendment to , Congress passed the Pregnancy Discrimination Act as an amendment to
Title VII. The PDA did not alter Title VII’s Title VII. The PDA did not alter Title VII’s ~~substantive~~ provisions on remedies or enforcement.provisions on remedies or enforcement.16
Instead, the PDA added two phrases to Title VII’s definitions section clarifying that pregnancy Instead, the PDA added two phrases to Title VII’s definitions section clarifying that pregnancy discrimination is is
a form of sex discrimination.a form of sex discrimination.15 The first phrase of the PDA adds pregnancy The first phrase of the PDA adds pregnancy ~~into~~to the list of the list of
categories protected from discrimination, declaring that “[t]he terms ‘because of sex’ or ‘on the categories protected from discrimination, declaring that “[t]he 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 basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or

~~7 Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999). See also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21~~
(1993) (noting discrimination “includes requiring people to work in a discriminatorily hostile or abusive (1993) (noting discrimination “includes requiring people to work in a discriminatorily hostile or abusive
environment”); environment”); ~~Harassment, EEOC~~U.S. EQUAL EMP. OPPORTUNITY COMM’N, HARASSMENT, https://www.eeoc.gov/harassment (last visited June , https://www.eeoc.gov/harassment (last visited June ~~4, 2021).~~
87, 2023). 7 42 U.S.C. § 2000e-3 42 U.S.C. § 2000e-3(a); EEOC ENFORCEMENT GUIDANCE~~; EEOC Enforcement Guidance, supra note 3;~~ ~~Questions and Answers: Enforcement Guidance on~~
~~Retaliation and Related Issues,~~ ~~EEOC,~~ , supra note 2; U.S. EQUAL EMP. OPPORTUNITY COMM’N, QUESTIONS AND ANSWERS: ENFORCEMENT GUIDANCE ON RETALIATION AND RELATED ISSUES, https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-
guidance-retaliation-and-related-issues (last visited June guidance-retaliation-and-related-issues (last visited June ~~4, 2021~~7, 2023). ).
98 42 U.S.C. § 1981; Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529 (1999); Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529 (1999); ~~42 U.S.C. § 1981;~~ ~~Remedies for Employment Discrimination,~~
~~EEOC~~U.S. EQUAL EMP. OPPORTUNITY COMM’N, REMEDIES FOR EMPLOYMENT DISCRIMINATION, https://www.eeoc.gov/remedies-employment-discrimination (last visited June , https://www.eeoc.gov/remedies-employment-discrimination (last visited June ~~4, 2021).~~
107, 2023). 9 Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127 (1976) Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127 (1976).
~~11 Id. at 127.~~
~~12 Id. at 139.~~
~~13 Id. at 135.~~
~~14 Id.~~
~~15 Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127 (1976) at 134.~~
~~16 California~~, superseded by statute, Pregnancy Discrimination Act of 1978, Pub. L. No. 95–555, 92 Stat. 2076 (1978), as recognized in Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 284–85 (1987). 10 Id. at 127. 11 Id. at 139. 12 Id. at 135. 13 Id. at 134. 14 Id. at 134–35. 15 Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 284 Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 284-–85 (1987) (noting “the PDA reflects Congress’ 85 (1987) (noting “the PDA reflects Congress’
disapproval of the reasoning in disapproval of the reasoning in Gilbert”); ”); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S.
669, 681 (1983) (observing that “[p]roponents of the legislation stressed throughout the debates that Congress had 669, 681 (1983) (observing that “[p]roponents of the legislation stressed throughout the debates that Congress had
always intended to protect always intended to protect all individuals from sex discrimination in employment—including but not limited to individuals from sex discrimination in employment—including but not limited to
pregnant women workers”). pregnant women workers”).
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related medical conditions.” related medical conditions.”~~17 Thus~~16 In light of this language, Title VII now expressly protects covered employees and job , Title VII now expressly protects covered employees and job
applicants from discrimination, including demotion, firing, applicants from discrimination, including demotion, firing, orthe denial of denial of ~~employment~~employment, or harassment, based on based on
pregnancy.pregnancy.1817
In In ~~the~~a second phrase, the PDA requires that “women affected by pregnancy, childbirth, or related second phrase, the PDA requires that “women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related purposes, including medical conditions shall be treated the same for all employment-related purposes, including
receipt of benefits under fringe benefit programs, as other persons not so affected but similar in receipt of benefits under fringe benefit programs, as other persons not so affected but similar in
their ability or inability to work.”their ability or inability to work.”1918 Legislative history suggests that Congress intended the Legislative history suggests that Congress intended the
amendment to clarify that “distinctions based on pregnancy are per se violations of Title VII.”amendment to clarify that “distinctions based on pregnancy are per se violations of Title VII.”~~20 It~~
19 The PDA’s legislative history also suggests that, in enacting the also suggests that, in enacting the ~~PDA~~statute, Congress did not mean to single out pregnant women for , Congress did not mean to single out pregnant women for
special protection.special protection.~~21 Nevertheless~~20 On the other hand, the PDA’s requirement that pregnant women “be treated the , the PDA’s requirement that pregnant women “be treated the
same . . . as other persons not so affected but similar in their ability or inability to work” is unlike same . . . as other persons not so affected but similar in their ability or inability to work” is unlike
safeguards Title VII provides other protected groups; the statute does not use similar language safeguards Title VII provides other protected groups; the statute does not use similar language
elsewhere.elsewhere.2221 This This ~~different~~unique language has caused some confusion in the courts—most notably in language has caused some confusion in the courts—most notably in
~~assessing disparate impact claims.23~~
~~Certain pregnant employees fall outside the PDA’s protections. Title VII incorporates a number~~
~~of exemptions, and these apply to the PDA. The statute does not cover employers of fewer than~~
~~15 workers.24 Other categories of employers, including the military, many judicial employers, and~~
~~elected officials (for the employment of personal staff) lay outside the statute’s purview.25 Title~~
~~VII also allows religious institutions more leeway in employment decisions related to their~~
~~religious mission.26~~

~~17 42 U.S.C. § 2000e(k).~~
~~18 42 U.S.C. §§ 2000e(k), 2000e-2; EEOC Enforcement Guidance, supra note 3. Title VII also bars harassment because~~
~~of pregnancy.~~
~~19 42 U.S.C. § 2000e(k).~~
20assessing claims alleging disparate impact (claims that a neutral action has an unjustified discriminatory effect).22 The language in the second phrase has also led to confusion about whether being treated “the same” means that pregnant women must receive accommodations given other workers for nonpregnancy reasons,23 although accommodations claims in the future may be resolved under the PWFA as discussed below.24 Certain pregnant employees additionally fall outside the PDA’s protections. Title VII incorporates some exemptions, and these apply to the PDA. For instance, the statute does not cover employers of fewer than 15 workers.25 Other categories of employers, including military servicemembers 16 42 U.S.C. § 2000e(k). 17 Id. §§ 2000e(k), 2000e-2; EEOC ENFORCEMENT GUIDANCE, supra note 2. 18 42 U.S.C. § 2000e(k). 19 H.R. REP. NO. 95-948, at 3 (1978) (report from the Committee on Education and Labor to accompany the House H.R. REP. NO. 95-948, at 3 (1978) (report from the Committee on Education and Labor to accompany the House
version of the PDA, H.R. 6075)version of the PDA, H.R. 6075). ~~See~~; see also S. REP. NO. 95-331, at 3 (1977) (report from the Committee on Human S. REP. NO. 95-331, at 3 (1977) (report from the Committee on Human
Resources to accompanying the Senate version of the PDA, S. 995Resources to accompanying the Senate version of the PDA, S. 995~~, and~~ ) (stating that the measure was “intended to make stating that the measure was “intended to make
plain that, under title VII of the Civil Rights Act of 1964, discrimination based on pregnancy, childbirth, and related plain that, under title VII of the Civil Rights Act of 1964, discrimination based on pregnancy, childbirth, and related
medical conditions is discrimination based on sex”); medical conditions is discrimination based on sex”); Newport News~~Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S.~~
~~669, 681 (1983) (~~, 462 U.S. at 681 (discussing legislative history of PDA). discussing legislative history of PDA).
2120 S. REP. NO. 95-331, at 4 ( S. REP. NO. 95-331, at 4 (~~1977) (~~“Basic to all of these applications is that the bill, because it would operate as part of “Basic to all of these applications is that the bill, because it would operate as part of
title VII, prohibits only discriminatory treatment. Therefore, the bill does not require employers to treat pregnant title VII, prohibits only discriminatory treatment. Therefore, the bill does not require employers to treat pregnant
women in any particular manner with respect to hiring, permitting them to continue working, providing sick leave, women in any particular manner with respect to hiring, permitting them to continue working, providing sick leave,
furnishing medical and hospital benefits, providing disability benefits, or any other matter. The bill would simply furnishing medical and hospital benefits, providing disability benefits, or any other matter. The bill would simply
require that pregnant women be treated the same as other employees on the basis of their ability or inability to work.”); require that pregnant women be treated the same as other employees on the basis of their ability or inability to work.”);
H.R. REP. NO. 95-948, H.R. REP. NO. 95-948, 3-at 3–4 (“We recognize that enactment of 4 (“We recognize that enactment of ~~H.R. 6075~~ [the House version of the PDA] will reflect no [the House version of the PDA] will reflect no
new legislative mandate of the congress nor effect changes in practices, costs, or benefits beyond those intended by new legislative mandate of the congress nor effect changes in practices, costs, or benefits beyond those intended by
Title VII of the Civil Rights Act. On the contrary, the narrow approach utilized by the bill is to eradicate confusion by Title VII of the Civil Rights Act. On the contrary, the narrow approach utilized by the bill is to eradicate confusion by
expressly broadening the definition of sex discrimination in Title VII to include pregnancy-based discrimination.”). expressly broadening the definition of sex discrimination in Title VII to include pregnancy-based discrimination.”).
2221 42 U.S.C. § 2000e(k); 42 U.S.C. § 2000e(k); see also Young v. United Parcel Serv., Inc., 575 U.S. 206, 219 (2015) (noting “the meaning of Young v. United Parcel Serv., Inc., 575 U.S. 206, 219 (2015) (noting “the meaning of
the second clause is less clear” than that of the first clause). the second clause is less clear” than that of the first clause).
2322 For a discussion of this textual difference in the disparate impact context, see For a discussion of this textual difference in the disparate impact context, see infra notesnotes ~~147-155~~ ~~and~~132–139 and accompanying accompanying
text. text.
24 42 U.S.C. § 2000e(b); Pregnancy Discrimination~~, EEOC,~~ 23 See infra notes 78–130 and accompanying text. 24 See infra notes 165–192 and accompanying text. 25 42 U.S.C. § 2000e(b); U.S. EQUAL EMP. OPPORTUNITY COMM’N, PREGNANCY DISCRIMINATION AND PREGNANCY-RELATED DISABILITY DISCRIMINATION, https://www.eeoc.gov/pregnancy-discriminationhttps://www.eeoc.gov/pregnancy-discrimination (last (last
visited June visited June ~~8, 2021).~~
~~25 42 U.S.C. § 2000e(f); 42 U.S.C. § 2000e-16(a); Jackson v. Modly, 949 F.3d 763, 772 (D.C. Cir. 2020).~~
~~26 42 U.S.C. § 2000e-1 (noting religious institutions may to employ “individuals of a particular religion to perform~~
~~work connected with the carrying . . . of their activities”); see also id. § 2000e-2(e)(2). The Constitution may also~~
~~constrain some employment laws. As interpreted by the Supreme Court, the Constitution provides a “ministerial~~
~~exception” forbidding regulation of religious institutions’ selection and management of leaders and others performing~~
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~~Elements of a PDA Claim: Adverse Action and Motive~~
~~Title VII bars employers from taking adverse employment actions, including “fail[ure] or~~
~~refus[al] to hire or . . . discharge [of] any individual” and discrimination in~~ 7, 2023). Congressional Research Service 3 link to page 4 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers and most federal judicial employers, fall outside Title VII’s purview.26 Title VII also allows religious institutions more leeway than others to make employment decisions.27 Elements of a PDA Claim: Adverse Action and Motive Under the PDA, plaintiffs may raise claims like those under Title VII’s other protected bases, including claims based on harassment or adverse action based on pregnancy. They may also raise a PDA-specific claim—that the employer did not accommodate pregnant women as it did others similarly situated. For an adverse action claim, proving a PDA violation generally requires showing two primary elements: an adverse employment action and discriminatory motivation.28 On the first, Title VII, and therefore the PDA, prohibits discrimination in the “compensation, terms, “compensation, terms,
~~conditions, or privileges of employment.”27 Accordingly, to make out a Title VII claim (including~~
~~a PDA claim) an employee must generally show that she suffered an adverse employment action,~~
~~such as termination, discipline, loss of pay, or other mistreatment.28 Involuntary reassignment or~~
~~leave may also violate the PDA~~conditions, or privileges of employment.”29 An adverse employment action is one such as termination, discipline, or loss of pay that is significant enough to change the terms, conditions, or privileges of employment.30 Other examples of adverse employment actions that often arise in the PDA context include involuntary reassignment or leave, including mandatory light duty when the employee did not , including mandatory light duty when the employee did not
~~request or require it.29 The Supreme Court noted that “stereotypical assumptions” about pregnant~~
~~workers’ abilities “would, of course, be inconsistent with Title VII’s goal of equal employment~~
~~opportunity.”30~~
~~Under the PDA, courts commonly consider claims that bias against pregnancy motivated an~~
~~employee’s discharge, threat of discharge, or promotion denial.31 In these cases, the parties do not~~
~~generally dispute that an employer has taken an adverse action. Resolution here turns on~~
~~establishing an impermissible motive: acting because of pregnancy.32~~
~~To establish motive, courts generally use a burden-shifting standard. After the employee identifies~~
~~an adverse action, the burden then shifts to the employer to prove it had a “legitimate,~~
~~nondiscriminatory reason” for its decision.33 The question of motive is a factual one, and an~~
~~employee may prevail if she shows that the proffered motive is pretextual.34 She may prevail even~~
~~if there were multiple motives—both a discriminatory motive and a legitimate one. It is enough if~~
~~pregnancy was “a motivating factor” in the adverse decision, even if “other factors also motivated~~
~~the practice.”35 Pregnancy-motivated adverse action is discriminatory even if the employer~~
~~characterizes its decision as protective or benign.36~~

~~religious functions. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188, 196 (2012)~~
~~(holding ministerial exceptions limited application of ADA to religious teacher~~request or require it.31 In many cases, the parties agree that the employee has faced an adverse employment action, such as failure to be hired, discharge, threat of discharge, or promotion denial, and the case turns on the second element: whether the employer acted because of the employee’s pregnancy.32 In considering whether an employer mistreated an employee “because of” pregnancy, federal courts generally apply the same legal standards they would in a sex or race discrimination case. In 26 42 U.S.C. §§ 2000e(f), 2000e-16(a) (“applying protections to “units of the judicial branch of the Federal Government having positions in the competitive service”); Frost v. United States, 115 Fed. Cl. 252, 256 (2014)(observing that “the only units in the judicial branch that have ever had positions in the competitive service are the Administrative Office of the United States Courts and the Federal Judicial Center” and, accordingly, federal judiciary employees “do not generally qualify as competitive service employees because they are neither in the executive branch nor included in the competitive service by statute.”); Jackson v. Modly, 949 F.3d 763, 772 (D.C. Cir. 2020) (noting every circuit to have considered the issue has concluded, although not always for the same reasons, that Title VII applies only to civilian Department of Defense employees, not uniformed servicemembers); 29 C.F.R. § 1614.103(d)(1) (noting Title VII regulations do not apply to “[u]niformed members of the military departments”). 27 42 U.S.C. § 2000e-1(a) (indicating religious institutions may employ “individuals of a particular religion to perform work connected with the carrying on . . . of [their] activities”); see also id. § 2000e-2(e)(2). The Constitution also constrains some employment laws. As interpreted by the Supreme Court, the Constitution provides a “ministerial exception” forbidding regulation of religious institutions’ selection and management of leaders and others performing religious functions. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188, 196 (2012) (holding ministerial exception limits religious teacher’s entitlement to ADA protections and noting lower courts’ application of and noting lower courts’ application of
the doctrine to Title VII claims)the doctrine to Title VII claims).
~~27 42 U.S.C. § 2000e-2(a)(1).~~
~~28 EEOC Enforcement Guidance, supra note 3; Asmo v. Keane, Inc., 471 F.3d 588, 592 (6th Cir. 2006).~~
29; Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2066 (2020) (holding ministerial exception applies to primary school teachers at Catholic schools to bar age and disability discrimination claims). See also Cong. Rsch. Serv., Church Leadership and the Ministerial Exception, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-2-3-4/ALDE_00013117/['ministerial'] (last visited June 21, 2023). 28 Claims based on a disparate impact theory or a failure to treat pregnant workers the same as those similarly situated have different intent requirements; these will be discussed separately. 29 42 U.S.C. § 2000e-2(a)(1). 30 EEOC ENFORCEMENT GUIDANCE, supra note 2; Asmo v. Keane, Inc., 471 F.3d 588, 592 (6th Cir. 2006). 31 Richards v. City of Topeka, 173 F.3d 1247, 1250 (10th Cir. 1999); Carney v. Martin Luther Home, Inc., 824 F.2d Richards v. City of Topeka, 173 F.3d 1247, 1250 (10th Cir. 1999); Carney v. Martin Luther Home, Inc., 824 F.2d
643, 648 (8th Cir. 1987); 643, 648 (8th Cir. 1987); see also S. REP. NO. 95-331 at 3 S. REP. NO. 95-331 at 3-–4 (1978) (report from the Committee on Human Resources to 4 (1978) (report from the Committee on Human Resources to
accompany the Senate version of the PDA, S. 995) (stating that when pregnant employees are “not able to work for accompany the Senate version of the PDA, S. 995) (stating that when pregnant employees are “not able to work for
medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are
disabled from working”). disabled from working”).
~~30 California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 290 (1987).~~
~~31 Hercule v. Wendy’s of N.E. Fla., Inc., No. 10-80248-CIV, 2010 WL 1882181, at *5 (S.D. Fla. May 11, 2010);~~
32 Germain v. Germain v. ~~Cty~~Cnty. of Suffolk, No. 07-CV-. of Suffolk, No. 07-CV-~~2523ADSARL~~2523-ADS ARL, 2009 WL 1514513, at *6 (E.D.N.Y. May 29, 2009); Poague v. , 2009 WL 1514513, at *6 (E.D.N.Y. May 29, 2009); Poague v.
Huntsville Wholesale Furniture, No. 7:18-CV-00005-LSC, 2020 WL 6363983, at *3 (N.D. Ala. Oct. 29, Huntsville Wholesale Furniture, No. 7:18-CV-00005-LSC, 2020 WL 6363983, at *3 (N.D. Ala. Oct. 29, 2020). Congressional Research Service 4 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers determining motive, courts may consider any unfavorable comments made by supervisors about an employee’s pregnancy. Plaintiffs have recounted statements about a worker’s appearance, disapproval of her pregnancy, or disparagement of her working ability. Alleged comments noted in PDA cases include “take your fat pregnant ass home,”33 “[y]ou picked a poor time to get pregnant,”34 or, to a recently married employee, “we feared something like this would happen.”35 One manager allegedly told a pregnant worker “if she wanted to keep her job, she should not stay pregnant.”36 Such statements may support the employee’s claim that an employer acted with a discriminatory motive. If courts do not find direct evidence of antipregnancy bias, they will turn to the burden-shifting framework announced in McDonnell Douglas Corp. v. Green.37 A PDA plaintiff must show that an employer knew of her pregnancy or related condition, prove that she satisfactorily performed her job (or was qualified for hire or promotion), identify an adverse employment action, and point to circumstances suggesting the employer acted because of pregnancy.38 Courts can consider any workplace circumstances that would support an inference of discrimination. Such circumstances may include more favorable treatment of a similarly situated worker who is not pregnant~~2020).~~
~~32 Germain, 2009 WL 1514513, at *5.~~
~~33 Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1220 (10th Cir. 2007).~~
~~34 In considering whether an employer mistreated an employee “because of” pregnancy, federal courts generally apply~~
~~the same legal standards they would in a sex or race discrimination case. If they find no direct evidence of anti-~~
~~pregnancy bias, courts turn to the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411~~
~~U.S. 792, 802-04 (1973). A PDA plaintiff must show that an employer knew of her pregnancy or related condition,~~
~~prove that she satisfactorily performed her job, identify an adverse employment action, and point to circumstances~~
~~suggesting the employer acted because of pregnancy. See Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1221~~
~~(11th Cir. 2019).~~
~~3542 U.S.C. § 2000e-2(m). See also Spees v. James Marine, Inc., 617 F.3d 380, 390 (6th Cir. 2010).~~
~~36 Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S.~~
~~187, 199 (1991) (holding that barring fertile women from jobs with chemical exposure violates the PDA, and stating~~
~~Congressional Research Service~~
4

~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~Without a clear connection between pregnancy and the adverse action, a court will consider facts~~
~~that tend to support a finding of intentional discrimination, such as the timing of an adverse~~
~~action~~. For example, the U.S. Court of Appeals for the Sixth Circuit held that, for an employee . For example, the U.S. Court of Appeals for the Sixth Circuit held that, for an employee
allegedly disciplined and fired one month after disclosing her pregnancy, “the sequence of events allegedly disciplined and fired one month after disclosing her pregnancy, “the sequence of events
. . . is sufficient to raise the inference of discrimination.”. . . is sufficient to raise the inference of discrimination.”37
39 As in other discrimination cases, courts As in other discrimination cases, courts ~~will recognize an inference of~~may infer discrimination when discrimination when
employers fail to give credible, consistent reasons for the adverse action.employers fail to give credible, consistent reasons for the adverse action.3840 An employer may lack An employer may lack
credibility, for example, when managers’ given reasons for firing a pregnant employee change credibility, for example, when managers’ given reasons for firing a pregnant employee change
~~after she files suit.39 Inconsistencies may also help show that an employer’s claim that a pregnant~~
~~worker could not do her job are pretextual~~after she files suit.41 Changing standards after an employee announces a pregnancy can also signal discrimination. One employer at an auto. One employer at an auto -parts store, for example, parts store, for example,
allegedly decided on the position’s lifting requirement only allegedly decided on the position’s lifting requirement only after a worker became pregnant. In a worker became pregnant. In
setting the lifting requirement, the plaintiff claimed that the manager said: “‘what was the weight setting the lifting requirement, the plaintiff claimed that the manager said: “‘what was the weight
I told you?’ then, after some indecision, decid[ed] that she must lift 50 pounds, and finally I told you?’ then, after some indecision, decid[ed] that she must lift 50 pounds, and finally
conclud[ed] ‘oh well, I guess you don’t meet it. So you can’t come back to work.’”conclud[ed] ‘oh well, I guess you don’t meet it. So you can’t come back to work.’”40
~~Also relevant in determining motive are any unfavorable comments made by supervisors about an~~
~~employee’s pregnancy. Plaintiffs have recounted statements about a worker’s appearance,~~
~~disapproval of her pregnancy, or disparagement of her working ability. Alleged comments noted~~
~~in PDA cases include “take your fat pregnant ass home,”41 “[y]ou picked a poor time to get~~
~~pregnant,”42 or, to a recently married employee, “we feared something like this would happen.”43~~
~~One manager allegedly told a pregnant worker “if she wanted to keep her job, she should not stay~~
~~pregnant.”44 Such statements may support the employee’s claim that an employer acted with a~~
~~discriminatory motive.~~
~~Pregnancy Harassment~~
~~In addition to barring adverse actions such as reassignment or termination, Title VII makes it~~
~~illegal for an employer to subject an employee to a hostile work environment because of~~
~~pregnancy.45 This requires evidence of “severe or pervasive conduct such that it constitutes a~~
~~change in the terms and conditions of employment,” although the plaintiff need not identify a~~

~~that “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a~~
~~discriminatory effect”).~~
3742 Once a worker or applicant has presented facts supporting an inference of discrimination, the burden shifts to the employer to produce evidence that it had a “legitimate, nondiscriminatory 33 Hercule v. Wendy’s of N.E. Fla., Inc., No. 10-80248-CIV, 2010 WL 1882181, at *1 (S.D. Fla. May 11, 2010) (recounting facts in granting partial motion to dismiss against improper parties). 34 Villanueva v. Christiana Care Health Servs., Inc., No. CIV.A. 04-258-JJF, 2007 WL 188111, at *2 (D. Del. Jan. 23, 2007) (denying motion for summary judgment, holding alleged comments provided circumstantial evidence of discriminatory termination). 35 Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012) (holding alleged statements provided circumstantial evidence of discriminatory motive for termination, precluding summary judgment for employer), overruled in part by United States v. Durham, 795 F.3d 1329, 1330 (11th Cir. 2015). 36 Townsend v. Town of Brusly, 421 F. Supp. 3d 352, 360 (M.D. La. 2019). 37 411 U.S. 792, 802–04 (1973). 38 See Lewis v. City of Union City, 918 F.3d 1213, 1221 (11th Cir. 2019). 39 Lenzi v. Systemax, Inc., 944 F.3d 97, 108 (2d Cir. 2019); Lenzi v. Systemax, Inc., 944 F.3d 97, 108 (2d Cir. 2019); see also Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir. Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir.
2006) 2006) ~~594~~ (holding two-month window “sufficient to establish a link between [employee’s] pregnancy and her (holding two-month window “sufficient to establish a link between [employee’s] pregnancy and her
termination”). termination”).
3840 Legg v. Ulster Legg v. Ulster ~~Cty~~Cnty., 820 F.3d 67, 70 (2d Cir. 2016). ., 820 F.3d 67, 70 (2d Cir. 2016).
3941 Asmo, 471 F.3d at 596 (pointing to evidence suggesting inconsistent statement and reversing summary judgment). , 471 F.3d at 596 (pointing to evidence suggesting inconsistent statement and reversing summary judgment).
4042 Stansfield v. O’Reilly Auto., Inc., No. CIV.A. H-04-4161, 2006 WL 1030010, at *3 (S.D. Tex. Apr. 19, 2006) Stansfield v. O’Reilly Auto., Inc., No. CIV.A. H-04-4161, 2006 WL 1030010, at *3 (S.D. Tex. Apr. 19, 2006)
(denying defendant’s summary judgment motion). (denying defendant’s summary judgment motion).
~~41 Hercule v. Wendy’s of N.E. Fla., Inc., No. 10-80248-CIV, 2010 WL 1882181, at *1, (S.D. Fla. May 11, 2010~~
~~(denying motion to dismiss)).~~
~~42 Villanueva v. Christiana Care Health Servs., Inc., No. CIV.A. 04-258-JJF, 2007 WL 188111, at *2 (D. Del. Jan. 23,~~
~~2007) (denying motion for summary judgment, holding alleged comments provided circumstantial evidence of~~
~~discriminatory termination).~~
~~43 Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012) (holding alleged statements~~
~~provide circumstantial evidence of discriminatory motive for termination, precluding summary judgement for~~
~~employer).~~
~~44 Townsend v. Town of Brusly, 421 F. Supp. 3d 352, 360 (M.D. La. 2019).~~
~~45 Harris, 510 U.S. at 21; Harassment, EEOC, https://www.eeoc.gov/harassment (last visited June 8, 2021).~~
~~Congressional Research Service~~
5

~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~discrete adverse employment action.46 The Supreme Court has described such a workplace as~~
~~“permeated with discriminatory intimidation, ridicule, and insult that is~~ Congressional Research Service 5 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers reason” for its action.43 If the employer can produce such evidence, the burden shifts back to the employee to prove that the proffered reason is pretextual—i.e., that the real motive was pregnancy.44 The employee may prevail even if there were multiple motives—both a discriminatory motive and a legitimate one. It is enough if pregnancy was “a motivating factor” in the adverse decision, even if “other factors also motivated the practice.”45 Pregnancy-motivated adverse action is discriminatory even if the employer characterizes its decision as protective or benign.46 As the Supreme Court stated, “stereotypical assumptions” about pregnant workers’ abilities “would, of course, be inconsistent with Title VII’s goal of equal employment opportunity.”47 Pregnancy Harassment In addition to barring adverse actions such as reassignment or termination, Title VII and the PDA make it illegal for an employer to subject an employee to a hostile work environment because of pregnancy.48 This type of claim requires evidence of “severe or pervasive conduct such that it constitutes a change in the terms and conditions of employment,” although the plaintiff need not identify a discrete adverse employment action.49 The Supreme Court has described a workplace that is “permeated with ‘discriminatory intimidation, ridicule, and insult’” as “sufficiently severe or sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.”environment.”4750
A single derogatory comment is rarely enough to show A single derogatory comment is rarely enough to show ~~harassment.48 Furthermore, it is~~a hostile work environment.51 It is also not not
enough that a particular enough that a particular ~~employee~~employee found the workplace unwelcoming; a harassment claim found the workplace unwelcoming; a harassment claim
requires that an “objectively reasonable person would find” the workplace hostile or abusive.requires that an “objectively reasonable person would find” the workplace hostile or abusive.4952
Assessment of the working environment is fact-specific, and courts must examine “the totality of Assessment of the working environment is fact-specific, and courts must examine “the totality of
the circumstances.”the circumstances.”5053 These circumstances may include the frequency of the offensive conduct, its These circumstances may include the frequency of the offensive conduct, its
severity, whether it is physically threatening or humiliating, and whether it interferes with job severity, whether it is physically threatening or humiliating, and whether it interferes with job
performance.performance.~~51 Taking into account all of~~ 54 Consideration of all the circumstances means that a court will assess the circumstances means that a court will assess
~~pregnancy-based epithets and mistreatment together with any abuse that is not overtly pregnancy-~~
~~related, such as closer supervision or excessive discipline.52~~
~~In the context of pregnancy, hostile treatment claims often include allegations of disparaging~~
~~comments or threats. In one case, for example, plaintiff claimed that a manager “beg[a]n referring~~
~~to [plaintiff] as ‘prego,’” and urged her to quit or go on disability.53 A manager pressuring an~~
~~employee to terminate her pregnancy may also support a harassment claim.54~~
~~Light Duty and Light Duty Requests~~
~~One particular form of discrimination, discriminatory denials of light duty, commonly arises in~~
~~the pregnancy context. While other claims focus on employers’ imposing involuntary restrictions~~
~~on pregnant workers (such as changed job duties or forced leave), these claims, conversely, allege~~
~~that employers denied a request for light duty or other job modifications. Under the PDA,~~
~~pregnant women who “are not able to work for medical reasons . . . must be accorded the same~~
~~rights, leave privileges and other benefits, as other workers who are disabled from working.”55~~
~~The PDA does not require accommodations, but courts must evaluate whether, in these cases,~~
~~managers contravened the PDA’s requirement that pregnant workers be treated the same as other~~
~~employees similar in their ability to work. Workers may sometimes show this comparison by~~
~~identifying other employees given the accommodation they seek. In a mail handling facility, for~~
~~example, a pregnant worker alleged that supervisors declined to let her perform some of her tasks~~
~~while seated, even though injured employees were allowed this accommodation.56~~

~~46 Gorski v. New Hampshire Dep’t of Corr., 290 F.3d 466, 469 (1st Cir. 2002).~~
~~47 Harris, 510 U.S. at 21.~~
~~48 Cf. Gorski, 290 F.3d at 471 (holding allegation of seven harassing comments adequate to survive summary~~
~~judgment).~~
~~49 Gorski, 290 F.3d at 474.~~
~~50 Hyde v. K.B. Home, Inc., 355 F. App’x 266, 272 (11th Cir. 2009). See also Gorski, 290 F.3d at 471.~~
~~51 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).~~
~~52 Zisumbo v. McCleodUSA Telecomms. Servs., Inc., 154 F. App’x 715, 726 (10th Cir. 2005).~~
~~53 Id. (reversing summary judgment granted for employer).~~
~~54 Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 854-55 (8th Cir. 1998) (discussing plaintiff’s allegation that employer~~
~~told her at least six times to get an abortion, calling her at home and offering to pay for it); Hercule v. Wendy’s of N.E.~~
~~Fla., Inc., No. 10-80248-CIV, 2010 WL 1882181, at *1 (S.D. Fla. May 11, 2010) (describing allegation that manager~~
~~encouraged plaintiff to have an abortion).~~
~~55 S. REP. NO. 95-331 at 3 (1978).~~
~~56 Ensley-Gaines v. Runyon, 100 F.3d 1220, 1223 (6th Cir. 1996) (reversing summary judgment).~~
~~Congressional Research Service~~
6

~~link to page 4~~ ~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~Courts will also consider whether an employer has changed work requirements, making them~~
~~more strenuous than before a worker’s pregnancy. One manager, for example, allegedly forbade~~
~~an employee to seek help in lifting, even though she did so before she became pregnant, and even~~
~~though managers allowed others to seek assistance.57~~
~~“Related Medical Conditions” and the PDA’s Scope~~
~~In protecting “pregnancy, childbirth, or related medical conditions,”58 the PDA reaches~~
~~circumstances beyond pregnancy per se. As one court put it, discrimination “before, during, and~~
~~after . . . pregnancy” may violate the PDA.59 The EEOC has stated that “the PDA covers all~~
~~aspects of pregnancy and all aspects of employment, including hiring, firing, promotion, health~~
~~insurance benefits, and treatment.”60~~
~~Pre-pregnancy considerations include adverse actions~~pregnancy- 43 McDonnell Douglas Corp. v. Green, 411 U.S. 411, 802 (1973); Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005). 44 McDonnell Douglas, 411 U.S. at 804; Lewis v. City of Union City, 918 F.3d 1213, 1221 (11th Cir. 2019). 45 42 U.S.C. § 2000e-2(m); see also Spees v. James Marine, Inc., 617 F.3d 380, 390 (6th Cir. 2010). A plaintiff’s damages may be reduced if an employer can show that, even without the discriminatory motive, it would have taken the same action. 42 U.S.C. § 2000e-5(g)(2)(B); Gudenkauf v. Stauffer Commc’ns, Inc., 158 F.3d 1074, 1076 (10th Cir. 1998). 46 Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (holding that barring fertile women from jobs with chemical exposure violates the PDA and stating that “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect”). 47 Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 290 (1987). 48 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); U.S. EQUAL EMP. OPPORTUNITY COMM’N, HARASSMENT, https://www.eeoc.gov/harassment (last visited June 7, 2023). 49 Gorski v. N.H. Dep’t of Corr., 290 F.3d 466, 469 (1st Cir. 2002) (quoting Gorski v. N.H. Dep’t of Corr., CIV. 99-562-JD, 2000 WL 1507428 (D.N.H. July 19, 2000)). 50 Harris, 510 U.S. at 21 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65–67 (1986)). 51 Cf. Gorski, 290 F.3d at 474 (holding allegation of seven harassing comments adequate to survive summary judgment). 52 Id. 53 Hyde v. K.B. Home, Inc., 355 F. App’x 266, 272 (11th Cir. 2009); see also Gorski, 290 F.3d at 471. 54 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002). Congressional Research Service 6 link to page 4 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers based epithets and mistreatment together with any abuse that is not overtly pregnancy-related, such as closer supervision or excessive discipline.55 Pregnancy-related hostile work environment claims often allege disparaging comments or threats. In one case, for example, the plaintiff claimed that a manager “beg[a]n referring to [plaintiff] as ‘prego’” and urged her to quit or go on disability.56 A manager pressuring an employee to terminate her pregnancy may support a hostile work environment claim.57 “Related Medical Conditions” and the PDA’s Scope Courts have relied both on the PDA’s plain text, specifically the protection it extends to “childbirth” and “related medical conditions,”58 and its legislative history59 to establish that the statute covers more than pregnancy per se. As one court put it, discrimination “before, during, and after . . . pregnancy” may violate the PDA.60 The EEOC has stated that “the PDA covers all aspects of pregnancy and all aspects of employment, including hiring, firing, promotion, health insurance benefits, and treatment.”61 Pre-pregnancy discrimination can include adverse action taken on account of a woman’s plans to taken on account of a woman’s plans to
start a family or seek fertility treatments. For example, the Seventh Circuit concluded that a start a family or seek fertility treatments. For example, the Seventh Circuit concluded that a
worker could bring a PDA claim after her employer allegedly fired her for taking time off for worker could bring a PDA claim after her employer allegedly fired her for taking time off for
fertility treatments, telling her “that the termination was ‘in [her] best interest due to [her] health fertility treatments, telling her “that the termination was ‘in [her] best interest due to [her] health
condition.’”condition.’”61
62 In another case of pre-pregnancy discrimination, a federal district court in Illinois rejected In another case of pre-pregnancy discrimination, a federal district court in Illinois rejected ~~the~~
an employer’s argument that the PDA did not cover discrimination based on inability to employer’s argument that the PDA did not cover discrimination based on inability to become pregnant naturally.63 The court~~become~~
~~pregnant.62 It~~ held that the PDA protected an employee who alleged that her supervisor “verbally held that the PDA protected an employee who alleged that her supervisor “verbally
abused abused ~~her~~[her]” about her fertility treatments, questioned whether she could manage pregnancy and ” about her fertility treatments, questioned whether she could manage pregnancy and
career, and treated her sick leave applications less favorably than career, and treated her sick leave applications less favorably than other workers’ requests.64 55 Zisumbo v. McCleodUSA Telecomms. Servs., Inc., 154 F. App’x 715, 726 (10th Cir. 2005). 56 Id. (reversing summary judgment granted for employer). 57 Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 854–55 (8th Cir. 1998) (discussing plaintiff’s allegation that employer told her at least six times to get an abortion, calling her at home and offering to pay for it); Hercule v. Wendy’s of N.E. Fla., Inc., No. 10-80248-CIV, 2010 WL 1882181, at *1 (S.D. Fla. May 11, 2010) (describing allegation that manager encouraged plaintiff to have an abortion). 58 Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (holding that the “plain language of the statute” barred discrimination on the basis that a worker had considered an abortion). 59 Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1402 (N.D. Ill. 1994) (indicating that PDA coverage for claims from women trying to become pregnant rested on a “common-sense reading of the PDA’s language,” and finding support in statement from Senator that women historically endured discrimination “[b]ecause of their capacity to become pregnant” and “because they might become pregnant” (quoting 123 Cong. Rec. 29385 (1977) (statement of Sen. Harrison Williams)). 60 Id. at 1402; see also Hall v. Nalco Co., 534 F.3d 644, 649 (7th Cir. 2008). 61 EEOC ENFORCEMENT GUIDANCE, supra note 2. 62 Hall, 534 ~~other workers’ requests.63 While~~
~~the court acknowledged that allowing claims only for pregnant women and excluding those~~
~~seeking pregnancy might be a “common-sense reading of the PDA’s language,” it also pointed to~~
~~the Act’s legislative history.64 One of the measure’s sponsors explained that women historically~~
~~endured discrimination “[b]ecause of their capacity to become pregnant,” and “because they~~
~~might become pregnant.”65~~
~~In a similar vein, employers may not bar women of childbearing age under “fetal protection”~~
~~policies designed to prevent exposure to toxins linked to birth defects.66 Such a policy violates~~

~~57 Stansfield v. O’Reilly Auto., Inc., No. CIV.A. H-04-4161, 2006 WL 1030010, at *5-6 (S.D. Tex. Apr. 19, 2006).~~
~~58 42 U.S.C. § 2000e(k).~~
~~59 Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1402 (N.D. Ill. 1994) (quoting legislative history and holding PDA~~
~~protected employee seeking fertility treatments); see also Hall v. Nalco Co., 534 F.3d 644, 649 (7th Cir. 2008).~~
~~60 EEOC Enforcement Guidance, supra note 3.~~
61 Hall, F.3d at 649 (rejecting district court’s conclusion that because infertility is gender-neutral, plaintiff could not F.3d at 649 (rejecting district court’s conclusion that because infertility is gender-neutral, plaintiff could not
pursue a Title VII claim). pursue a Title VII claim).
62 Id.63 Pacourek, 858 F. Supp. at 1401; ; see also Batchelor v. Merck & Co., 651 F. Supp. 2d 818, 830 (N.D. Ind. 2008) (holding PDA protects against Batchelor v. Merck & Co., 651 F. Supp. 2d 818, 830 (N.D. Ind. 2008) (holding PDA protects against
discrimination based on a woman’s plans to become pregnant)discrimination based on a woman’s plans to become pregnant).
~~63 Pacourek, 858 F. Supp. at 1401.~~
~~64 Id. at 1402.~~
~~65 Id. (quoting 124 Cong. Rec. 38574 (daily ed., Oct. 14, 1978) (statement of Rep. Ronald Sarasin, House manager of~~
~~PDA legislation).~~ ; Erickson v. Bd. of Governors of State Colleges & Universities for Ne. Ill. Univ., 911 F. Supp. 316, 319 (N.D. Ill. 1995) (holding PDA covers infertility treatment). 64 Pacourek, 858 F. Supp. at 1401. But see In re Union Pac. R.R. Emp. Pracs. Litig., 479 F.3d 936, 941 (8th Cir. 2007) (holding medical In re Union Pac. R.R. Emp. Pracs. Litig., 479 F.3d 936, 941 (8th Cir. 2007) (holding medical
plan’s exclusion of infertility treatment does not violate the PDA because “[i]nfertility is strikingly different from plan’s exclusion of infertility treatment does not violate the PDA because “[i]nfertility is strikingly different from
pregnancy”pregnancy”~~) (internal quotation marks omitted).~~
~~66 Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S.~~
~~187, 193 (1991).~~
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~~Title VII’s bar on sex-based classifications, the Supreme Court has observed, and the PDA~~
~~“bolster[s]” this conclusion.67~~
~~Courts have sometimes cited the PDA’s reference to “related medical conditions” as showing its~~
~~coverage exceeds pregnancy per se. The Sixth Circuit did so, holding that the “plain language of~~
~~the statute” barred discrimination because a worker had considered an abortion.68~~ (internal quotation marks omitted)). Congressional Research Service 7 link to page 4 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers In a similar vein, employers may not bar women of childbearing age from certain jobs under “fetal protection” policies designed to prevent exposure to toxins linked to birth defects.65 Such policies violate Title VII’s bar on sex-based classifications, the Supreme Court has concluded, and the PDA “bolster[s]” this conclusion.66 Courts have Courts have
also applied the PDA to various postpregnancy conditions. A woman may not be fired because of applied the PDA to various postpregnancy conditions. A woman may not be fired because of
recent childbirth, for example.recent childbirth, for example.6967 Postpartum medical complications Postpartum medical complications~~, similarly,~~ are impermissible are impermissible
grounds for grounds for adverse employment actionemployment action~~.70~~ as well.68 As one court put it, the PDA encompasses “conditions related As one court put it, the PDA encompasses “conditions related
to pregnancy that occur after the actual pregnancy.”to pregnancy that occur after the actual pregnancy.”7169 A woman with a postpartum condition must A woman with a postpartum condition must
be treated as are other workers with nonpregnancy illnesses.be treated as are other workers with nonpregnancy illnesses.72 70 Courts have held that postpartum Courts have held that postpartum
depression and a disrupted menstrual cycle, for example, fall within this rule.depression and a disrupted menstrual cycle, for example, fall within this rule.73
~~There has been disagreement among courts on~~71 Courts have disagreed about whether lactation is a pregnancy-related condition whether lactation is a pregnancy-related condition
covered by the PDA. At least covered by the PDA. At least ~~initially~~at first, the prevailing view among reviewing district courts was , the prevailing view among reviewing district courts was
that breastfeeding was ineligible for PDA protection, as it was that breastfeeding was ineligible for PDA protection, as it was ~~not~~ viewed as a medical condition viewed as a medical condition
relatedrelated not to pregnancy or childbirth to pregnancy or childbirth, but instead but instead ~~related~~ to subsequent child care. to subsequent child care.7472 At least two At least two
federal courts of appeals have also opined, either federal courts of appeals have also opined, either ~~when resolving a dispositive issue of the case~~in a holding or or
in nonbinding dicta, that breastfeeding is not a protected medical condition under the PDA.in nonbinding dicta, that breastfeeding is not a protected medical condition under the PDA.75
~~More~~73 However, more recent court decisions, including one by a federal court of appeals, have concluded recent court decisions, including one by a federal court of appeals, have concluded
otherwise,otherwise,7674 leading one district court leading one district court ~~to observe in 2016 that there was a “trend” by reviewing~~

~~67 Id. at 197-~~in 2016 65 Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 193 (1991). 66 Id. at 197–98 (holding battery manufacturer 98 (holding battery manufacturer ~~may~~could not preclude women of childbearing age from employment on the not preclude women of childbearing age from employment on the
grounds that chemical exposure would be dangerous to grounds that chemical exposure would be dangerous to ~~an unborn child~~a fetus should a worker become pregnant); should a worker become pregnant); see also
~~EEOC Enforcement Guidance~~EEOC ENFORCEMENT GUIDANCE, supra note 2. 67 Neessen v. Arona Corp., 708 F. Supp. 2d 841, 851 (N.D. Iowa ~~, supra note 3.~~
~~68 Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996).~~
~~69 Neessen v. Arona Corp., 2010 WL 1731652, at *7 (N.D. Iowa Apr. 30,~~ 2010); Shafrir v. Ass’n of Reform Zionists of 2010); Shafrir v. Ass’n of Reform Zionists of
Am., 998 F. Supp. 355, 363 (S.D.N.Y. 1998). Am., 998 F. Supp. 355, 363 (S.D.N.Y. 1998).
7068 Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 544 (S.D.N.Y. 2009). Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 544 (S.D.N.Y. 2009).
7169 Id. .
7270 Id. at 545. . at 545.
7371 Id. at 544 (holding PDA covers postpartum depression); Harper v. Thiokol Chem. Corp., 619 F.2d 489, 493 (5th Cir. at 544 (holding PDA covers postpartum depression); Harper v. Thiokol Chem. Corp., 619 F.2d 489, 493 (5th Cir.
1980) (holding employer’s policy of denying 1980) (holding employer’s policy of denying ~~post-pregnancy~~postpregnancy employment until worker had returned to a normal employment until worker had returned to a normal
menstrual cycle violated PDA)menstrual cycle violated PDA). ~~See~~; see also Infante v. Ambac Fin. Grp., No. 03 CV 8880 Infante v. Ambac Fin. Grp., No. 03 CV 8880 ~~(KMW)~~, 2006 WL 44172, at *4 , 2006 WL 44172, at *4
(S.D.N.Y. Jan. 5, 2006)(S.D.N.Y. Jan. 5, 2006)~~, aff’d, 257 F. App’x 432 (2d Cir. 2007)~~ (noting that plaintiff’s thyroid condition, if exacerbated (noting that plaintiff’s thyroid condition, if exacerbated
by recent pregnancy, might fall within the PDA’s purview)by recent pregnancy, might fall within the PDA’s purview), aff’d, 257 F. App’x 432 (2d Cir. 2007). 72.
74 See, e.g., Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, , Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, ~~1492~~1491 (D. Colo. 1997) (observing that reviewing courts (D. Colo. 1997) (observing that reviewing courts
had “uniformly held that needs or conditions of the child which require the motherhad “uniformly held that needs or conditions of the child which require the mother'’s presence are not within the scope s presence are not within the scope
of the PDA”); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 WL 373790, at *11 (D. Or. Apr. 9, of the PDA”); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 WL 373790, at *11 (D. Or. Apr. 9,
1999); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 8691999); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869-–70 (W.D.70 (W.D. Ky.Ky. 1990) (examining the text and legislative 1990) (examining the text and legislative
history of the PDA and stating that “[w]hile it may be that breast-feeding and weaning are natural concomitants of history of the PDA and stating that “[w]hile it may be that breast-feeding and weaning are natural concomitants of
pregnancy and childbirth, they are not ‘medical conditions’ related thereto. . . . Nothing in the Pregnancy pregnancy and childbirth, they are not ‘medical conditions’ related thereto. . . . Nothing in the Pregnancy
Discrimination Act, or Title VII, obliges employers to accommodate the child-care concerns of breast-feeding female Discrimination Act, or Title VII, obliges employers to accommodate the child-care concerns of breast-feeding female
workers by providing additional breast-feeding leave not available to male workersworkers by providing additional breast-feeding leave not available to male workers.”), ”), aff’d~~aff’d without opinion~~, 951 F.2d , 951 F.2d
351 (6th Cir.351 (6th Cir. 1991). 1991).
7573 Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 438 (6th Cir. 2004) (assessing state law claim and Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 438 (6th Cir. 2004) (assessing state law claim and ~~stating~~suggesting in dicta in dicta
that the PDA would not reach breastfeeding); Wallace v. Pyro Min. Co., 951 F.2d 351that the PDA would not reach breastfeeding); Wallace v. Pyro Min. Co., 951 F.2d 351, (No. 90–6259, 1991 WL 270823, at *1 (6th , 1991 WL 270823, at *1 (6th
~~Cir. 1991)~~Cir. Dec. 19, 1991)) (per curiam) (table, text in Westlaw) (per curiam) (table, text in Westlaw) (stating in dicta that the PDA would not cover breastfeeding); Notter v. (stating in dicta that the PDA would not cover breastfeeding); Notter v.
N. Hand Prot., a Div. of Siebe, Inc., 89 F.3d 829N. Hand Prot., a Div. of Siebe, Inc., 89 F.3d 829 ~~(4th Cir. 1996~~, 1996 WL 342008, at *5 (4th Cir. June 21, 1996) (table, text in Westlaw) (describing aspects of Fourth Circuit’s prior ruling in ) (describing aspects of Fourth Circuit’s prior ruling in
Barrash v. Bowen, 846 F.2d 927, 931 (4th Cir.Barrash v. Bowen, 846 F.2d 927, 931 (4th Cir. 1988) (per curiam)1988) (per curiam), about the scope of the PDA as “dicta without any about the scope of the PDA as “dicta without any
citation of authority,” but maintaining that the earlier case “stands for the narrow proposition that breastfeeding is not a citation of authority,” but maintaining that the earlier case “stands for the narrow proposition that breastfeeding is not a
medical condition related to pregnancy or to childbirth”). medical condition related to pregnancy or to childbirth”).
7674 EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013); Hicks v. City of Tuscaloosa, EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013); Hicks v. City of Tuscaloosa, ~~Alabama,~~ 870 870
F.3d 1253, F.3d 1253, ~~1258-~~1258–59 (11th Cir. 2017); Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463, 479 (D.D.C. 2016)59 (11th Cir. 2017); Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463, 479 (D.D.C. 2016);.
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to identify a “trend” by reviewing courts to “hold that lactation is a ‘condition related to pregnancy’” under the PDA.courts to “hold that lactation is a ‘condition related to pregnancy’” under the PDA.75 Courts taking Courts taking
this view have emphasized, for example, that a woman unable to breastfeed may experience pain, this view have emphasized, for example, that a woman unable to breastfeed may experience pain,
infection, or other medical complications.infection, or other medical complications.76 Since 2010, nursing mothers have also enjoyed additional statutory protections: as discussed below, the Fair Labor Standards Act mandates breaks for covered nursing mothers.77 77
Pregnancy Accommodation and Young v. United Parcel Service
At its core, the PDA calls for pregnant workers to be treated the same as other similarly situated At its core, the PDA calls for pregnant workers to be treated the same as other similarly situated
employees.78 employees.78 ~~Yet after~~After the PDA’s passage, courts struggled to decide the PDA’s passage, courts struggled to decide ~~whether and when the Act~~
~~requires accommodations for pregnant workers in order for them to be treated the same as other~~
~~workers similar in their ability to work~~which workers were similarly situated under the Act. Pregnant women often face work restrictions, such as . Pregnant women often face work restrictions, such as
lifting constraints, limits on chemical exposure, a need for more bathroom breaks, or other lifting constraints, limits on chemical exposure, a need for more bathroom breaks, or other
scheduling requirementsscheduling requirements~~.79~~ that need accommodating.79 The PDA does not forbid employers from granting accommodations for such constraints, but it does not require accommodations for pregnant workers—at least in circumstances where accommodations are not offered to others.80 The difficulty in applying the PDA comes when an employer offers accommodation to some nonpregnant workers and not to pregnant workers. Then PDA plaintiffs may bring claims based on the denial of accommodations and produce evidence of comparators—nonpregnant workers who, they allege, are similarly situated and were treated more favorably. Courts at first varied in their approach to evaluating comparators. Some courts concluded that the reason an employee needed an accommodation mattered, holding that ~~The PDA does not forbid employers from granting a pregnant~~
~~worker’s request for an accommodation of these constraints.80 It also does not explicitly require~~
~~the employer to make any changes to workplace conditions or rules to suit a pregnant worker.~~
~~Whether the PDA requires employers to offer pregnant women the same accommodations that~~
~~they extend to other workers for other reasons is a question that the Supreme Court took up in its~~
~~2015 decision in Young v. United Parcel Service, holding that employers may refuse pregnant~~
~~women certain accommodations given to other workers. The workers’ differing circumstances,~~
~~the Court held, mattered in the analysis.81~~
~~At least prior to Young, courts varied in defining which employees (among those who had~~
~~received accommodations for reasons other than pregnancy) pregnant workers could cite as~~
~~comparators. Some courts concluded that employers must treat pregnant women the same as~~
~~others who request light duty for off-the-job injury, but held that~~ employers must treat pregnant women the same as employees with off-the-job injuries, but that employees injured on the job employees injured on the job
were not were not ~~applicable~~relevant comparators. comparators.8281 Other courts concluded that any accommodated employees Other courts concluded that any accommodated employees
were relevant.were relevant.8382 As the Sixth Circuit reasoned, because the PDA’s text references only employees’ “ability to work,” and not any other basis for comparison, an employer who accommodated on-the-job injuries must accommodate pregnant workers with similar restrictions.83 75 Hicks, 870 F.3d at 1259 n.5 (quoting Mayer v. Pro. Ambulance, LLC, 211 F. Supp. 3d 408, 417 (D.R.I. 2016)). 76 Allen-Brown, 174 F. Supp. 3d at 479; see also Mayer, 211 F. Supp. 3d at 417. 77 Fair Labor Standards Act, 29 U.S.C. §§ 207(r), 218c (as amended by the Providing Urgent Maternal Protections for Nursing Mothers Act, Pub. L. No. 117-328, Div. KK, 136 Stat. 4459 (2022) [hereinafter PUMP for Nursing Mothers Act]; see infra notes 197–207 and accompanying text. ~~As the Sixth Circuit put it, “instead of merely recognizing that discrimination on~~
~~the basis of pregnancy constitutes unlawful sex discrimination under Title VII,” the PDA~~
~~provided additional protection “by expressly requiring that employers provide the same treatment~~
~~[for pregnancy] as provided to ‘other persons not so affected but similar in their ability or~~
~~inability to work.’”84 Because ability to work is the only stated grounds for comparison, the Sixth~~

~~Barnes v. Hewlett Packard Co., 846 F. Supp. 442, 445 (D.Md.1994).~~
~~77 Allen-Brown, 174 F. Supp. 3d at 479. See also Mayer v. Prof’l Ambulance, LLC, 211 F. Supp. 3d 408, 417 (D.R.I.~~
~~2016).~~
78 42 U.S.C. § 2000e(k). 78 42 U.S.C. § 2000e(k).
79 Bradley A. Areheart, 79 Bradley A. Areheart, Accommodating Pregnancy, 67 ALA. L. REV. 1125, 1133 (2016) (“The most commonly , 67 ALA. L. REV. 1125, 1133 (2016) (“The most commonly
requested accommodations include frequent bathroom breaks, limits on heavy lifting, and limitations on overtime requested accommodations include frequent bathroom breaks, limits on heavy lifting, and limitations on overtime
work.”); Jackson v. J.R. Simplot Co., 666 F. App’x 739, 740 (10th Cir. 2016) (unpublished, nonprecedential opinion work.”); Jackson v. J.R. Simplot Co., 666 F. App’x 739, 740 (10th Cir. 2016) (unpublished, nonprecedential opinion
~~noting~~recognizing employee’s doctor restricted her exposure to three chemicals present at her workplace). employee’s doctor restricted her exposure to three chemicals present at her workplace).
80 80 ~~California~~Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. , 479 U.S. at272, 285 ( 285 (~~noting~~1987) (indicating “Congress intended the PDA to be a floor beneath which “Congress intended the PDA to be a floor beneath which
pregnancy disability benefits may not drop—not a ceiling above which they may not risepregnancy disability benefits may not drop—not a ceiling above which they may not rise~~.”)~~” (internal quotation marks (internal quotation marks
and citation omittedand citation omitted)). 81).
~~81 Young v. United Parcel Serv., Inc., 575 U.S. 206 (2015).~~
82 Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548 Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548~~-549~~–49 (7th Cir. 2011) (holding no PDA violation where (7th Cir. 2011) (holding no PDA violation where
employer accommodated employees injured on the job and those entitled under the ADA but not pregnant workers)employer accommodated employees injured on the job and those entitled under the ADA but not pregnant workers);,
abrogated byabrogated by ~~Young~~ Young v. United Parcel Serv., Inc., 575 U.S. 206, 575 U.S. 206 (2015); Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309, 1313 (11th Cir. 1999) (holding ; Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309, 1313 (11th Cir. 1999) (holding
employees injured on the job are not comparable to pregnant workers for PDA purposes), abrogated by employees injured on the job are not comparable to pregnant workers for PDA purposes), abrogated by Young, 575 , 575
U.S. U.S. at 206. 206.
8382 Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996) Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996) abrogated by Young, 575 U.S. at 206; ; see also EEOC v. Horizon/CMS Healthcare Corp., EEOC v. Horizon/CMS Healthcare Corp.,
220 F.3d 1184, 1196 (10th Cir. 2000). 220 F.3d 1184, 1196 (10th Cir. 2000).
8483 Ensley-Gaines, 100 F.3d at 1226. , 100 F.3d at 1226.
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~~Circuit held that if an employer allowed light duty after on-the-job injuries, it must similarly~~
~~accommodate pregnant workers.85~~
In Young~~, the Supreme Court addressed the issue of light duty and pregnant workers,~~ The Supreme Court addressed the issue in its 2015 decision in Young v. United Parcel Service,84 clarifying clarifying
that employers must provide accommodations for pregnant women only in limited that employers must provide accommodations for pregnant women only in limited
~~circumstances.86 As discussed in further detail below, the Court rejected the view that the PDA~~
~~required employers to extend to pregnant workers every accommodation given to others with~~
~~similar needs. Instead, employers could rely on workers’ differing circumstances~~situations.85 In the Court’s view, employers could rely on circumstances beyond employees’ physical needs to justify to justify
disparate treatment. disparate treatment. ~~Federal~~Following Young, federal courts have wrestled with courts have wrestled with ~~the~~its application application of Young to workers’ to workers’
claims that, when it comes to pregnancy accommodations, they have been treated less favorably claims that, when it comes to pregnancy accommodations, they have been treated less favorably
than other employees similar in their ability to work. than other employees similar in their ability to work.
The Young ~~Court’s~~ Decision
In In Young, the Supreme Court considered a United Parcel Service (UPS) delivery driver’s request , the Supreme Court considered a United Parcel Service (UPS) delivery driver’s request
for light duty. Young requested light duty after she became pregnant and her doctor restricted her for light duty. Young requested light duty after she became pregnant and her doctor restricted her
from heavy lifting. UPS denied her request, even though it offered light duty to some other from heavy lifting. UPS denied her request, even though it offered light duty to some other
groups of workers, including those who were injured on the job, those who lost Department of groups of workers, including those who were injured on the job, those who lost Department of
Transportation licensure, or those who had disabilities recognized under the Americans with Transportation licensure, or those who had disabilities recognized under the Americans with
Disabilities Act (ADA). Young claimed pregnancy discrimination, asserting that UPS’s refusal to Disabilities Act (ADA). Young claimed pregnancy discrimination, asserting that UPS’s refusal to
extend the same privilege to pregnant employees who were similar in their ability to work extend the same privilege to pregnant employees who were similar in their ability to work
violated the PDA.violated the PDA.86
The The Supreme Court agreed that the PDA requires a court to compare accommodations given pregnant and Court agreed that the PDA requires a court to compare accommodations given pregnant and
nonpregnant workersnonpregnant workers ~~in order~~ to implement the statute’s requirement that pregnant workers be to implement the statute’s requirement that pregnant workers be
treated as favorably as others similar in their ability to work. In the Court’s view, the PDA entails treated as favorably as others similar in their ability to work. In the Court’s view, the PDA entails
more than “[s]imply including pregnancy among Title VII’s protected traits,” more than “[s]imply including pregnancy among Title VII’s protected traits,” and thereby barring adverse employment actions based on pregnancy, because that because that
approach “would not overturn approach “would not overturn Gilbert in full.”87 The PDA’s second phrase—that “women in full.”87 The PDA’s second phrase—that “women
affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all
employment-related purposes . . . as other persons not so affected but similar in their ability or employment-related purposes . . . as other persons not so affected but similar in their ability or
inability to work”88—would be rendered “superfluous” if inability to work”88—would be rendered “superfluous” if ~~it were inappropriate to compare~~the statute did not require employers to accommodate
pregnant employees pregnant employees ~~and other~~in at least some situations when they accommodated accommodated ~~workers.89~~
~~The Court recognized that UPS’s accommodation of other workers who needed light duty raised~~
~~the possibility that it might be obligated to accommodate the plaintiff. Ultimately, in its~~others.89 In a six-to- six-to-
three decisionthree decision, (with Justice Alito concurringwith Justice Alito concurring), however, the Court , the Court ~~recognized a very~~ultimately recognized only a narrow accommodation narrow accommodation
requirement. The Court held that requirement. The Court held that ~~any workplace adjustments required for pregnancy will depend~~
determining when employees are “similar in their ability or inability to work,” and therefore whether employers must make workplace adjustments for pregnant workers, depends not just on not just on whether an employer accommodates other workers, but an employer accommodates other workers, but why it does so. it does so. ~~Although UPS~~
~~granted various accommodations, the record did not show whether other workers were truly~~
~~“similar in their ability or inability to work,” within the Court’s understanding of the PDA.90 In~~
~~the Court’s view, “similar in . . . inability to work” included inquiry into the reasons for that~~
~~inability.91~~

~~85 Id.~~
~~86 Young, 575 U.S. at 206.~~
~~87 Id. at 227.~~
~~88 42 U.S.C. § 2000e(k).~~
~~89 Young, 575 U.S at 226.~~
~~90 Id. at 237-241.~~
~~91 Id.~~
To allow a pregnant employee to point to any accommodation of another worker to entitle her to light duty, the Court held, would be to grant a sort of “most-favored-nation” status to pregnant women that the PDA did not require.90 It would be too much, the Court reasoned, if “[a]s long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers.”91 84 575 U.S. 206 (2015). 85 Id. at 206. 86 Young v. United Parcel Serv., Inc., 575 U.S. 206, 211–15 (2015). 87 Id. at 227. 88 42 U.S.C. § 2000e(k). 89 Young, 575 U.S at 226. 90 Id. at 221. 91 Id. Congressional Research Service 10 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers Turning to the facts of the case before it, the Court determined that although UPS granted various accommodations, the record did not show whether other workers were truly “similar in their ability or inability to work” within the Court’s understanding of the PDA.92 As a result, while Young could rely on other workers’ accommodations as evidence of ~~Congressional Research Service~~
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~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~To allow a pregnant employee to point to any accommodation of another worker as entitling her~~
~~to light duty, the Court held, would be to grant a sort of “most-favored-nation” status to pregnant~~
~~women.92 It would be too much, the Court reasoned, if “[a]s long as an employer provides one or~~
~~two workers with an accommodation—say, those with particularly hazardous jobs, or those~~
~~whose workplace presence is particularly needed, or those who have worked at the company for~~
~~many years, or those who are over the age of 55—then it must provide similar accommodations~~
~~to all pregnant workers.”93~~
~~Accordingly, while Young could rely on other workers’ accommodations to help establish a prima~~
~~facie case of~~ discrimination, the Court held that those accommodations did not necessarily show discrimination, the Court held that those accommodations did not necessarily show
that she was entitled to a pregnancy accommodation.that she was entitled to a pregnancy accommodation.9493 The employer could still prevail by The employer could still prevail by
explaining its sex-neutral reasons for accommodating others. In this case, UPS had unique explaining its sex-neutral reasons for accommodating others. In this case, UPS had unique
reasons for offering each type of accommodation.reasons for offering each type of accommodation.9594 UPS wanted to implement the ADA, to UPS wanted to implement the ADA, to
comply with collective bargaining agreements, and to continue to employ workers who—unlike comply with collective bargaining agreements, and to continue to employ workers who—unlike
Young—had lost their licensure but not their ability to lift packages.Young—had lost their licensure but not their ability to lift packages.9695 Such reasons, the Court Such reasons, the Court
surmised, might show on remand that UPS did not single out pregnant women for exclusion from surmised, might show on remand that UPS did not single out pregnant women for exclusion from
its accommodation procedures.its accommodation procedures.97
~~In addition to~~96 Along with an assessment of the employer’s reasons for treating pregnant workers less an assessment of the employer’s reasons for treating pregnant workers less
favorably than others, the Court announced one more step in the PDA analysis: a holistic view of favorably than others, the Court announced one more step in the PDA analysis: a holistic view of
an employer’s accommodations. an employer’s accommodations. AAccording to the Supreme Court, a court should consider “the combined effects of” an employer’s court should consider “the combined effects of” an employer’s
policies and decide policies and decide ifwhether they significantly they significantly ~~burdened~~ burden pregnant employees in a way that suggests pregnant employees in a way that suggests
intentional discrimination. “[E]vidence that the employer accommodates a large percentage of intentional discrimination. “[E]vidence that the employer accommodates a large percentage of
nonpregnant workers while failing to accommodate a large percentage of pregnant employees” nonpregnant workers while failing to accommodate a large percentage of pregnant employees”
would suggest such a burdenwould suggest such a burden~~.98~~, the Court opined.97 A court would then consider “the strength of [the employer’s] A court would then consider “the strength of [the employer’s]
justifications for each [accommodation] when combined,”justifications for each [accommodation] when combined,”9998 and the employer’s reasons must be and the employer’s reasons must be
“sufficiently strong” to justify the burden“sufficiently strong” to justify the burden~~.100~~ on pregnant workers.99 If the reasons are not If the reasons are not ~~sufficiently strong~~strong enough, the Court , the Court
held, the circumstances may held, the circumstances may ~~suggest pretext and~~ “give rise to an inference of intentional “give rise to an inference of intentional
discrimination.”discrimination.”~~101~~100 Cost alone, the Court added, would not “normally” meet this test Cost alone, the Court added, would not “normally” meet this test~~.102~~
~~The~~ to justify different treatment of pregnant workers.101 The Court considered this assessment of accommodations “consistent with our longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons for treating individuals within a protected class differently than those outside the protected class.”102 With these principles in place, the Court remanded Court remanded Young’s case to the Fourth Circuit.103 Justice Alito, concurring in the judgment, agreed that a rule only prohibiting adverse employment actions based on pregnancy would render superfluous the second phrase of the PDA, which “raises several difficult questions of interpretation.”104 In Justice Alito’s view, the PDA required 92 Id. at 229–230; id. at 237–41 (Alito, J., concurring) (noting various accommodations UPS had granted, and the lack of explanation for some). 93 Id. at 229. 94 Id. at 218–21. 95 Id. at 215–16, 218. 96 Id. at 232. 97 Id at 229. 98 Id. at 231. 99 Id. at 229. 100 Id. 101 Id. at 229. 102 Id. at 230. 103 Id. at 232. 104 Id. at 233 (Alito, J., concurring). Congressional Research Service 11 link to page 12 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers only a limited assessment of comparators—those doing identical or very similar work.105 In ~~Young’s case to the Fourth Circuit to consider the issue.103 The Court~~
~~acknowledged that its assessment of accommodations was “limited to the Pregnancy~~
~~Discrimination Act context,” but considered it “consistent with our longstanding rule that a~~
~~plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate,~~

~~92 Id. at 225.~~
~~93 Id. at 221.~~
~~94 Young, 575 U.S at 229.~~
~~95 Id. at 218-221.~~
~~96 Id. at 215-216, 218.~~
~~97 Id. at 232.~~
~~98 Id. at 229-230.~~
~~99 Id. at 231.~~
~~100 Young, 575 U.S at 230.~~
~~101 Id.~~
~~102 Id. at 229.~~
~~103 Id. at 232.~~
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~~nondiscriminatory reasons for treating individuals within a protected class differently than those~~
~~outside the protected class.”104~~
~~Justice Alito, concurring in the judgment, agreed that a mere antidiscrimination rule would render~~
~~the second phrase of the PDA, which “raises several difficult questions of interpretation,”~~
~~superfluous.105 In Justice Alito’s view, the PDA required courts to compare pregnant workers~~
~~seeking an accommodation to workers doing identical or similar work.106 In addition, courts~~
~~should look to workers “similar in relation to the ability to work”—that is, courts must consider~~
~~the reason for that inability.107 In~~ support of this constrained view of accommodations, Justice support of this constrained view of accommodations, Justice
Alito pointed out that the PDA does not use the broad language that the ADA and Title VII’s Alito pointed out that the PDA does not use the broad language that the ADA and Title VII’s
protections for religious practice employ, both of which explicitly protections for religious practice employ, both of which explicitly require some some
“accommodation” unless it would impose an “undue hardship.”“accommodation” unless it would impose an “undue hardship.”~~108~~106
In dissent, Justice Scalia In dissent, Justice Scalia, joined by Justices Kennedy and Thomas, concluded that the PDA did not offer pregnant workers protection concluded that the PDA did not offer pregnant workers protection
exceeding that of other protected classes.exceeding that of other protected classes.~~109~~107 In amending Title VII, Congress In amending Title VII, Congress simply made clear that made clear that
pregnancy discrimination is sex discriminationpregnancy discrimination is sex discrimination~~, but it did not create~~, in , in Justice Scalia’s view.108 Under this reading, an employer need not offer pregnant workers the accommodations offered for injury, because injury is different from pregnancy. Scalia would not have required any holistic analysis of an employer’s accommodation rules and their burden on pregnant employees. According to Justice Scalia, an employer simply~~Justice Scalia’s view, any~~
~~“freestanding ban on pregnancy discrimination.”110 Accordingly, he concluded, “pregnant women~~
~~are entitled to accommodations on the same terms as other workers with disabling conditions.”111~~
~~This means that a court must consider the reasons for the employees’ inability to work when~~
~~comparing pregnant and nonpregnant workers. An employer need not offer pregnant workers the~~
~~adjustments offered for disability or injury, although it~~ may not “single[] pregnancy out for may not “single[] pregnancy out for
disfavor” as did the benefits plan in disfavor” as did the benefits plan in Gilbert.~~112~~109 The PDA’s second phrase The PDA’s second phrase ~~serves~~served to add, in Justice to add, in Justice
Scalia’s judgment, “clarity,” not a new substantive protection.Scalia’s judgment, “clarity,” not a new substantive protection.~~113 Justice Kennedy joined this~~
~~dissent and, in a separate dissent,~~110 In a separate dissent, Justice Kennedy also pointed out that at UPS “[m]any other workers with health- pointed out that at UPS “[m]any other workers with health-
related restrictions were not accommodated either.”related restrictions were not accommodated either.”~~114~~111
Lower Courts’ Application of Young
Under the PDA, plaintiffs may raise both a “traditional” Title VII claim ( Under the PDA, plaintiffs may raise both a “traditional” Title VII claim (~~that an employer~~
~~imposed some~~ such as harassment or adverse action adverse action ~~with a discriminatory motive or harassed an employee~~against a pregnant person with a discriminatory motive) and a PDA-) and a PDA-
specific claim (that the employer did not accommodate pregnant women as it did others specific claim (that the employer did not accommodate pregnant women as it did others ~~of similar~~
~~working ability).115~~similarly situated).112 Young expounded on a test for the second type of claim, requiring courts to expounded on a test for the second type of claim, requiring courts to
evaluate whether accommodation policies excluding pregnant workers “impose a significant evaluate whether accommodation policies excluding pregnant workers “impose a significant
burden on pregnant workers” and burden on pregnant workers” and whether the “legitimate, nondiscriminatory reasons” for the policies are the “legitimate, nondiscriminatory reasons” for the policies are
~~not~~ “sufficiently strong to justify the burden.”“sufficiently strong to justify the burden.”~~116~~113 This second type of claim has proven difficult to This second type of claim has proven difficult to

~~104 Id. at 230.~~
~~105 Id. at 233 (Alito, J., concurring).~~
~~106 Young, 575 U.S at 234. (Alito, J., concurring).~~
~~107 Id. at 233 (Alito, J., concurring).~~
~~108 Id. (Alito, J., concurring).~~
~~109~~adjudicate.114 What is clear from Young is that employers may offer light duty or other work modifications to some workers and exclude pregnant workers from those accommodations, but the exclusion must be justified.115 Otherwise, Young does not provide a hard-and-fast rule for assessing pregnancy accommodations. As one Eleventh Circuit judge pointed out, the Supreme Court’s decision left “gaps . . . in our understanding of how trial courts should proceed in PDA cases” once there is a preliminary showing of different treatment.116 105 Id. at 234 (Alito, J., concurring). 106 Id. at 238 (Alito, J., concurring). 107 Id. at 244 (Scalia, J., dissenting, joined by Kennedy and Thomas, JJ.). . at 244 (Scalia, J., dissenting, joined by Kennedy and Thomas, JJ.).
~~110~~108 Id. (Scalia, J., dissenting). . (Scalia, J., dissenting).
~~111~~109 Id.~~. at 242 (Scalia, J., dissenting).~~
112 Young~~, 575 U.S~~ at 246 (Scalia, J., dissenting). at 246 (Scalia, J., dissenting).
~~113~~110 Id. at 245 (Scalia, J., dissenting). . at 245 (Scalia, J., dissenting).
~~114~~111 Id. at 251 (Kennedy, J., dissenting). . at 251 (Kennedy, J., dissenting).
~~115~~112 42 U.S.C. § 2000e(k); Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463, 475 (D.D.C. 2016). 42 U.S.C. § 2000e(k); Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463, 475 (D.D.C. 2016).
~~116~~113 Young, 575 U.S. at 229 (internal quotation , 575 U.S. at 229 (internal quotation ~~mark~~marks omitted); omitted); see also Allen-Brown, 174 F. Supp. 3d at 475, 174 F. Supp. 3d at 475 –77 (applying Young). 114 One commentator, stating that Young’s “holding is complicated and not perfectly clear,” indicated that employers may be inclined to voluntarily extend pregnancy accommodations in order to be “safe rather than sorry.” Areheart, supra note 79, at 1128 n.7. 115 Young, 575 U.S. at 229. 116 Durham v. Rural/Metro Corp., 955 F.3d 1279, 1288 (11th Cir. 2020) (Boggs, J., concurring). Business leaders, too, (continued...) Congressional Research Service 12 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers Part of the difficulty arises from the complex facts in Young. Young pointed to many, dissimilar workers whom UPS accommodated, including some accommodated because of non-PDA legal obligations and others (such as those who lost licensure) accommodated for unknown reasons.117 As a ~~(applying~~
Young).
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~~adjudicate.117 Young does not provide a hard-and-fast rule for assessing pregnancy~~
~~accommodations, given its focus on case-by-case analysis of an employer’s accommodations for~~
~~nonpregnant workers in comparison with pregnant ones. What is clear from Young is that~~
~~employers may sometimes offer light duty or other work modifications to some workers and~~
~~exclude pregnant workers from those accommodations, at least if pregnant women are not singled~~
~~out without justification.118~~
~~Courts have struggled with application of the Young test; as one Eleventh Circuit judge has~~
~~pointed out, the Supreme Court’s decision left “gaps . . . in our understanding of how trial courts~~
~~should proceed in PDA cases once a prima facie case is made.”119 Business leaders, too, note that~~
~~employers “face great uncertainty” about pregnancy accommodations.120~~
~~Part of the difficulty arises from the complex facts in Young. Young pointed to numerous,~~
~~dissimilar workers whom UPS accommodated, including some accommodated because of the~~
~~ADA and others (such as those who lost licensure) accommodated for unknown reasons.121 As a~~
~~result, lower courts applying Young have struggled to determine which types of accommodations~~
~~matter~~ ~~in the PDA context.122~~result, lower courts applying Young have struggled to determine which accommodation circumstances matter in the PDA context.118 The ultimate inquiry, however, remains the question of “whether the The ultimate inquiry, however, remains the question of “whether the
employer’s actions employer’s actions ~~gave~~g[i]ve rise to rise to [a] valid inference of unlawful discrimination.”valid inference of unlawful discrimination.”~~123~~119
At the very least, At the very least, Young made it harder for pregnant workers to prevail made it harder for pregnant workers to prevail inunder the PDA on a claim that they should a claim that they should
be accommodated because other workers are accommodated. be accommodated because other workers are accommodated. Young overturned the rule, overturned the rule,
~~previously~~once applied in some courts, that pregnant workers could show discrimination by applied in some courts, that pregnant workers could show discrimination by
simply identifying other employeesidentifying other employees~~, even those injured on the job, as examples of how pregnant workers~~
~~must be accommodated.124~~ receiving accommodations as comparators.120 Instead, as the Second Circuit Instead, as the Second Circuit ~~noted~~stated, “[w]hether it is appropriate to , “[w]hether it is appropriate to
infer a discriminatory intent from the pattern of exceptions in a particular workplace will depend infer a discriminatory intent from the pattern of exceptions in a particular workplace will depend
on the inferences that can be drawn from that pattern and the credibility of the employer’s on the inferences that can be drawn from that pattern and the credibility of the employer’s
purported reasons for adopting them.”purported reasons for adopting them.”~~125 In considering the case of a pregnant corrections officer,~~
~~the Second Circuit went on to hold that she had shown potential discrimination where her~~
~~employer accommodated some injured employees, but no pregnant workers, with light duty.126~~

~~117 One commentator, stating that Young’s “holding is complicated and not perfectly clear,” concluded that employers~~
~~may be inclined to voluntarily extend pregnancy accommodations, “being safe rather than sorry.” Areheart, supra note~~
~~79 at 1128 n.7.~~
~~118 Young, 575 U.S. at 229.~~
~~119 Durham v. Rural/Metro Corp., 955 F.3d 1279, 1288 (11th Cir. 2020) (Boggs, J., concurring).~~
~~120 U.S. Chamber of Commerce,~~ 121 Post-Young, some pregnant workers have still managed to raise an inference of discrimination based on the denial of accommodations granted to other workers. For example, a D.C. district court held that a police officer had raised an inference of discrimination when her department awarded light duty to 11 other officers but refused her request for light duty after she found it too painful to wear a bulletproof vest while breastfeeding.122 For the most part, applying Young, courts require pregnant workers to identify a very similar situation when the employer accommodated a nonpregnant worker before they will infer discrimination against a pregnant worker. One factor courts have considered is whether employees’ accommodation needs derive from on-the-job versus off-the-job sources. For example, the Eleventh Circuit considered the case of an emergency medical technician whose pregnancy imposed lifting restrictions.123 The lower court had concluded that employees accommodated for on-the-job injuries were comparable, but the Eleventh Circuit remanded the case so that the lower court could consider the employer’s claimed reasons for treating on-the-job injury and pregnancy differently.124 Similarly, the Seventh Circuit concluded that a retailer who offered light duty only for on-the-job injuries did not violate the PDA in denying light duty for have noted that employers “face great uncertainty” about pregnancy accommodations. Chamber of Com. of the U.S., U.S. Chamber Key Vote Letter on the Pregnant Workers Fairness Act (Sept. 14, U.S. Chamber Key Vote Letter on the Pregnant Workers Fairness Act (Sept. 14,
2020), https://www.uschamber.com/letters-congress/us-chamber-key-vote-letter-the-pregnant-workers-fairness-act (last 2020), https://www.uschamber.com/letters-congress/us-chamber-key-vote-letter-the-pregnant-workers-fairness-act (last
visited June visited June ~~14, 2021).~~
~~121~~7, 2023). 117 Durham, 955 F.3d at 1288 (Boggs, J., concurring); Lewis v. City of Union City, , 955 F.3d at 1288 (Boggs, J., concurring); Lewis v. City of Union City, ~~Georgia,~~ 918 F.3d 1213, 1228 n.14 918 F.3d 1213, 1228 n.14
(11th Cir. 2019) (noting (11th Cir. 2019) (noting Young identified seven types of accommodated workers, including some accommodated identified seven types of accommodated workers, including some accommodated
because of other laws or collective bargaining agreements). because of other laws or collective bargaining agreements).
~~122~~118 Durham, 955 F.3d at 1288 (Boggs, J., concurring). One commenter concluded that, under , 955 F.3d at 1288 (Boggs, J., concurring). One commenter concluded that, under Young, employers who , employers who
accommodate some employees and exclude pregnant employees face “substantial liability risk.” Sara Alexander, accommodate some employees and exclude pregnant employees face “substantial liability risk.” Sara Alexander, Labor
Pains: The Inadequacies of Current Federal Pregnancy Laws and the Alternative Routes to Accommodation, 37 MISS. , 37 MISS.
C. L. REV. 152, 171 (2019). C. L. REV. 152, 171 (2019).
~~123~~119 Durham, 955 F.3d at , 955 F.3d at ~~1288~~1289 (Boggs, J., concurring) (internal quotation marks and citation omitted). (Boggs, J., concurring) (internal quotation marks and citation omitted).
~~124~~120 Young v. United Parcel Serv., Inc., 575 U.S. 206, Young v. United Parcel Serv., Inc., 575 U.S. 206, ~~218~~210 (2015); Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th (2015); Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th
Cir. 1996); Cir. 1996); see also EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1196 (10th Cir. 2000). EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1196 (10th Cir. 2000).
~~125~~121 Legg v. Ulster Legg v. Ulster ~~Cty~~Cnty., 820 F.3d 67, 78 (2d Cir. 2016). 122 Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463, 477 (D.D.C. 2016); see also Legg, 820 F.3d at 70–78. 123 Durham v. Rural/Metro Corp., 955 F.3d 1279, 1282–83 (11th Cir. 2020). 124 Id. at 1283, 1287. Congressional Research Service 13 link to page 4 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers pregnant workers.125 These cases reflect that even after pregnant workers identify comparable employees who were granted accommodations, courts may permit employers to justify treating the pregnant workers differently under the PDA. The Second Circuit surmised, for example, that an employer’s cited reason for accommodating nonpregnant employees—compliance with state-law requirements for workers injured on the job—might (if true) justify a disparity.126 Courts have also looked at whether comparators have similar medical restrictions. For instance, in an unpublished, nonprecedential opinion, the Tenth Circuit declined to find that an employer ~~., 820 F.3d 67, 78 (2d Cir. 2016).~~
~~126 Id. at 70-71, 78.~~
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~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~More facts were needed, the court concluded, to decide if the circumstances proved intentional~~
~~discrimination.127~~
~~In a similar case, a D.C. district court concluded that a police officer had raised an inference of~~
~~discrimination because her department awarded light duty to 11 other officers. The department~~
~~refused her request for light duty after she found it too painful to wear a bulletproof vest while~~
~~breastfeeding.128~~
~~For the most part, courts require pregnant workers to identify a very similar situation where the~~
~~employer accommodated a nonpregnant worker before they will infer discrimination against a~~
~~pregnant worker. For example, the Eleventh Circuit considered the case of an emergency medical~~
~~technician whose pregnancy imposed lifting restrictions.129 The employer had assigned others~~
~~with lifting restrictions to light duty, provided they were injured on the job.130 The court~~
~~concluded that although these employees were similar in their ability to work, the lower court~~
~~should have also considered the employer’s reasons for accommodating on-the-job injuries.131 It~~
~~remanded the case.132~~
~~Similarly, in an unpublished, nonprecedential opinion, the Tenth Circuit declined to find an~~
~~employer~~ discriminated against a plaintiff when it gave other workers (and, for a time, the discriminated against a plaintiff when it gave other workers (and, for a time, the
plaintiff) light duty because of lifting restrictions but then denied light duty when plaintiff) light duty because of lifting restrictions but then denied light duty when the plaintiff’s plaintiff’s
~~doctor put limits on~~ doctor restricted her exposure to chemicals.127 A proper comparator would be someone needing an accommodation because of chemical restrictions, the Tenth Circuit held, rather than someone with different medical needs.128 In some cases, there may be no accommodated employees for comparison.~~her exposure to chemicals.133 The court did not see a worker with a chemical~~
~~exposure restriction and one with a lifting restriction as “similar . . . in their ability to work.”134 A~~
~~proper comparator would be someone who received the type of accommodation the pregnant~~
~~employee requested, the Tenth Circuit held, rather than anyone who received an~~
~~accommodation.135~~
~~In Santos v. Wincor Nixdorf, Inc., the Fifth Circuit considered a project analyst’s claim of~~
~~discrimination after she moved to full-time telework during her pregnancy and faced termination~~
~~shortly afterward. She claimed that her performance matched that of other employees, proving~~
~~her pregnancy and accommodation request motivated the termination.136 In an unpublished,~~
~~nonprecedential opinion rejecting her claim, the Fifth Circuit stated that “it is not enough for~~
~~Santos to compare herself to other employees who did not ask for or receive work-from-home~~
~~accommodations of any sort.”137 The PDA required she identify another “employee was similarly~~
~~unable to work in the office for the same duration and at the same stage of his or her~~
~~employment.”138~~

~~127 Id. at 77-78.~~
~~128 Allen-Brown, 174 F. Supp. 3d at 477.~~
~~129 Durham, 955 F.3d at 1282.~~
~~130 Id. at 1283.~~
~~131 Id. at 1287.~~
~~132 Id.~~
~~133 Jackson v. J.R. Simplot Co., 666 F. App’x 739, 743 (10th Cir. 2016).~~
~~134 Id.~~
~~135 Id. (holding comparators relieved of heavy lifting did not compare well with plaintiff, who needed to avoid chemical~~
~~exposure).~~
~~136 Santos v. Wincor Nixdorf, Inc., 778 F. App’x 300, 303-304 (5th Cir. 2019).~~
~~137 Id. at 304.~~
~~138 Id. at 304.~~
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~~Furthermore, even after workers identify comparable employees, courts will permit employers to~~
~~justify treating them differently. The Second Circuit surmised, for example, that an employer’s~~
~~cited reason for accommodating nonpregnant employees, compliance with state-law requirements~~
~~for workers injured on the job, might (if true) justify a disparity.139~~
~~What about cases where there are no~~ ~~accommodated employees for comparison?~~ All in all, when All in all, when
an employer never (or hardly ever) grants an employer never (or hardly ever) grants ~~work restrictions~~accommodations for nonpregnant employees, it for nonpregnant employees, it
generally generally ~~has no obligation~~does not have to accommodate a pregnant employee to accommodate a pregnant employee~~.140 In those circumstances,~~
~~employers need not change job requirements on account of pregnancy.~~ under the PDA.129 For example, shortly after For example, shortly after
Young, the Fifth Circuit held in an unpublished, nonprecedential opinion that a nurse fired , the Fifth Circuit held in an unpublished, nonprecedential opinion that a nurse fired
because of pregnancy-related lifting because of pregnancy-related lifting ~~conditions~~restrictions could not make out a PDA claim could not make out a PDA claim, given that the given that the
employer employer ~~did not accommodate any~~accommodated no other nurses with lifting restrictions.130 Pregnancy and Disparate Impact Under Title VII One type of Title VII claim alleges disparate treatment—that an employee suffered adverse action or harassment because of a protected characteristic.131 Title VII also permits disparate impact claims. In this type of claim, workers challenge a facially neutral employment practice, alleging that it has a disproportionate effect on one group and cannot be justified by business necessity.132 125 Equal Emp. Opportunity Comm’n v. Wal-Mart Stores E., L.P., 46 F.4th 587, 597 (7th Cir. 2022). The court found it significant that the retailer consistently denied light duty requests for all other employees, save those injured at work. 126 Legg, 820 F.3d at 75–78. 127 Jackson v. J.R. Simplot Co., 666 F. App’x 739, 743 (10th Cir. 2016). 128 Id.; see also Santos v. Wincor Nixdorf, Inc., 778 F. App’x 300, 303–04 (5th Cir. 2019) (concluding that employee did not identify a comparator when she could point to no other workers who required telework). 129 ~~other nurses with lifting restrictions.141 As the Fifth Circuit~~
~~saw it, Young required an employee to show “that the employer did accommodate others ‘similar~~
~~in their ability or inability to work.’”142 Because the employee could not identify others who~~
~~received the modification she requested, she could not raise an inference of discrimination against~~
~~pregnant workers.~~
~~The Eleventh Circuit similarly decided in an unpublished, nonprecedential opinion that a hospital~~
~~did not discriminate in denying a pregnant program director work-from-home privileges when she~~
~~faced a high-risk pregnancy.143 The employee could not identify anyone else who had been~~
~~granted full-time telework. Young, the court held, required that the plaintiff show her employer~~
~~“did accommodate others similar in their ability or inability to work.”144 Without that, and~~
~~without any other evidence of “implausibilities, inconsistencies, incoherencies, or contradictions~~
~~in the employer’s proffered legitimate reasons for its action,” the worker could not show~~
~~discriminatory intent.145~~
~~Pregnancy and Disparate Impact Under Title VII~~
~~An archetypal Title VII claim alleges disparate treatment—that an employee suffered adverse~~
~~action or harassment because of a protected characteristic.146 Title VII also permits disparate~~
~~impact claims. In this type of claim, workers challenge a facially neutral employment practice,~~
~~alleging that it has a disproportionate effect on one group and cannot be justified by business~~
~~necessity.147 A disparate impact claimant does not have to show that an employer intended to~~

~~139 Legg v. Ulster Cty., 820 F.3d 67, 75-78 (2d Cir. 2016).~~
~~140~~ See, e.g., Luke v. CPlace Forest Park SNF, L.L.C., 747 F. App’x 978, 980 (5th Cir. 2019) (per curiam); Durham v. ., Luke v. CPlace Forest Park SNF, L.L.C., 747 F. App’x 978, 980 (5th Cir. 2019) (per curiam); Durham v.
Rural/Metro Corp., No. 4:16-CV-01604-ACA, 2020 WL 7024892, at *4 (N.D. Ala. Nov. 30, 2020); Everett v. Grady Rural/Metro Corp., No. 4:16-CV-01604-ACA, 2020 WL 7024892, at *4 (N.D. Ala. Nov. 30, 2020); Everett v. Grady
Mem’l Hosp. Corp., 703 F. App’x 938, 948 (11th Cir. 2017); Lawson v. City of Pleasant Grove, No. 2:14-CV-0536-Mem’l Hosp. Corp., 703 F. App’x 938, 948 (11th Cir. 2017); Lawson v. City of Pleasant Grove, No. 2:14-CV-0536-
JEO, 2016 WL 2338560, at *10 (N.D. Ala. Feb. 16, 2016), report and recommendation adopted, No. 2:14-CV-536-JEO, 2016 WL 2338560, at *10 (N.D. Ala. Feb. 16, 2016), report and recommendation adopted, No. 2:14-CV-536-
KOB, 2016 WL 1719667 (N.D. Ala. Apr. 29, 2016). KOB, 2016 WL 1719667 (N.D. Ala. Apr. 29, 2016).
~~141~~130 Luke, 747 F. App’x at 980. 131 42 U.S.C. § 2000e-2(a)(1); EEOC ENFORCEMENT GUIDANCE, supra note 2; Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 132 Luke, 747 F. App’x at 980.
~~142 Id. (quoting Young).~~
~~143 Everett v. Grady Mem’l Hosp. Corp., 703 F. App’x 938, 948 (11th Cir. 2017).~~
~~144 Id. (quoting Young).~~
~~145 Id. (internal quotation marks and citation omitted). As before Young, a plaintiff need not draw comparisons with~~
~~other, nonpregnant employees if there is other circumstantial evidence of discrimination. Hamilton v. Southland~~
~~Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012).~~
~~146 42 U.S.C. § 2000e-2(a)(1); EEOC Enforcement Guidance, supra note 3; Harris, 510 U.S. at 21.~~
~~147~~ Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971); 42 U.S.C. § 2000e-2(k)(1). For further discussion of this Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971); 42 U.S.C. § 2000e-2(k)(1). For further discussion of this
theory, see CRS Report R46534, theory, see CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back, at 72, by Christine J. Back, at 72 (2020). A disparate . A disparate
impact theory is distinct from the “significant burden” inquiry announced in impact theory is distinct from the “significant burden” inquiry announced in Young~~, although, in the dissenters’ view,~~
~~Congressional Research Service~~
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~~link to page 16 link to page 19~~ v. United Parcel Serv., Inc., 575 U.S. 206, 213 (2015), although, in the dissenters’ view, the Young test risks conflating disparate treatment (i.e., intentional discrimination) with disparate impact (i.e., use of policies with discriminatory effects), 575 U.S. at 249 (Scalia, J., dissenting) (noting “Title VII already has a framework that allows judges to home in on a policy’s effects and justifications—disparate impact.”); id. at 253 (Kennedy, J., dissenting) (“[T]he Court interprets the PDA in a manner that risks conflation of disparate impact with disparate treatment by permitting a plaintiff to use a policy’s disproportionate burden on pregnant employees as evidence of pretext.” (internal quotation marks omitted)). Congressional Research Service 14 link to page 16 link to page 18 link to page 4 link to page 4 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers

A disparate impact claimant does not have to show that an employer intended to single anyone out based on a protected characteristic such as race or sex.single anyone out based on a protected characteristic such as race or sex. Before the PDA Before the PDA
overruled overruled Gilbert and set up special provisions for pregnancy, the Supreme Court had stated in and set up special provisions for pregnancy, the Supreme Court had stated in
nonbinding dicta that pregnant women could bring disparate impact claims under nonbinding dicta that pregnant women could bring disparate impact claims under ~~Title VII.148 The~~
~~Court cited precedent establishing disparate impact theory for claims based on race and noted that~~
~~“a violation. . . can be established by proof of a discriminatory effect.”149~~
~~After the PDA amended Title VII, however~~Title VII.133 However, some have argued that the PDA precludes a , some have argued that the PDA precludes a ~~typical~~
Title VII disparate impact Title VII disparate impact claim based on pregnancy~~claim~~ because it requires that a pregnant worker be treated the same as because it requires that a pregnant worker be treated the same as
others.others.~~150~~134 Thus, the argument goes, similar treatment cannot be a violation even if it has a Thus, the argument goes, similar treatment cannot be a violation even if it has a
disparate impact.disparate impact.~~151 Nevertheless~~135 Still, several courts have considered , several courts have considered ~~these~~disparate impact claims under the PDA. claims under the PDA.~~152~~
136 The Seventh Circuit emphasized that the PDA is “a definitional amendment” providing “no The Seventh Circuit emphasized that the PDA is “a definitional amendment” providing “no
substantive rule to govern pregnancy discrimination.”substantive rule to govern pregnancy discrimination.”~~153 Accordingly, it did not undermine~~137 As such, the court found that the PDA did not eliminate any any
~~claims that Title VII generally provides. Others point out, in addition,~~claims otherwise available under Title VII for pregnancy discrimination. Others also point out that while the that while the Young Court Court
~~noted~~acknowledged the plaintiff had not brought a disparate impact claim the plaintiff had not brought a disparate impact claim ~~(i.e., she alleged that UPS~~
~~intentionally denied accommodations for pregnant women, not that a neutral policy had a~~
~~disproportionate effect)~~, it made no suggestion that such a claim is unavailable for pregnant , it made no suggestion that such a claim is unavailable for pregnant
employees.employees.~~154~~
~~Furthermore,~~ 138 EEOC enforcement guidance endorses application of a disparate impact theory to EEOC enforcement guidance endorses application of a disparate impact theory to
~~pregnancy claims. Indeed, the~~pregnancy discrimination claims. The agency states that while disparate impact claims usually require a agency states that while disparate impact claims usually require a
statistical showing of the statistical showing of the ~~harmful effect~~harm of a policy on a protected group, “statistical evidence might not be required if it could be , “statistical evidence might not be required if it could be
shown that all or substantially all pregnant women would be negatively affected by the shown that all or substantially all pregnant women would be negatively affected by the
challenged policy.”challenged policy.”~~155~~
~~Other Federal Protections for Pregnant Workers~~
~~While~~139 The ADA, Pregnancy-Related Disabilities, and Accommodations Separate from Title VII and the PDA Title VII and the PDA ~~address~~’s protections against certain forms of pregnancy discrimination, the ADA may also provide pregnancy-related protections in some circumstances (although its usefulness may be diminished in the future in light of the Pregnant Workers Fairness Act [PWFA], as discussed below). Title I of the ADA requires that employers reasonably accommodate workers with disabilities.140 While pregnancy per se is not a disability under the ADA,141 some women are eligible for protection under the ADA for pregnancy-related 133 Nashville Gas Co. v. Satty, 434 U.S. 136, 144 (1977). The Supreme Court cited precedent establishing a disparate impact theory for claims based on race and stated that “a violation . . . can be established by proof of a discriminatory effect.” Id. In considering Gilbert, the Court suggested that differences in how employee benefits programs treat pregnancy vis-à-vis other medical conditions, in contrast to policies resulting in lesser ~~certain forms of discrimination based on pregnancy, at least~~
~~two other federal laws also provide pregnancy-related protections. These protections generally~~

~~the Young test risks conflating disparate treatment (i.e., intentional discrimination) with disparate impact (i.e., use of~~
~~policies with discriminatory effects). 575 U.S. 249 (Scalia, J., dissenting) (noting “Title VII already has a framework~~
~~that allows judges to home in on a policy’s effects and justifications—disparate impact.”), 253 (Kennedy, J.,~~
~~dissenting) (“[T]he Court interprets the PDA in a manner that risks conflation of disparate impact with disparate~~
~~treatment by permitting a plaintiff to use a policy’s disproportionate burden on pregnant employees as evidence of~~
~~pretext.”)(internal quotation marks omitted).~~
~~148 Nashville Gas Co. v. Satty, 434 U.S. 136, 144 (1977). In considering Gilbert, the Court suggested that any disparate~~
~~impact based on a benefits program, rather than~~ “employment opportunities or job status” “employment opportunities or job status” for pregnant workers, would not support a disparate would not support a disparate
impact claim. impact claim.
~~149 Id. (the court held, however,~~Id. at 145. The Court ultimately held that a pregnant worker’s claim that a pregnant worker’s claim ~~about~~based on sick pay policies must fail under sick pay policies must fail under Gilbert).
~~150~~. 134 Camille Herbert, Camille Herbert, Disparate Impact and Pregnancy: Title VII’s Other Accommodation Requirement,, 24 J. GENDER, 24 J. GENDER,
SOCIAL POLICY & THE LAW 107, 137 (2015); Alexander, SOCIAL POLICY & THE LAW 107, 137 (2015); Alexander, supra nonote ~~122 a~~t118, at 159; Cal. Fed. Sav. & Loan Ass’n v. Guerra, 159; Cal. Fed. Sav. & Loan Ass’n v. Guerra,
479 U.S. 272, 298 n.1 (1987) (White, J., dissenting). 479 U.S. 272, 298 n.1 (1987) (White, J., dissenting).
~~151~~ 135 Cal. Fed. Sav. & Loan Ass’n, 479 U.S. at 298 n.1 (White, J., dissenting) (“Whatever remedies Title VII would Cal. Fed. Sav. & Loan Ass’n, 479 U.S. at 298 n.1 (White, J., dissenting) (“Whatever remedies Title VII would
otherwise provide for victims of disparate impact, Congress expressly ordered pregnancy to be treated in the same otherwise provide for victims of disparate impact, Congress expressly ordered pregnancy to be treated in the same
manner as other disabilities.”). manner as other disabilities.”).
~~152~~136 Smith v. F.W. Morse & Co., 76 F.3d 413, 420 Smith v. F.W. Morse & Co., 76 F.3d 413, 420–22 (1st Cir. 1996); Scherr v. Woodland Sch. Cmty. Consol. Dist., 867 (1st Cir. 1996); Scherr v. Woodland Sch. Cmty. Consol. Dist., 867
F.2d 974F.2d 974, 983 (7th Cir. 1988); Germain v. (7th Cir. 1988); Germain v. ~~Cty~~Cnty. of Suffolk, 672 F. Supp. 2d 319, 321 (E.D.N.Y. 2009). . of Suffolk, 672 F. Supp. 2d 319, 321 (E.D.N.Y. 2009).
~~153~~137 Scherr, 867 F.2d at 978. , 867 F.2d at 978.
154 Young~~, 575 U.S. at 213~~138 Young v. United Parcel Serv., Inc., 575 U.S. 206, 213 (2015); Herbert, supra note 134, at 138. 139 EEOC ENFORCEMENT GUIDANCE, supra note 2. 140 42 U.S.C. § 12112(5). 141 29 C.F.R. pt. 1630, app. § 1630.2(h); Young, 575 U.S. at 253 (Kennedy, J., dissenting). Congressional Research Service 15 link to page 4 link to page 4 link to page 4~~; Herbert, supra note 150 at 138 (noting the Court’s conclusion that Young did not assert a~~
~~disparate impact claim and that the “Court did not suggest that she could not have brought such a claim.”).~~
~~155 EEOC Enforcement Guidance, supra note 3.~~
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~~involve accommodations for pregnant workers with disabilities—including pregnancy-related~~
~~medical conditions—and unpaid leave for illness and family care. In general, however, federal~~
~~law does not require paid leave for pregnant workers or accommodation for pregnant,~~
~~nondisabled workers. Eligible federal employees are entitled to paid parental leave.156~~
~~The Family and Medical Leave Act and Unpaid, Job-Protected~~
~~Leave~~
~~The Family and Medical Leave Act (FMLA) requires certain employers to grant unpaid leave for~~
~~illness and some family responsibilities. Eligible workers may invoke the FMLA to, for example,~~
~~obtain time off work for pregnancy-related issues, including prenatal care.157 Most employees~~
~~may request up to 12 weeks of job-protected leave. The law does not require accommodations for~~
~~pregnant women in the workplace, however.~~
~~Not all workers are eligible for FMLA leave. Among other requirements, an employee must~~
~~accrue at least a year of service before taking leave, and employers of fewer than 50 employees~~
~~need not offer FMLA leave.158 Private- and public-sector employees are covered, but members of~~
~~the armed forces are not.159~~
~~The ADA, Pregnancy-Related Disabilities, and Accommodations~~
~~Title I of the ADA requires that employers reasonably accommodate workers with disabilities.160~~
~~The Rehabilitation Act creates similar obligations for federal employers and federally funded~~
~~programs.161 The EEOC enforces these provisions.162 Workers first request a workplace change~~
~~and engage in an “interactive process” with employers to work out a reasonable~~
~~accommodation.163 If employers fail to make an accommodation where required, employees may~~
~~file a complaint with the EEOC and, ultimately, sue in federal court.164 If they prevail on a claim~~
~~of discrimination or retaliation, employees may seek equitable relief and damages including back~~
~~pay, attorney’s fees, and punitive damages.165~~

~~156 5 U.S.C. § 6382; 5 C.F.R. § 630.1703.~~
~~157 29 U.S.C. § 2601; Walter E. Zink II & Jill Gradwohl Schroeder,~~ ~~Evaluating The Interplay Among FMLA, ADA and~~
~~Workers’ Comp Statutes Isn’t Child’s Play, 66 DEF. COUNS. J. 79, 84 (1999). For an overview of the FMLA, see CRS~~
~~Report R44274, The Family and Medical Leave Act: An Overview of Title I, by Sarah A. Donovan.~~
~~158 29 U.S.C. § 2611(2); nearly a decade ago, it was estimated that some 40 percent of workers are not covered. ABT~~
~~ASSOCIATES, FAMILY MEDICAL LEAVE IN 2012: TECHNICAL REPORT at i,~~
~~https://www.dol.gov/sites/dolgov/files/OASP/legacy/files/TECHNICAL_REPORT_family_medical_leave_act_survey.~~
~~pdf. In 2012, 21% of FMLA leave was taken because of a pregnancy or a new child. Id. at ii.~~
~~159 29 U.S.C. §§ 2611(4); 203(e)(2).~~
~~160 42 U.S.C. § 12112(5).~~
~~161~~ Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers disabilities, provided they can perform essential job functions. An ADA-qualifying impairment is one that “substantially limits one or more” of a person’s “major life activities.”142 The Rehabilitation Act creates similar obligations for federally funded programs and most federal employers.143 The EEOC enforces these provisions.144 The Congressional Accountability Act applies ADA and Rehabilitation Act standards to legislative employees.145 The ADA’s application to pregnancy is a recent development in the law.146 In recent years, courts have applied the ADA to cover postpartum depression,147 recovery from a caesarian section,148 lifting restrictions,149 and pelvic pain.150 Other complications of pregnancy can include anemia, sciatica, carpal tunnel syndrome, gestational diabetes, nausea with severe dehydration, abnormal heart rhythms, and swelling.151 These medical conditions can be disabilities under the ADA if they substantially affect major life activities.152 Examples of potential ADA accommodations for pregnancy-related disabilities include “allowing a pregnant worker to take more frequent breaks, to keep a water bottle at a work station, or to use a stool; altering how job functions are performed; or providing a temporary assignment to a light duty position.”153 Potential ADA accommodations for pregnancy, like other ADA accommodations, are considered case-by-case, reflecting the worker’s impairment and workplace circumstances. Under the ADA, protected workers first request a workplace change and engage in an “interactive process” with employers to work out a reasonable accommodation.154 A reasonable accommodation is one that is “feasible,” “plausible,” and reasonable “in the run of cases.”155 If 142 Young, 575 U.S. at 218; 42 U.S.C. § 12102(1)(A). 143 29 U.S.C. §§ 791, 794; Khan v. Midwestern Univ., 879 F.3d 838, 843 (7th Cir. 2018), as amended on denial of 29 U.S.C. §§ 791, 794; Khan v. Midwestern Univ., 879 F.3d 838, 843 (7th Cir. 2018), as amended on denial of
reh’g (Feb. 26, 2018) (applying Rehabilitation Act to medical student claiming pregnancy-related disability). reh’g (Feb. 26, 2018) (applying Rehabilitation Act to medical student claiming pregnancy-related disability).
~~162~~144 42 U.S.C. § 12117(a); EEOC 42 U.S.C. § 12117(a); EEOC ~~Enforcement Guidance~~ENFORCEMENT GUIDANCE, , supra no~~te 3~~note 2. The EEOC’s Office of Federal Operations The EEOC’s Office of Federal Operations
enforces Rehabilitation Act provisions for federal employees. enforces Rehabilitation Act provisions for federal employees. Appeals, EEOC, https://www.eeoc.gov/federal-
~~sector/appeals (last visited June 14, 2021).~~
~~163 29 C.F.R. § 1630.2(o)(3).~~
164 Filing a Lawsuit~~, EEOC,~~ U.S. EQUAL EMP. OPPORTUNITY COMM’N, APPEALS, https://www.eeoc.gov/https://www.eeoc.gov/~~filing-lawsuit~~federal-sector/appeals (last visited June (last visited June ~~14, 2021).~~
~~165 Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529, 534 (1999); Bruce v. City of Gainesville, Ga., 177 F.3d 949, 951~~
~~(11th Cir. 1999); 42 U.S.C. § 1981; 42 U.S.C. § 12205; Remedies for Employment Discrimination, EEOC,~~
~~https://www.eeoc.gov/remedies-employment-discrimination (last visited June 14, 2021).~~
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~~While pregnancy is not a disability within the meaning of the ADA,166 some women are eligible~~
~~for protection under the ADA for pregnancy-related conditions. A qualifying impairment is one~~
~~that “substantially limits one or more” of her “major life activities.”167 The ADA’s application to~~
~~pregnancy is a relatively recent development in the law.~~7, 2023). 145 2 U.S.C. 1302(a). 146 Until it was amended in 2008 to expand Until it was amended in 2008 to expand
the statutory definition of “disability,” the ADA generally did not protect workers with short-term the statutory definition of “disability,” the ADA generally did not protect workers with short-term
~~disabilities, such as those most commonly associated with pregnancy.168 Because the plaintiff~~
~~relied on pre-2008 law, the Supreme Court in the Young case did not decide whether the ADA~~
~~would require the lifting restriction that she requested.169~~
~~In recent years, courts have applied the ADA to cover postpartum depression,170 recovery from a~~
~~caesarian section,171 lifting restrictions,172 and pelvic pain.173 Other complications of pregnancy~~
~~include anemia, sciatica, carpal tunnel syndrome, gestational diabetes, nausea with severe~~
~~dehydration, abnormal heart rhythms, and swelling.174 These medical conditions can be~~
~~disabilities if they substantially affect major life activities.175 Once a woman shows she is a~~
~~person with a disability under the ADA, the law requires the employer to engage in an interactive~~
~~process, if needed, to identify a reasonable accommodation that will allow her to fulfill her~~
~~essential job duties.176~~
~~The EEOC reports, as examples of potential workplace accommodations for pregnancy~~
~~disabilities under the ADA and Rehabilitation Act, “allowing a pregnant worker to take more~~
~~frequent breaks, to keep a water bottle at a work station, or to use a stool; altering how job~~
~~functions are performed; or providing a temporary assignment to a light duty position.”177~~
~~Potential ADA accommodations for pregnancy, like other ADA accommodations, are considered~~
~~on a case-by-case basis, taking into account the worker’s impairment and workplace~~
~~circumstances.~~
~~An employer need not provide an accommodation that imposes an undue hardship on business~~
~~operations.178 Undue hardship, too, requires a case-by-case analysis taking into account such~~
~~factors as the nature and cost of the accommodation, the employer’s resources, and the size and~~
~~function of its workforce.179 The employer bears the burden of showing an undue hardship, once~~
~~the employee identifies a reasonable accommodation.180 Courts have been reluctant to delineate a~~

~~166 29 C.F.R. pt. 1630, app. § 1630.2(h)~~
~~167 Young, 575 U.S. at 253 (Kennedy, J., dissenting); 42 U.S.C. § 12102(1)(A).~~
~~168~~disabilities, such as those most commonly associated with pregnancy. 42 U.S.C. § 12102(4)(A); ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 42 U.S.C. § 12102(4)(A); ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008); Young; Young v. United Parcel Serv., Inc., 575 , 575
U.S. U.S. at206, 252 ( 252 (2015) (Kennedy, J., dissenting). The expanded disability coverageKennedy, J., dissenting). The expanded disability coverage from the ADA Amendments Act also applies also applies ~~under the~~to Rehabilitation Act Rehabilitation Act;
claims. Alexander v. Washington Alexander v. Washington ~~Metropolitan~~Metro. Area Transit Area Transit ~~Authority~~Auth., 826 F.3d 544, 547, 826 F.3d 544, 547~~, 423~~ (D.C. Cir. 2016). (D.C. Cir. 2016).
~~169~~Because the plaintiff relied on pre-2008 law, the Supreme Court in the Young case did not decide whether the ADA would require the lifting accommodation she requested. Young, 575 U.S. at 252 (Kennedy, J., dissenting). , 575 U.S. at 252 (Kennedy, J., dissenting).
~~170~~ 147 Hostettler v. Coll. of Wooster, 895 F.3d 844, 854 (6th Cir. 2018). Hostettler v. Coll. of Wooster, 895 F.3d 844, 854 (6th Cir. 2018).
~~171~~148 Price v. UTi, U.S., Inc., No. 4:11-CV-1428 CAS, 2013 WL 798014, at *2 Price v. UTi, U.S., Inc., No. 4:11-CV-1428 CAS, 2013 WL 798014, at *2-–3 (E.D. Mo. Mar. 5, 2013). 3 (E.D. Mo. Mar. 5, 2013).
~~172~~149 Heatherly v. Portillo’s Hot Dogs, Inc., 958 F. Supp. 2d 913, 921 (N.D. Ill. 2013). Heatherly v. Portillo’s Hot Dogs, Inc., 958 F. Supp. 2d 913, 921 (N.D. Ill. 2013).
~~173~~150 McKellips v. Franciscan Health Sys., No. C13-5096MJP, 2013 WL 1991103, at *4 (W.D. Wash. May 13, 2013). McKellips v. Franciscan Health Sys., No. C13-5096MJP, 2013 WL 1991103, at *4 (W.D. Wash. May 13, 2013).
174 EEOC Enforcement Guidance, supra note 3; Pregnancy~~, U.S. Dep’t of Health & Human Servs.~~151 U.S. DEP’T OF HEALTH & HUMAN SERVS., OFF. ON WOMEN’S HEALTH, PREGNANCY COMPLICATIONS, ,
https://www.womenshealth.gov/pregnancy/youre-pregnant-now-what/pregnancy-complications (last visited June https://www.womenshealth.gov/pregnancy/youre-pregnant-now-what/pregnancy-complications (last visited June ~~14,~~
~~2021).~~
~~175~~7, 2023). 152 42 U.S.C. § 12102(1)(A); EEOC 42 U.S.C. § 12102(1)(A); EEOC ~~Enforcement Guidance~~ENFORCEMENT GUIDANCE, supra note 2; Hostettler, 895 F.3d at 854. 153 EEOC ENFORCEMENT GUIDANCE, supra note 2. 154 29 C.F.R. § 1630.2(o)(3). 155 US Airways, Inc. v. Barnett, 535 U.S. 391, 401–02 (2002) (holding appropriate accommodation is one that “seems reasonable on its face, i.e., ordinarily or in the run of cases”); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001) (discussing precedent and concluding that “a plaintiff needs to show not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of (continued...) Congressional Research Service 16 link to page 7~~, supra note 3; Hostettler, 895 F.3d at 854.~~
~~176 Frazier-White v. Gee, 818 F.3d 1249, 1257 (11th Cir. 2016); 29 C.F.R. § 1630.2(o)(3).~~
~~177 EEOC Enforcement Guidance, supra note 3.~~
~~178 Terrell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998).~~
~~179 42 U.S.C. § 12111(10)(B).~~
~~180 LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 767 (W.D. Mich. 2001); Severson v. Heartland Woodcraft,~~
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~~bright-line rule, holding it “a fact-specific, individualized inquiry.”181 For example, one district~~
~~court declined to grant defendant summary judgment on a pharmacist’s request for one day of~~
~~medical leave, suggesting that whether this was an undue burden depended on such factors as~~
~~whether the employer had a replacement pharmacist.182 In another case of a schedule change~~
~~request, in which an orthopedic technician asked for an earlier lunch break to mitigate nausea, a~~
~~district court in Pennsylvania concluded that a jury could reasonably reject defendant’s claim of~~
~~undue hardship.183~~
~~The ADA excludes some employers and employees from coverage. The statute applies to~~
~~employers of more than 15 employees, and private clubs and religious employers are afforded~~
~~certain exemptions.184~~
~~Executive Order 13152 and Discrimination Based on Parental Status~~
~~It addition to the protections of the PDA, federal executive employees—men and women—enjoy~~
~~protection from intentional discrimination based on parental status. Executive Order 13152 bars~~
~~“discrimination in employment because of . . . status as a parent.”185 The Office of Personnel~~
~~Management (OPM) administers the order, and agencies generally conduct internal investigation~~
~~and adjudication of complaints.186 The order does not require accommodation for parents or~~
~~create enforcement rights, such as recourse to EEOC adjudication.187 While the order would not~~
~~provide protection for pregnancy per se, it does bar discrimination on account of soon-to-be~~
~~motherhood.188 An example of discrimination, OPM has explained, includes stereotypes that~~
~~parents of young children should not work or lack commitment to work.189~~

Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers employers fail to make an accommodation where required, employees may file a complaint with the EEOC and, ultimately, sue in federal court.156 Employees may seek equitable relief and damages as under Title VII, including, depending on the circumstances, compensatory damages, attorney’s fees, and punitive damages.157 An employer need not provide an accommodation that imposes an undue hardship on business operations.158 The ADA requires a case-by-case analysis of the employee’s and the employer’s circumstances, addressing such factors as the nature and cost of the accommodation, the employer’s resources, and the size and function of its workforce.159 The employer bears the burden of showing an undue hardship, once the employee identifies a reasonable accommodation.160 Courts have been reluctant to delineate a bright-line rule regarding what is an undue hardship, producing various outcomes.161 For example, one district court declined to grant a defendant summary judgment on a pharmacist’s request for one day of medical leave, suggesting that whether this was an undue hardship depended on such factors as whether the employer had a replacement pharmacist.162 The ADA also excludes some employers and employees from coverage. The statute applies to employers of 15 or more employees, and private clubs and religious employers are afforded certain exemptions.163 Additionally, going forward, the 2022 PWFA, discussed below, will allow pregnant workers to seek accommodations even without a disability.164 Because the PWFA allows workers to obtain the same relief they could seek under the ADA, workers may be less likely to invoke the ADA in the future. The Pregnant Workers Fairness Act On December 29, 2022, Congress passed the Pregnant Workers Fairness Act as part of the Consolidated Appropriations Act of 2023.165 The PWFA largely incorporates the accommodation requirements of the ADA, cross-referencing that statute and requiring employers to make things, it is feasible for the employer under the circumstances”); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995) (holding “it is enough for the plaintiff to suggest the existence of a plausible accommodation”). 156 U.S. EQUAL EMP. OPPORTUNITY COMM’N, FILING A LAWSUIT, https://www.eeoc.gov/filing-lawsuit (last visited June 7, 2023). 157 42 U.S.C. §§ 1981, 12205; Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529, 534 (1999); Bruce v. City of Gainesville, Ga., 177 F.3d 949, 951 (11th Cir. 1999); U.S. EQUAL EMP. OPPORTUNITY COMM’N, REMEDIES FOR EMPLOYMENT DISCRIMINATION, https://www.eeoc.gov/remedies-employment-discrimination (last visited June 7, 2023). 158 Terrell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998). 159 42 U.S.C. § 12111(10)(B); see CRS In Focus IF12366, Reasonable Accommodations for Employees with Disabilities, by Abigail A. Graber (2023). 160 LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 767 (W.D. Mich. 2001); Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, n.1 480 (7th Cir. 2017) (“The question of undue hardship is a second-tier inquiry under the statute; Inc., 872 F.3d 476, n.1 480 (7th Cir. 2017) (“The question of undue hardship is a second-tier inquiry under the statute;
that is, the hardship exception does not come into play absent a determination that a reasonable accommodation was that is, the hardship exception does not come into play absent a determination that a reasonable accommodation was
available.”). available.”).
~~181~~161 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Cleveland v. Fed. Express Corp., 83 F. App’x Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Cleveland v. Fed. Express Corp., 83 F. App’x
74, 78 (6th Cir. 2003)74, 78 (6th Cir. 2003). ~~See~~; see also ~~Dunn~~Dunn v. City of Malden, No. CV 14-14743-RWZ, 2016 WL 10988545, at *4 (D. Mass. Mar. 25, 2016) , No. CV 14-14743-RWZ, 2016 WL 10988545, at *4 (D. Mass. Mar. 25, 2016)
(stating that dispute of fact existed as to whether plaintiff’s request for one additional week of leave unduly burdened (stating that dispute of fact existed as to whether plaintiff’s request for one additional week of leave unduly burdened
employer). employer).
~~182~~162 LaPorta, 163 F. Supp. 2d at 768, 163 F. Supp. 2d at 768.
~~183~~; see also Jones v. Children’s Hosp. of Jones v. Children’s Hosp. of ~~Philadelphia~~Phila., No. CV 17-5637, 2019 WL 2640060, at *11 (E.D. Pa. June 27, 2019), No. CV 17-5637, 2019 WL 2640060, at *11 (E.D. Pa. June 27, 2019).
~~The court applied~~ (applying a state accommodations law requiring the “same framework” as the ADA a state accommodations law requiring the “same framework” as the ADA~~. Id.~~
~~184~~). 163 42 U.S.C. § 12111(5); 42 U.S.C. § 12111(5); see also supra no note ~~26.~~
~~185 Exec. Order No. 13152,~~ ~~Further Amendment to Executive Order11478, Equal Employment Opportunity in Federal~~
~~Government, 65 Fed. Reg. 26115 (May 2, 2000). A parent includes a biological parent, adoptive parent, foster parent,~~
stepparent, and others. Id.
~~186 Id.; Complainant v. Dep’t of Treasury, EEOC Appeal No. 0120143110, 2015 WL 1635909, at *1 (Mar. 10, 2015)~~
~~(noting agency’s internal process).~~
~~187 Janice R. LaChance, Director, Office of Personnel Management, Memorandum for Heads of Departments and~~
~~Independent Establishments 2 (January 19, 2001), https://www.nrc.gov/docs/ML0103/ML010310035.pdf (last visited~~
~~June 14, 2021).~~
~~188 The order also protects anyone actively seeking custody or adoption of a child. Exec. Order No. 13,152,~~ ~~Equal~~
~~Employment Opportunity in Federal Government,~~ ~~65 Fed. Reg. 26,115 (May 2, 2000).~~
~~189 Similar sentiments sometimes play a role in pregnancy discrimination. See, e.g., Int’l Union, United Auto.,~~
~~Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 197-98 (1991);~~
Pacourek, 858 F. Supp. at 1401; Jacobson, No. CV-98-564-ST, 1999 WL 373790, at *3 (reporting manager asking
~~about employee: “what will her commitment be to the company when she has this baby?”).~~
~~Congressional Research Service~~
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~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~State Pregnancy Protections~~
~~Many states have employment antidiscrimination laws that mirror Title VII, including~~
~~antidiscrimination measures applicable to pregnancy. In recent years, several states have passed~~
~~more protective statutes requiring accommodations for pregnant workers.190 State regulations,~~
~~too, may implement these measures.191 Some provisions take into account pregnant workers’~~
~~needs for rest breaks, seating, leave, or other contingencies.192 State legislators have typically~~
~~drafted these statutes as amendments to existing laws barring discrimination in employment based~~
~~on race, sex, religion, and other factors.193~~
~~Sometimes the protections are more closely modeled on an accommodation standard for disability~~
~~law. In Kentucky, for example, pregnancy legislation expanded a requirement of “[r]easonable~~
~~accommodation[s],” originally intended to benefit workers with disabilities, to include specific~~
~~job modifications “[f]or an employee’s own limitations related to her~~27. 164 Pregnant Workers Fairness Act, Pub. L. No. 117-328, Division II, § 102(4), 136 Stat. 4459 (2022). 165 Pub. L. No. 117-328, 136 Stat. 4459 (2022). Congressional Research Service 17 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers “reasonable accommodations” for pregnancy-related limitations.166 The law is effective June 27, 2023.167 Some lawmakers supporting the PWFA explained that “varying interpretations [of the PDA and ADA] ha[d] created an unworkable legal framework” and “a lack of clarity” for pregnancy-related accommodations.168 The PWFA mandates “reasonable accommodations” for pregnant workers and gives that term the same construction as in the ADA.169 In the PWFA’s legislative history, lawmakers suggested that reasonable accommodations might include “seating, water, and light duty.”170 Under the statute’s terms and in line with the ADA model, an employer need not provide an accommodation that imposes an undue hardship on business operations.171 The employer bears the burden of showing an undue hardship, once the employee identifies a reasonable accommodation.172 As discussed above, ADA case law has not produced bright-line rules in this “fact-specific, individualized inquiry.”173 As the EEOC regulations require in ADA cases,174 the PWFA obliges employers and employees to negotiate in good faith to determine appropriate accommodations.175 The law states that an employee need not accept an accommodation other than one “arrived at through the interactive process.”176 The PWFA also directly addresses mandatory leave, prohibiting employers from forcing employees to take leave if another accommodation would permit them to do their jobs.177 The PWFA differs from the ADA in notable ways. While the ADA requires that an employee be able to perform the essential functions of her job,178 the PWFA protects an employee who cannot perform an essential function if that limitation (1) will be eliminated in the “near future,” and (2) can be reasonably accommodated.179 This provision has come under criticism from some opponents who suggest that it requires employers to retain a worker who cannot perform fundamental job tasks.180 166 Id. § 103. 167 Id. § 109; U.S. EQUAL EMP. OPPORTUNITY COMM’N, WHAT YOU SHOULD KNOW ABOUT THE PREGNANT WORKERS FAIRNESS ACT, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairnessact (last visited June 8, 2023) [hereinafter PWF Act]. 168 H.R. REP. NO. 117-27, at 11 (2021) (Report from the Committee on Education and Labor). 169 Pub. L. No. 117-328 § 102(7). 170 H.R. REP. NO. 117-27, at 11. 171 Pub. L. No. 117-328, § 102(7) (stating “undue hardship” has the same construction as in the ADA); 42 U.S.C. § 12112(b)(5)(A); Terrell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998). 172 LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 767 (W.D. Mich. 2001); Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 480 n.1 (7th Cir. 2017). 173 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Cleveland v. Fed. Express Corp., 83 F. App’x 74, 78 (6th Cir. 2003); see also Dunn v. City of Malden, No. CV 14-14743-RWZ, 2016 WL 10988545, at *4 (D. Mass. Mar. 25, 2016). 174 29 C.F.R. § 1630.2(o)(3). 175 Pub. L. No. 117-328, §§ 102(7), 103(2). An employer who engages in a good faith interactive process gains protection from certain damages. Id. § 104(g); see also H.R. REP. NO. 117-27, at 34. 176 Pub. L. No. 117-328, § 103(2); see PWF Act, supra note 167. Minority views in the House report state that this provision “makes clear reasonable accommodations agreed upon through the interactive process, including an accommodation of leave, are not subject to a unilateral veto by the employee.” H.R. REP. NO. 117-27, at 57. 177 Pub. L. No. 117-328, § 103(4). 178 42 U.S.C. §§ 12111(8); 12112(b)(5)(A); 29 C.F.R. § 1630.2(m). 179 Pub. L. No. 117-328, § 102(6). 180 One witness in a committee hearing on a prior version of the bill suggested a worker might “report for work but not do the job.” H.R. REP. NO. 116-494, at 51 (2020); id. at 53 (quoting labor lawyer Ellen McLaughlin). Congressional Research Service 18 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers Moreover, under the PWFA, a pregnant worker’s impairment need not meet the definition of a “disability” under the ADA before she may claim protection.181 The PWFA requires accommodations for a “known limitation,” which is a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or pregnancy, childbirth, or
~~related medical conditions.”194 Other states have similar measures.195~~
~~Some statutes specify presumptively reasonable accommodations. Colorado law, for example,~~
~~states that these may include “more frequent restroom, food, and water breaks; acquisition or~~
~~modification of equipment or seating; limitations on lifting; temporary transfer to a less strenuous~~
~~or hazardous position if available, with return to the current position after pregnancy; job~~
~~restructuring; light duty, if available; assistance with manual labor; or modified work~~
~~schedules.”196~~
~~Proposals to Increase Protections~~
~~for Pregnant Workers~~
~~While the PDA bars employers from singling out pregnant workers for adverse action or~~
~~harassment, some have long called for additional measures. Proposals generally fall into two~~

~~190 For surveys of state statutes providing accommodations, see Nat’l P’ship for Women & Families,~~ ~~Reasonable~~
~~Accommodations for Pregnant Workers: State and Local Laws~~ ~~(May 2020), https://www.nationalpartnership.org/our-~~
~~work/resources/economic-justice/pregnancy-discrimination/reasonable-accommodations-for-pregnant-workers-state-~~
~~laws.pdf; Brianna L. Eaton, Note,~~ ~~Pregnancy Discrimination: Pregnant Women Need More Protection in the~~
~~Workplace, 64 S.D. L. REV. 244, 262 (2019); Reva B. Siegel,~~ ~~Pregnancy As A Normal Condition of Employment:~~
~~Comparative and Role-Based Accounts of Discrimination Cutler Lecture, 59 WM. & MARY L. REV. 969, 974 (2018).~~
~~191 See, e.g., HAW. CODE R. § 12-46-107 (implementing Hawaii’s Title VII-like antidiscrimination statute and requiring~~
~~pregnancy accommodations).~~
~~192 See, e.g., COLO. REV. STAT. §§ 24-34-402.3(4)(b); NEV. REV. STAT. §§ 613.4371. See also W. Va. Code §§ 5-11b-4~~
~~(authorizing regulations that “identify some reasonable accommodations addressing known limitations related to~~
~~pregnancy, childbirth, or related medical conditions”).~~
~~193 See, e.g., S.C. CODE ANN. § 1-13-80; CONN. GEN. STAT. §§ 46a-60.~~
~~194 KY. REV. STAT. ANN. § 344.030(6)(b).~~
~~195 W. VA. CODE ANN. § 5-11B-5 (5) (stating “‘Reasonable accommodation’ and ‘undue hardship’ have the meanings~~
~~given those terms in section 101 of the Americans with Disabilities Act of 1990”); N.D. CENT. CODE ANN. § 14-02.4-03~~
~~(requiring reasonable accommodations for worker “with a physical or mental disability, because that individual is~~
~~pregnant, or because of that individual’s religion”).~~
~~196 COLO. REV. STAT. ANN. § 24-34-402.3(4)(b); see also NEV. REV. STAT. § 613.4371; VA. CODE § 2.2-3909.~~
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~~general categories: (1) job modifications along the lines of the “reasonable accommodations”~~
~~provided for disability and (2) pregnancy leave entitlements.197~~
~~Some have criticized the PDA as insufficient because of its narrow focus on nondiscrimination.~~
~~Treating pregnant women the same as other workers, they argue, does not help pregnant workers~~
~~retain employment. An antidiscrimination regime mandating equal treatment, some contend,~~
~~ignores the fact that only women become pregnant, and so face “specific and predictable~~
~~obstacles to achieving security in the workplace.”198~~
~~Others have criticized the PDA because of the burdens it places on employers. At least as~~
~~currently interpreted by the Supreme Court in Young, the procedures for comparing pregnant~~
~~workers to those similarly situated in their working ability are difficult to apply and~~
~~unpredictable.199 Under this case law, the statute may not give employers clear guidelines to know~~
~~whether accommodations are required. Thus, employers may expend time and resources in~~
~~providing accommodations the law does not require.200~~
~~Still others may argue that providing more stringent workplace protections for pregnant workers~~
~~may have unintended consequences. Burdening employers—whether through the PDA or~~
~~enhanced pregnancy protections—may negatively affect women’s employment, some argue.~~
~~Employers may avoid hiring women of childbearing age because of the perceived costs.201 Even~~
~~if an employer is willing to make informal accommodations for pregnant workers, some point~~
~~out, they may avoid hiring where there is fear of a legal claim to accommodations.202 Employers’~~
~~concerns likely arise not only from the potential cost of accommodations, but from potentially~~
~~greater costs of litigation.203~~
~~Pregnancy Accommodations~~
~~Among models for expanding pregnancy protections beyond nondiscrimination, many point to~~
~~the ADA as an example of an accommodations regime.204 Some have proposed drawing on ADA~~
~~principles to expand current legislation and require accommodations for pregnancy.205 The ADA,~~

~~197 See Areheart, supra note 79 at 1128-30; Samuel Issacharoff & Elyse Rosenblum,~~ ~~Women and the Workplace:~~
~~Accommodating the Demands of Pregnancy, 94 COLUM. L. REV. 2154, 2197 (1994).~~
~~198 Issacharoff & Rosenblum, supra note 197 at 2158; see also Siegel, supra note 190 at 988.~~
~~199 See Durham v. Rural/Metro Corp., 955 F.3d 1279, 1288 (11th Cir. 2020) (Boggs, J., concurring).~~
~~200 Areheart, supra note 79 at 1128 n.7 (observing that, given the unpredictability, employers may voluntarily extend~~
~~accommodations “as a matter of being safe rather than sorry”).~~
~~201 Id. at 1159, 170-71 (acknowledging this difficulty and advocating parental accommodations that include fathers);~~
see also Thomas DeLeire, The Unintended Consequences of the Americans with Disabilities Act, 23 REGULATION, no.
~~1, at 22-23 (2000).~~
~~202 Areheart, supra note 79 at 1157-59 (noting employers are “the constituency that matters most when it comes to~~
~~work,” and that they view legal obligations negatively); see also DeLeire, supra note 201 at 22-23 (noting mandated~~
~~disability accommodations may dissuade hiring).~~
~~203 See DeLeire, supra note 201 at 23 (noting that passage of ADA may have led firms to reduce hiring of disabled~~
~~workers because of high litigation costs); EEOC Litigation Statistics, FY 1997 through FY 2019, EEOC,~~
~~https://www.eeoc.gov/statistics/eeoc-litigation-statistics-fy-1997-through-fy-2019 (last visited June 14, 2021)~~
~~(tabulating monetary relief obtained in EEOC’s ADA enforcement).~~
~~204 State-law pregnant workers protections often require accommodations, similar to those used for disability.~~ ~~See supra~~
~~notes 194-195. Scholars and advocates often point to the ADA as a starting point or a model for potential legislation.~~
See infra notes 205-208.
~~205 Areheart, supra note 79 at 1139 (citing support of the ADA as a model, but pointing out stigmatic harm of equating~~
~~pregnancy with discrimination); Pregnant Workers Fairness Act, S. 1512, 114th Cong. (2015); H.R. 2654, 114th Cong.~~
~~(2015); H.R. 2694, 116th Cong. (2020); H.R. 1065, 117th Cong. (2021); S. 1486, 117th Cong. (2021); Jeannette Cox,~~
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~~as mentioned above, allows workers with a disability to request a reasonable modification in~~
~~workplace conditions or rules, provided they can carry out the essential duties of the position.206~~
~~The employer and employee work together to identify an appropriate accommodation, and the~~
~~employer need not provide one that poses an undue hardship.207 Job modification, in this model,~~
~~would be available to all pregnant women, even those who do not qualify as having a disability~~
~~under the ADA.208~~
~~Another potential accommodation analogue is Title VII’s religious accommodation provision.~~
~~Under Title VII’s requirements, employers must make changes to workplace rules to~~
~~accommodate employees’ religious practices, unless this poses an “undue hardship on the conduct~~
~~of the employer’s business.”209 In practice, the provision has enabled employees to alter schedules~~
~~to avoid Sabbath work, wear religious clothing on the job, or seek exemptions from grooming~~
~~rules—although whether a request is granted depends on the circumstances, and the requests are~~
~~often denied.210 An employer could generally deny a request for scheduling a Sabbath day off, for~~
~~example, if the change would contravene a coworker’s productivity or seniority-based scheduling~~
~~rights.211 Courts have held that an employer suffers undue hardship when required to bear “more~~
~~than a de minimis cost” or imposition upon coworkers for religious accommodations.212~~
~~Models for Pregnancy-Related Leave~~
~~Disability and religious accommodations are not the only models for constructing possible~~
~~pregnancy protections. Some commenters have drawn parallels with state and federal measures~~
~~providing job-protected leave from the workplace to support endeavors like voting, jury duty,~~
~~court appearances, and military service.213 These protections, some contend, may provide~~
~~paradigms for protecting employment while enabling pregnancy and child care.214~~
~~Many federal and state laws offer analogous protection for workers’ participation in various~~
~~socially beneficial undertakings. For example, many give employees a right to leave for~~
~~participation in the legal system. When called for jury service, workers often have the right to~~

Pregnancy As “Disability” and the Amended Americans with Disabilities Act, 53 B.C. L. REV. 443, 449 (2012).
~~206 See supra notes 170-178 and accompanying text.~~
~~207 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9.~~
~~208 Cox, supra note 205 at 449-51.~~
~~209 42 U.S.C. § 2000e(j).~~
~~210 EEOC v. Reads, Inc., 759 F. Supp. 1150, 1161 (E.D. Pa. 1991); Hudson v. W. Airlines, Inc., 851 F.2d 261, 266 (9th~~
~~Cir. 1988); Gadson v. Alabama Dep’t of Corr., No. 2:13-CV-105-VEH, 2013 WL 5230241, at *2 (N.D. Ala. Sept. 17,~~
~~2013). As these cases illustrate, whether an accommodation is an undue burden takes into account collective bargaining~~
~~agreements, other employees’ seniority rights, cost, and other considerations.~~
~~211 Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 146 (5th Cir. 1982).~~
~~212 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).~~
~~213 Bryce Covert, The American Workplace Still Won’t Accommodate Pregnant Workers, NATION (Aug. 12, 2019),~~
~~https://www.thenation.com/article/pregnant-workers-discrimination-workplace-low-wage (last visited June 14, 2021)~~
~~(quoting Gillian Thomas of the American Civil Liberties Union as asking employers “If this were not a pregnancy but~~
~~if it were jury duty, what would you do?”).~~
214 Robin R. Runge, Redefining Leave from Work, 19 GEO. J. ON POVERTY L. & POL’Y 445, 462 (2012); see also
~~CATHERINE R. ALBISTON, INSTITUTIONAL INEQUALITY AND THE MOBILIZATION OF THE FAMILY AND MEDICAL LEAVE~~
~~ACT, 73, 135 (2010) (noting that leave-oriented statutes like the FMLA differ from Title VII and the ADA because they~~
~~do not focus on workers’ identities and are “more like legislation that creates job-protected leaves for jury duty or~~
~~military service than anti-discrimination legislation”).~~
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~~time off, sometimes with pay.215 Federal law bars employers from discharging employees for~~
~~federal jury service.216 Federal employees receive pay for jury service, and federal regulations for~~
~~unemployment benefits exempt those serving as jurors from requirements that they search for~~
~~work.217~~
~~Almost all states also bar an employer from firing an employee because of jury service, and many~~
~~go further—requiring paid leave for time served as a juror.218 Other state laws restrict the working~~
~~hours an employer can require during jury service or bar employers from requiring jurors use sick~~
~~leave or vacation to cover their service.219 Most states also have rules that facilitate workers’ court~~
~~participation more broadly, requiring leave or at least nondiscrimination on account of an~~
~~employee’s taking time off to appear as a witness.220~~
~~Perhaps the most comprehensive of these employment accommodation schemes is federal~~
~~legislation protecting military reservists, the Uniformed Services Employment and~~
~~Reemployment Rights Act (USERRA). The statute provides antidiscrimination, antiretaliation,~~
~~and reemployment rights designed to permit military reserve members to complete periodic~~
~~training and, when needed, extended deployment.221 One observer characterized the statute as~~
~~“possibly the most employee-friendly labor/employment law in effect today.”222 The law’s stated~~
~~purpose is to “eliminat[e] or minimiz[e] the disadvantages to civilian careers and employment~~
~~which can result from [military] service.”223~~
~~Employers cannot fire, refuse to hire, or refuse to promote a servicemember because of his or her~~
~~past, present, or future service obligations. In applying the statute’s antidiscrimination provisions,~~
~~courts turn to analyses of animus and causation used in Title VII and other, similar~~
~~antidiscrimination statutes; indeed, the Supreme Court has assessed the statute as “very similar to~~
~~Title VII.”224 USERRA goes further than antidiscrimination, however. Its reemployment~~
~~provisions ensure that servicemembers can return to work after training or deployment. The~~

~~215 See, e.g., ALA. CODE § 12-16-8; CAL. LABOR CODE § 230; 705 ILL. COMP. STAT. ANN. 305/4; N.Y. JUD. LAW § 519.~~
~~216 28 U.S.C. § 1875.~~
~~217 Policy Data, Oversight: Pay & Leave, Office of Personnel Management, https://www.opm.gov/policy-data-~~
~~oversight/pay-leave/leave-administration/fact-sheets/court-leave/ (last visited June 14, 2021); 20 C.F.R. §~~
~~615.8(g)(3)(i)(A)).~~
~~218 Molly Weston Williamson, The Meaning of Leave: Understanding Workplace Leave Rights, 22 N.Y.U. J. LEGIS. &~~
~~PUB. POL’Y 197, 201 (2020) (“Every state except Montana provides some type of specific workplace protection for~~
~~those serving jury duty.”); Runge, supra note 214 at 462 (2012); Marianne DelPo Kulow,~~ ~~Legislating A Family-~~
~~Friendly Workplace: Should It Be Done in the United States?, 7 NW. J. L. & SOC. POL’Y 88, 95 (2012). As one analysis~~
~~concluded, such legislation “reflect[s] the value society places on participating in the justice system.” Runge,~~ ~~supra~~
~~note 214 at 462.~~
~~219 Williamson, supra note 218 at 209. Some observers describe paid jury duty as a “civic responsibility” employers~~
~~should shoulder. Jamie Philpotts,~~ ~~Los Angeles-Based Latham & Watkins Was Recently Reprimanded by A Local~~
~~Federal Judge for Not Allowing A Secretary Paid Leave for Jury Duty, OF COUNSEL, September 21, 1992, at 15~~
~~(quoting district judge).~~
~~220 Williamson, supra note 218 at 201 (stating 33 states mandate leave rights for witnesses, crime victims, or their~~
~~families); supra note 214 at 462; Matt Brown, Updates in Employment Law Leave in South Carolina, S.C. LAW., at 44,~~
~~47 (January 2018). For a list of state laws enabling victims of domestic violence to seek time off for legal matters, see~~
~~LEGAL MOMENTUM, STATE LAW GUIDE: EMPLOYMENT RIGHTS FOR VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE, http://~~
~~www.legalmomentum.org/assets/pdfs/employment-rights.pdf.~~
~~221 38 U.S.C. § 4311(a).~~
~~222 Kenan Torrans, A Primer on the Uniformed Services Employment and Reemployment Rights Act, 47 MD. B.J., at 12~~
~~(March/April 2014).~~
~~223 38 U.S.C. § 4301(a)(1).~~
~~224 Staub v. Proctor Hosp., 562 U.S. 411, 417 (2011).~~
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~~statute allows for~~related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability.”182 Aside from significant congressional guidance through the ADA Amendments Act of 2008, there are regulations and judicial decisions interpreting the ADA’s standard for disability.183 The PWFA standard for a “known limitation” is new, however—how it will play out in practice remains to be seen.184 Like the ADA and Title VII, the PWFA applies to employers of 15 or more workers.185 It protects job applicants, federal workers, and state workers.186 It covers legislative employees, too, through a cross-reference to the Congressional Accountability Act of 1995.187 Through cross-reference, it also incorporates the limited applicability of Title VII to religious employers.188 The PWFA additionally parallels Title VII for its remedies and enforcement provisions. Remedies could include compensatory damages, punitive damages, and attorneys’ fees.189 Like Title VII and many other antidiscrimination measures, the PWFA bars retaliation against a worker who has requested an accommodation.190 The law grants the EEOC and the Attorney General enforcement authority as under Title VII and charges the EEOC with issuing regulations, directing it to include examples of reasonable accommodations.191 All in all, the PWFA significantly expands employers’ obligations to provide needed job modifications to pregnant women. Unlike the ADA, it requires provisional job changes to workers’ essential duties, at least in some cases, provided those changes are temporary. It also 181 Pub. L. No. 117-328, § 102(4). 182 Id. 183 ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553; 29 C.F.R. § 1630.2(j)(3); Sugg v. City of Sunrise, No. 20-13884, 2022 WL 4296992, at *8 (11th Cir. Sept. 19, 2022) (acknowledging precedent). 184 See H.R. REP. NO. 116-494, at 53 (quoting labor lawyer Ellen McLaughlin indicating departure from established ADA standard). 185 Pub. L. No. 117-328, § 102(2), (3). The statute cross-references Title VII’s coverage provisions. Id.; 42 U.S.C. §§ 2000e(b), (f), (n), 2000e-16(a), 2000e-16c(a). 186 Pub. L. No. 117-328, § 102 (2), (3). The PWFA waives sovereign immunity for state employers. Id. § 106. The Supreme Court has limited the ADA’s similar waiver of sovereign immunity, holding that a private individual may not sue a state or state agency for damages for employment discrimination. Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). The Court held that ADA disability protections went beyond Congress’s Fourteenth Amendment authority because there was no adequate record showing a pattern of unconstitutional state action discriminating against people with disabilities in employment. Id. at 373. Whether similar challenges to the PWFA may arise remains to be seen. 187 Pub. L. No. 117-328, § 102(3)(B) (citing 2 U.S.C. § 1301); see PWF Act, supra note 167 (“‘Covered employers’ include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.”). 188 Pub. L. No. 117-328, § 107(b). This provision exempts “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” 42 U.S.C. § 2000e-1. 189 Pub. L. No. 117-328, § 104; see also H.R. REP. NO. 117-27, at 26 (“[T]he PWFA is written to mirror the enforcement powers, procedures, and remedies established under the Civil Rights Act of 1964.”). The law incorporates the damages caps of 42 U.S.C. § 1981a. Pub. L. No. 117-328, § 104 (a)(3). 190 Pub. L. No. 117-328, § 104(f). 191 Id. §§ 104 (a)(1), (e)(1), 105(a). The statute calls for rulemaking within one year of enactment. Id. § 105(a). The Board of Directors of the Office of Congressional Workplace Rights must promulgate regulations and administer the act for legislative employees. Id. § 105(b). Congressional Research Service 19 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers decouples pregnancy-related accommodation claims from the equal-treatment regime established by the PDA and Title VII. That said, the PWFA applies only to accommodation claims. For claims that an employer discriminated against pregnant workers in other ways, workers must continue to rely on Title VII, state laws, or other applicable laws.192 Other Federal Protections for Pregnant Workers While the PDA, ADA, and PWFA address certain forms of discrimination based on pregnancy and require accommodations in some circumstances, at least three other federal laws also provide pregnancy-related protections. These protections generally involve leave or break time. The Family and Medical Leave Act and Unpaid, Job-Protected Leave The Family and Medical Leave Act (FMLA) requires certain employers to grant unpaid leave for illness and some family responsibilities. Eligible workers may invoke the FMLA to, for example, obtain time off work for pregnancy-related issues, including prenatal care.193 Most employees may request up to 12 weeks of job-protected leave. Not all workers are eligible for FMLA leave. Among other requirements, an employee must accrue at least a year of service before taking FMLA leave, and employers of fewer than 50 employees need not offer FMLA leave.194 Private- and public-sector employees are covered, but members of the armed forces are not.195 The Department of Labor enforces the FMLA.196 The Fair Labor Standards Act and Lactation The Fair Labor Standards Act of 1938 (FLSA) is probably best known for governing worker pay and hours, but it also requires lactation breaks for nursing mothers.197 The FLSA affords qualifying employees the right to break time and a private place (not a bathroom) to express breast milk for one year after a child’s birth.198 Employers need not pay workers for break time designated for pumping, but employees who pump during other break times are entitled to compensation on the same terms as employees who use that break time for other purposes.199 Separately, existing federal policy calls for all executive branch employers to provide nursing 192 See PWF Act, supra note 167. 193 29 U.S.C. § 2601; Walter E. Zink II & Jill Gradwohl Schroeder, Evaluating the Interplay Among FMLA, ADA and Workers’ Comp Statutes Isn’t Child’s Play, 66 DEF. COUNS. J. 79, 84 (1999). For an overview of the FMLA, see CRS Report R44274, The Family and Medical Leave Act: An Overview of Title I, by Sarah A. Donovan (2015). 194 29 U.S.C. § 2611(2). 195 Id. §§ 203(e)(2), 2611(4). 196 Id. § 2617(b); see also CRS Report R44274, The Family and Medical Leave Act: An Overview of Title I, by Sarah A. Donovan (2015). 197 Fair Labor Standards Act, 29 U.S.C. §§ 207(r), 218c (as amended by the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, Pub. L. No. 117-328, 136 Stat. 4459 (2022)); U.S. DEP’T OF LABOR, WAGES AND THE FAIR LABOR STANDARDS ACT, https://www.dol.gov/agencies/whd/flsa (last visited June 8, 2023); CRS Report R42713, The Fair Labor Standards Act (FLSA): An Overview, by Sarah A. Donovan (2023). 198 29 U.S.C. §§ 207(r), 218c; PUMP for Nursing Mothers Act, Pub. L. No. 117-328, Div. KK, § 102(a), 136 Stat. 4459 (2022). 199 29 U.S.C. § 207(r)(2), (3); U.S. DEP’T OF LABOR, WAGE & HOUR DIV., FACT SHEET #73: FLSA PROTECTIONS FOR EMPLOYEES TO PUMP BREAST MILK AT WORK (Jan. 2023), https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers [hereinafter “FACT SHEET #73”] (last visited June 8, 2023). Congressional Research Service 20 link to page 23 link to page 23 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers accommodations.200 Before December 2022, however, those provisions applied only to employees eligible for overtime under the FLSA’s Section 7.201 In December 2022 Congress expanded FLSA protections for nursing mothers, extending them to previously ineligible workers in the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.202 Effective immediately, the PUMP for Nursing Mothers Act (passed as part of the Consolidated Appropriations Act of 2023) expands protections to most FLSA-eligible employees.203 Even as amended, the law does not cover all workers. In particular, employers of fewer than 50 workers need not comply if the requirement would impose an undue hardship.204 The PUMP for Nursing Mothers Act also expands available remedies. Potential legal and equitable remedies include hiring, reinstatement, promotion, lost wages, and other damages, including punitive damages.205 These penalties are available for violations after April 28, 2023.206 The Department of Labor enforces the FLSA.207 Executive Order 13152 and Discrimination Based on Parental Status It addition to the statutory protections described above, federal executive-branch employees—men and women—enjoy protection from intentional discrimination based on parental status. Executive Order 13152 bars “discrimination in employment because of . . . status as a parent.”208 The Office of Personnel Management (OPM) administers the order, and agencies generally internally investigate and adjudicate complaints.209 The order does not require accommodations for parents or create pathways to enforcement outside of the agency, such as recourse to EEOC 200 JOHN BERRY, OFF. OF PERSONNEL MGMT., MEMORANDUM TO HEADS OF EXEC. DEP’TS & AGENCIES, NURSING MOTHERS IN FEDERAL EMPLOYMENT (Dec. 22, 2010), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/NMothersFederalEmplymnt.pdf (concluding that, while the 2010 FLSA provisions applied only to overtime-eligible employees, federal agencies should provide reasonable break time for civilian, executive employees). 201 Id. 202 Enacted as Division KK of the Consolidated Appropriations Act of 2023, the PUMP for Nursing Mothers Act, Pub. L. No. 117-328, Div. KK, 136 Stat. 4459 (2022) moved nursing mother protections from Section 7 of the FLSA and reformulated them as a new Section 18D. 203 By separating nursing protections from FLSA’s Section 7, the new law extended protections to workers not covered under Section 7. These protections now reach FLSA-eligible employees generally, with some enumerated exceptions. Pub. L. No. 117-328, § 102(a); see also H.R. REP. NO. 117-102, at 11–12, 21 (2021) (Report from the Committee on Education and Labor) (explaining the effects of moving the provisions in discussing a predecessor bill); U.S. DEP’T OF LABOR, FLSA PROTECTIONS TO PUMP AT WORK, https://www.dol.gov/agencies/whd/pump-at-work (last visited June 8, 2023); FACT SHEET #73, supra note 199 (noting the PUMP Act reaches “nearly all FLSA-covered employees”). 204 Pub. L. No. 117-328, § 102(a). The PUMP for Nursing Mothers Act borrows from the ADA’s definition of undue hardship, asking courts to consider whether allowing pumping breaks is “causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Id. 205 Id. § 102(b). 206 Id. § 103; FACT SHEET #73, supra note 199. 207 U.S. DEP’T OF LABOR, FLSA PROTECTIONS TO PUMP AT WORK https://www.dol.gov/agencies/whd/pump-at-work (last visited June 8, 2023); U.S. DEP’T OF LABOR, COMPLAINTS CAN BE FILED ONLINE, HOW TO FILE A COMPLAINT, https://www.dol.gov/agencies/whd/contact/complaints (last visited June 8, 2023). 208 Exec. Order No. 13,152, Further Amendment to Executive Order11,478, Equal Employment Opportunity in Federal Government, 65 Fed. Reg. 26115 (May 2, 2000). A parent includes a biological parent, adoptive parent, foster parent, step-parent, and others. Id. 209 Id.; Complainant v. Dep’t of Treasury, EEOC Appeal No. 0120143110, 2015 WL 1635909, at *1 (Mar. 10, 2015) (reflecting agency’s internal process). Congressional Research Service 21 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers adjudication.210 While the order does not protect pregnancy per se, it does bar discrimination on account of soon-to-be motherhood.211 An example of discrimination, OPM has explained, includes stereotypes that parents of young children should not work or lack commitment to work.212 State Pregnancy Protections Many states have employment discrimination laws that mirror Title VII, including antidiscrimination measures applicable to pregnancy. In recent years, several states have expanded these laws to include accommodations for pregnant workers.213 Unlike the PWFA—a separate law providing for pregnancy accommodations—many state laws take the form of amendments to existing laws barring discrimination in employment based on race, sex, religion, and other factors.214 Sometimes state pregnancy accommodation protections build on those states’ disability laws. In Kentucky, for example, pregnancy legislation expanded a requirement of “[r]easonable accommodation[s],” originally intended to benefit workers with disabilities, to include specific job modifications “[f]or an employee’s own limitations related to her pregnancy, childbirth, or related medical conditions.”215 Other states have similar measures.216 Some provisions expressly address pregnant workers’ needs for breaks, seating, leave, or other contingencies.217 Colorado law, for example, states that these may include “more frequent restroom, food, and water breaks; acquisition or modification of equipment or seating; limitations on lifting; temporary transfer to a less strenuous or hazardous position if available, with return to the current position after pregnancy; job restructuring; light duty, if available; assistance with 210 JANICE R. LACHANCE, OFF. OF PERSONNEL MNGMT., MEMORANDUM FOR HEADS OF DEP’TS & INDEPENDENT ESTABLISHMENTS, GUIDANCE ON ADDRESSING DISCRIMINATION BASED ON STATUS AS A PARENT IN FEDERAL CIVILIAN EMPLOYMENT 2 (Jan. 19, 2001), https://www.nrc.gov/docs/ML0103/ML010310035.pdf. 211 The order also protects anyone actively seeking custody or adoption of a child. Exec. Order No. 13,152, Further Amendment to Executive Order 11,478, Equal Employment Opportunity in Federal Government, 65 Fed. Reg. 26115 (May 2, 2000). 212 Similar sentiments sometimes play a role in pregnancy discrimination. See, e.g., Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–98 (1991); Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1401 (N.D. Ill. 1994); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 WL 373790, at *3 (D. Or. Apr. 9, 1999) (reporting manager asking about employee: “what will her commitment be to the company when she has this baby?”). 213 Brianna L. Eaton, Note, Pregnancy Discrimination: Pregnant Women Need More Protection in the Workplace, 64 S.D. L. REV. 244, 262 (2019); Reva B. Siegel, Pregnancy As A Normal Condition of Employment: Comparative and Role-Based Accounts of Discrimination Cutler Lecture, 59 WM. & MARY L. REV. 969, 974 (2018). See, e.g., HAW. CODE R. § 12-46-107 (1990) (implementing Hawaii’s Title VII-like antidiscrimination statute and requiring pregnancy accommodations). State regulations, too, may require accommodations. 214 See, e.g., S.C. CODE ANN. § 1-13-80 (2018); CONN. GEN. STAT. ANN. §§ 46a-60 (2022). 215 KY. REV. STAT. ANN. § 344.030(6)(b) (2019). 216 W. VA. CODE ANN. § 5-11B-5 (5) (2014) (stating “‘Reasonable accommodation’ and ‘undue hardship’ have the meanings given those terms in section 101 of the Americans with Disabilities Act of 1990”); DEL. CODE ANN. tit. 19, §§ 710-11 (requiring “reasonable accommodations to the known limitations related” to “pregnancy, childbirth, or a related condition, including, but not limited to, lactation”). 217 See, e.g., COLO. REV. STAT. ANN. § 24-34-402.3(4)(b) (2016); NEV. REV. STAT. ANN. § 613.4371 (2017); see also W. VA. CODE § 5-11b-4 (2014) (authorizing regulations that “identify some reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions”). Congressional Research Service 22 link to page 25 link to page 12 link to page 26 link to page 26 link to page 25 link to page 26 link to page 26 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers manual labor; or modified work schedules.”218 State laws also often protect nursing mothers.219 For some workers, state laws may be more protective than federal laws. Pregnancy Protections in Context and Potential Reform While the PDA has for decades barred employers from singling out pregnant workers for adverse action or harassment, critics long called for enhanced protections. Treating pregnant women the same as other workers, accommodations proponents have argued, does not help pregnant workers retain employment.220 Proposals have generally fallen into two categories: (1) requiring job modifications akin to the “reasonable accommodations” provided for disability, and (2) pregnancy-specific leave entitlements.221 The PWFA, which parallels the ADA, addressed the first category by focusing on workers’ entitlement to pregnancy accommodations.222 With respect to the second category, advocates for expanded leave and reemployment rights contend that state and federal measures requiring workplace leave to support socially beneficial activities like voting, jury duty, court appearances, and military service may provide paradigms for protecting employment while enabling pregnancy and child care.223 An overview of these measures can help contextualize existing pregnancy protections within employment antidiscrimination law. Leave entitlements differ from accommodations, as they need not require a showing of disability, known limitation, or reasonableness (as under the ADA or PWFA). As one observer indicated in evaluating FMLA leave entitlements, “treating family and medical leave like leave for jury duty or military service . . . explicitly recognizes the value of caring for others, rather than focusing only on questions of identity and equal treatment.”224 There are a number of statutes that could serve as models for pregnancy-specific leave entitlements. Perhaps the most comprehensive legal 218 COLO. REV. STAT. ANN. § 24-34-402.3(4)(b) (2016); see also NEV. REV. STAT. ANN. § 613.4371 (2017); VA. CODE ANN. § 2.2-3909 (2021). 219 NATIONAL CONFERENCE OF STATE LEGISLATURES, BREASTFEEDING STATE LAWS (2021), https://www.ncsl.org/health/breastfeeding-state-laws (last visited June 8, 2023). These include laws requiring pump breaks for employees, see, for example, ARK. CODE ANN. § 11-5-116 (2009); CAL. LAB. CODE § 1030-1033 (2001); D.C. CODE ANN. § 2-1402.82(d)(1) (2007), as well as laws permitting breastfeeding in public. See, e.g., FLA. STAT. ANN. § 383.015 (1993); CAL. CIVIL CODE § 43.3 (1997); 740 ILL. COMP. STAT. ANN. § 137/1 et. seq. (2004). 220 Samuel Issacharoff & Elyse Rosenblum, Women and the Workplace: Accommodating the Demands of Pregnancy, 94 COLUM. L. REV. 2154, 2158 (1994); see also Siegel, supra note 213, at 988. 221 See Areheart, supra note 79, at 1128–30; Jeannette Cox, Pregnancy As “Disability” and the Amended Americans with Disabilities Act, 53 B.C. L. REV. 443, 449 (2012); Issacharoff & Rosenblum, supra note 220 at 2197. 222 Scholars and advocates had often pointed to the ADA as a starting point or a model for potential legislation. See supra note 221. State-law pregnant workers protections often require accommodations, similar to those used for disability. See supra notes 215-218. Another potential accommodation analogue is Title VII’s religious accommodation provision. Under Title VII’s requirements, employers must make changes to workplace rules to accommodate employees’ religious practices, unless this poses an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). 223 Bryce Covert, The American Workplace Still Won’t Accommodate Pregnant Workers, NATION (Aug. 12, 2019), https://www.thenation.com/article/archive/pregnant-workers-discrimination-workplace-low-wage/ (quoting Gillian Thomas of the American Civil Liberties Union asking employers, “If this were not a pregnancy but if it were jury duty, what would you do?”); Robin R. Runge, Redefining Leave from Work, 19 GEO. J. ON POVERTY L. & POL’Y 445, 462 (2012); see also CATHERINE R. ALBISTON, INSTITUTIONAL INEQUALITY AND THE MOBILIZATION OF THE FAMILY AND MEDICAL LEAVE ACT: RIGHTS ON LEAVE 73, 135 (2010) (stating that leave-oriented statutes like the FMLA differ from Title VII and the ADA because they do not focus on workers’ identities and are “more like legislation that creates job-protected leaves for jury duty or military service than anti-discrimination legislation”). 224 ALBISTON, supra note 223, at 135. Congressional Research Service 23 link to page 27 link to page 27 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers regime protecting employment leave is the Uniformed Services Employment and Reemployment Rights Act (USERRA). Through antidiscrimination, antiretaliation, and reemployment provisions, the statute helps military reserve members to complete periodic training and, when needed, extended deployments.225 One observer characterized USERRA as “possibly the most employee-friendly labor/employment law in effect today.”226 The law’s stated purpose is to “eliminat[e] or minimiz[e] the disadvantages to civilian careers and employment which can result from [military] service.”227 Employers cannot fire, refuse to hire, or refuse to promote a servicemember because of his or her past, present, or future service obligations. Courts borrow from Title VII and similar laws when analyzing causation under USERRA; the Supreme Court has assessed the statute as “very similar to Title VII.”228 USERRA does more than bar adverse employment actions because of service obligations. The statute protects workers’ jobs by requiring that they receive leave without pay during military service. Upon return, a servicemember leave without pay during military service. Upon return, a servicemember
receives the same status, benefits, and pay at the rate previously earned.receives the same status, benefits, and pay at the rate previously earned.~~225 In addition, the~~
229 The servicemember is servicemember is also entitled to the same promotion opportunities entitled to the same promotion opportunities or and pay increases available to those pay increases available to those
who did not take leave for military duties and accrues seniority during deployment.who did not take leave for military duties and accrues seniority during deployment.~~226~~230 Employers Employers
can escape can escape ~~this obligation~~these obligations, however, if their “circumstances have so changed as to make such , however, if their “circumstances have so changed as to make such
reemployment impossible or unreasonable.”reemployment impossible or unreasonable.”~~227~~
~~In addition to USERRA~~231 The FMLA also has protections for military service, allowing a servicemember’s next of kin to take 26 weeks of leave to care for the servicemember.232 On top of federal law’s substantial protections, many states provide other benefits to ’s substantial protections, many states provide other benefits to
accommodate military service. These benefits include leave rights for military spouses in accommodate military service. These benefits include leave rights for military spouses in
connection with a deployment.connection with a deployment.~~228~~233
Aside from military Aside from military ~~and court~~ service, service, ~~state legislatures have mandated leave for many other tasks~~
~~they seek to enable. Bone marrow or organ donors often receive time off for this endeavor.229~~
~~Some states provide leave for those who volunteer as emergency or disaster service workers.230~~
~~Voting, too, is a common source of leave entitlement, mandated in at least 30 states.231 These~~
~~types of leave requirements may generally call for shorter leave entitlements than would~~
~~pregnancy—often a matter of days or even hours rather than weeks or months. They may serve as~~
~~useful points of comparison, however, because they (unlike many disability accommodations)~~
~~anticipate a temporary, rather than permanent alteration of workplace obligations.~~
~~Recent Legislative Proposals: The Pregnant Workers Fairness Act~~
~~and the Equality Act~~
~~Against this background, legislators have proposed various legislative reform efforts for~~
~~pregnancy accommodations.232 Most notably, the House of Representatives passed the Pregnant~~
~~Workers Fairness Act (PWFA) in spring 2021.233 The proposal largely incorporates the~~
~~accommodation requirements of the ADA, calling for work adjustments unless they result in~~
~~“undue hardship” to an employer.234 It aims to “promote women’s health and economic security~~
~~by ensuring reasonable workplace accommodations for workers whose ability to perform the~~
~~functions of a job are limited by pregnancy, childbirth, or a related medical condition.”235 Like the~~
~~ADA, it obliges employers to engage in an interactive process to determine appropriate~~
~~accommodations.236~~

~~225 38 U.S.C. § 4313(a). See also Torrans, supra note 222 at 12, 15.~~
~~226 38 U.S.C. § 4313. See also Williamson, supra note 218~~ ~~at 216~~legislatures have mandated leave for other endeavors. Federal law and many state laws protect employees who need leave for jury service. Federal law bars employers from discharging employees for federal jury service.234 Federal employees receive pay for jury service, and federal regulations for unemployment benefits exempt those serving as jurors from requirements that they search for work.235 Almost all states also bar employers from firing employees because of jury service, and many go further, requiring paid leave for time served as a 225 38 U.S.C. § 4311(a). 226 Kenan Torrans, A Primer on the Uniformed Services Employment and Reemployment Rights Act, 47 MD. B.J. 13 (March 2014). 227 38 U.S.C. § 4301(a)(1). 228 Staub v. Proctor Hosp., 562 U.S. 411, 417 (2011). 229 38 U.S.C. § 4313(a); see also Torrans, supra note 226, at 15. 230 38 U.S.C. § 4313; see also Molly Weston Williamson, The Meaning of Leave: Understanding Workplace Leave Rights, 22 N.Y.U. J. LEGIS. & PUB. POL’Y 197, 216 (2020) (noting this accrual of seniority during leave is (noting this accrual of seniority during leave is
unusual in employment law, “used essentially exclusively in the context of military service”). unusual in employment law, “used essentially exclusively in the context of military service”).
~~227~~231 38 U.S.C. § 4312(d)(1)(A). 38 U.S.C. § 4312(d)(1)(A).
~~228 Williamson, supra note 218 at 202.~~
~~229 Kulow, supra note 218 at 95.~~
~~230 Id.~~
~~231 Id. at 95 n.55.~~
~~232 H.R. 2417, 115th Cong. (2017); S. 1101, 115th Cong. (2017); Nancy Gunzenhauser Popper,~~ ~~House Passes Pregnant~~
~~Workers Fairness Act, NAT. L. REV. (Oct. 7, 2020), https://www.natlawreview.com/article/house-passes-pregnant-~~
~~workers-fairness-act (last visited June 14, 2021).~~
~~233 Pregnant Workers Fairness Act, H.R. 1065, 117th Cong. (2021); see also S. 1486, 117th Cong. (2021).~~
~~234 H.R. 1065, 116th Cong. §§ 2(1), 5(7).~~
235 Id.
~~236 Id. § 5(7).~~
~~Congressional Research Service~~
24

~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~The PWFA, however, differs from the ADA in several notable ways. While the ADA requires that~~
~~an employee be able to perform the essential functions of her job, the PWFA would protect an~~
~~employee who cannot perform an essential function if that inability (1) is temporary, (2) will be~~
~~eliminated in the “near future,” and (3) can be reasonably accommodated.237 This provision has~~
~~come under criticism, with opponents pointing out that it goes much further than the ADA in~~
~~requiring employers to retain a worker who cannot complete some job functions.238 The PWFA~~
~~also directly addresses the potential concern of mandatory leave, requiring that employers not~~
~~force a qualified employee to take leave if another accommodation would suffice.239~~
~~In addition, a pregnant worker’s impairment under the PWFA need not meet the definition of a~~
~~“disability” under the ADA before she may claim protection.240 While there is a substantial body~~
~~of precedent defining the ADA’s standard for disability, how this new standard would play out is~~
~~hard to predict.241~~
~~The PWFA would apply to employers of more than 15 workers and would be enforced by the~~
~~EEOC, which would issue regulations providing examples of reasonable accommodations.242 The~~
~~bill would waive sovereign immunity for state employers.243 Remedies include compensatory~~
~~damages, punitive damages, and attorneys’ fees.244 Like many other antidiscrimination measures,~~
~~the PWFA would bar retaliation against a worker who has requested an accommodation.245 Unlike~~
~~Title VII, the bill would not include an exemption for religious employers.246~~
~~All in all, the proposal would significantly expand job modifications for pregnant women. Unlike~~
~~the ADA, it accounts for pregnancy-related impairments’ temporary nature, requiring workers be~~
~~permitted provisional job changes to essential duties. And it differs from the PDA and Title VII’s~~
~~antidiscrimination mandate, separating pregnancy from the equal treatment regime applicable to~~
~~other forms of sex discrimination.~~
~~Besides the PWFA, the Equality Act passed by the House in early 2021 also includes provisions~~
~~addressing pregnancy.247 The bill includes provisions defining pregnancy discrimination as sex~~
~~discrimination, and further addresses discrimination against breastfeeding women.248 It would~~
~~broaden pregnancy antidiscrimination law to include facilities and programs outside of Title VII’s~~
~~jurisdiction, employment.249~~

~~237 Id. § (5)(6).~~
~~238 As one witness in committee hearing on a prior version of the bill put it, a worker might “report for work but not do~~
~~the job.” H. REP. NO. 116-494 at 51 (2020) (report, together with minority views from the Committee on Education and~~
~~Labor to accompany 116 H.R. 2694,116th Cong.) (quoting labor lawyer Ellen McLaughlin).~~
~~239 H.R. 1065, 116th Cong. § 2(4).~~
~~240 Id. § 5(5).~~
~~241 H. REP. NO. 116-494 at 53 (quoting labor lawyer Ellen McLaughlin).~~
~~242 H.R. 1065, §§ 3(1), 4, 5(2)(B)(i).~~
~~243 Id. § 6.~~
~~244 Id. § 3.~~
~~245 Id. § 2(5).~~
~~246 See H. REP. NO. 116-494 at 57 (2020).~~
~~247 H.R. 5, 117th Cong. (2021).~~
~~248 Id. § 2.~~
~~249 Id. §§ 3, 4, 6, 9; See also S. 393, 117th Cong. (2021), § 2.~~
~~Congressional Research Service~~
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link to page 4 link to page 6 link to page 20 link to page 21 link to page 6 link to page 6 link to page 21 link to page 22 link to page 6 link to page 6 link to page 13 link to page 18 link to page 23 link to page 23232 29 U.S.C. § 2612(3). For covered nonmilitary families, the FMLA affords 12 weeks of leave to care for a family member. Id. § 2612(1). 233 Williamson, supra note 230, at 202. 234 28 U.S.C. § 1875. 235 20 C.F.R. § 615.8(g)(3)(i)(A); OFF. OF PERSONNEL MGMT., FACT SHEET: COURT LEAVE, https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/court-leave/ (last visited June 8, 2023). Congressional Research Service 24 link to page 27 link to page 26 link to page 26 link to page 27 link to page 28 link to page 4 link to page 7 link to page 18 link to page 20 link to page 23 link to page 23 link to page 23 link to page 24 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers juror.236 Other state laws restrict the working hours an employer can require during jury service or bar employers from requiring jurors to use sick leave or vacation to cover their service.237 In addition to protections for jury service, bone-marrow or organ donors often receive time off.238 Some states provide leave for those who volunteer as emergency or disaster service workers.239 Voting, too, is commonly supported by leave entitlements, mandated in at least 30 states.240 These types of leave requirements may generally call for shorter leave entitlements than would pregnancy—often a matter of days or even hours rather than weeks or months. They may serve as useful points of comparison, however, because they (unlike many disability accommodations) anticipate a temporary, rather than permanent, alteration of workplace obligations. Proposed reforms to strengthen protections for pregnant people go beyond workplace leave and accommodation requirements. The Equality Act, passed by the House of Representatives in early 2021, would broaden pregnancy antidiscrimination law beyond employment, applying it in many other areas of public life.241 The bill includes provisions defining pregnancy discrimination as sex discrimination and further addresses discrimination against breastfeeding women.242 Conclusion and Considerations for Congress A cluster of federal statutes currently protects pregnant workers. As it stands, Title VII, including its PDA provisions, mainly protects pregnant workers from employer bias by barring employers from using pregnancy in employment decisions.243 The 2022 PWFA mandates pregnancy accommodations at work.244 The law is modeled on the ADA, which requires accommodations for pregnancy conditions that rise to the level of a disability.245 How courts and regulators will apply the PWFA, particularly where it departs from established ADA law, remains to be seen. The FMLA provides affirmative benefits for some pregnant workers, most notably unpaid leave for eligible employees.246 The FLSA, as amended by the PUMP for Nursing Mothers Act, separately requires break time and other benefits for nursing mothers.247 236 See, e.g., ALA. CODE § 12-16-8 (1975); CAL. LABOR CODE § 230(a); 705 ILL. COMP. STAT. ANN. § 305/4.1(b) (1991); N.Y. JUD. LAW § 519; Williamson, supra note 230, at 201 (“Every state except Montana provides some type of specific workplace protection for those serving jury duty.”); Runge, supra note 223, at 462; Marianne DelPo Kulow, Legislating A Family-Friendly Workplace: Should It Be Done in the United States?, 7 NW. J. L. & SOC. POL’Y 88, 95 (2012). As one analysis concluded, such legislation “reflect[s] the value society places on participating in the justice system.” Runge, supra note 223 at 462. 237 Williamson, supra note 230, at 209. Some observers describe paid jury duty as a “civic responsibility” employers should shoulder. Jamie Philpotts, Los Angeles-Based Latham & Watkins Was Recently Reprimanded by A Local Federal Judge for Not Allowing a Secretary Paid Leave for Jury Duty, OF COUNSEL, September 21, 1992, at 15 (quoting district judge). 238 Kulow, supra note 236, at 95. 239 Id at 95–96. 240 Id. at 95 n.55. 241 H.R. 5, 117th Cong. §§ 3, 4, 6, 9 (2021); see also S. 393, 117th Cong. § 2 (2021). 242 H.R. 5, 117th Cong. §§ 2, 9; see also S. 393 §§ 2, 9. 243 See supra notes 4–27 and accompanying text. 244 Pregnant Workers Fairness Act, Pub. L. No. 117-328, 136 Stat. 4459 (2022). 245 See supra notes 141–163 and accompanying text. 246 See supra notes 193–195 and accompanying text. 247 See supra notes 197–207 and accompanying text. Congressional Research Service 25 link to page 6 link to page 6 link to page 20 link to page 23 link to page 25 link to page 25 link to page 5 link to page 6 link to page 12 link to page 17 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers Over the years, Congress has expanded pregnant workers’ protections. Congress clarified Title VII’s application to pregnancy with the PDA; broadened the definition of disability within the ADA to include temporary disabilities, enhancing protection for pregnant employees (among others); and passed the PWFA and PUMP for Nursing Mothers Act.248 Several states have also passed pregnancy accommodations laws to supplement existing antidiscrimination measures.249 Courts have helped shape pregnancy protections as well ~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~Conclusion and Considerations for Congress~~
~~A cluster of federal statutes currently protects pregnant workers. As it stands, Title VII, including~~
~~its PDA provisions, primarily offers antidiscrimination protection against bias—barring~~
~~employers from using pregnancy in employment decisions.250 The FMLA and the ADA provide~~
~~affirmative benefits for some pregnant workers, most notably unpaid leave for eligible employees~~
~~and accommodations (including job modifications where reasonable) for pregnancy-related~~
~~disability.251~~
~~Over the years, Congress has expanded pregnant workers’ protections. It added the PDA to Title~~
~~VII to clarify its application to pregnancy, and it broadened the definition of disability within the~~
~~ADA to include temporary disabilities, enhancing protection for pregnant employees (among~~
~~others).252~~
~~Courts have also played a role in shaping pregnancy protections~~. The Supreme Court’s decision . The Supreme Court’s decision
in in Gilbert motivated passage of the PDA.motivated passage of the PDA.~~253~~250 More recently, the More recently, the ~~High~~ Court’s application of Title Court’s application of Title
VII’s PDA provisions in VII’s PDA provisions in Young ~~raises~~raised questions questions ~~about~~as to whether and when pregnancy whether and when pregnancy
accommodations are required under accommodations are required under ~~current law, at least in situations where employers~~
~~accommodate other employees.254 While Young established that an employer who accommodates~~
~~nonpregnant employees may be obligated to similarly accommodate pregnant women, the Court~~
~~did not develop a clear test for when this obligation arises. The precedent’s call for case-specific~~
~~analysis makes it difficult to define pregnant workers’ protections and their employers’~~
~~obligations.~~
~~In the face of piecemeal legislation and complicated judicial administration, some have called for~~
~~more explicit pregnancy protections, such as accommodations for nondisabling pregnancy-related~~
~~conditions or expanded leave. Several states have passed pregnancy accommodations laws to~~
~~supplement existing antidiscrimination measures.255 Federal proposals have included the PWFA’s~~
~~proposed accommodations requirements modeled on the ADA.256~~
~~In the future, if it seeks to enhance or consolidate protections, Congress may choose to amend~~
~~Title VII, the ADA, or the FMLA. Potential changes include clarifying which workers qualify as~~
~~similar in their ability to work when considering accommodation requests under the PDA.~~
~~Congress could expand the FMLA to cover pregnant workers currently excluded.~~
~~Another option might be to implement a separate accommodation regime modeled on the ADA.~~
~~The PWFA, passed by the House in 2021, takes this approach. Because it requires case-by-case~~
~~analysis of the worker’s needs and the potential hardship on a particular employer, some may see~~
~~this model as the most flexible. It may come with uncertainty, too, as a common pregnancy-~~
~~related modification may be reasonable in one workplace and not another. Congress might also~~

~~250 See supra notes 5-26 and accompanying text.~~
~~251 See supra notes 157-178 and accompanying text.~~
~~252 42 U.S.C. § 2000e(k); id. § 12102(4)(A); ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553~~
~~(2008); Young, 575 U.S. at 252 (Kennedy, J., dissenting); supra notes 17-21 and 168-183 and accompanying text.~~
~~253 42 U.S.C. § 2000e(k); supra notes 17-21.~~
~~254 See supra notes 87-145 and accompanying text.~~
~~255 See supra notes 190-195 and accompanying text.~~
~~256 Pregnant Workers Fairness Act, H.R. 1065, 117th Cong. (2021); see also S. 1486, 117th Cong. (2021).~~
~~Congressional Research Service~~
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~~link to page 6 link to page 6~~ ~~Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers~~

~~consider enumerating, as some state laws do, presumptively reasonable pregnancy~~
~~accommodations.257~~
~~Alternatively, federal and state legislation in other contexts unrelated to disabilities or~~
~~discrimination may provide models for enacting pregnancy-specific job protection and leave~~
~~options.~~
~~In any of these measures defining pregnancy protections, Congress may delineate covered~~
~~employers, deciding whether to exclude (as some antidiscrimination laws do) smaller employers,~~
~~religious employers, or certain government employers.258 Employee eligibility may also be a~~
~~consideration, as Congress could require minimum tenure or full-time status as a prerequisite.~~

~~Author Information~~

~~April J. Anderson~~

~~Legislative Attorney~~

that law.251 Congress then passed a separate law, the PWFA, mandating pregnancy accommodations. The result is expansive yet piecemeal legislation regarding the treatment of pregnancy in the workplace. If Congress seeks to enhance, restrict, or consolidate these measures, it may choose to amend Title VII, the PWFA, the ADA, the FLSA, or the FMLA. Congress may wish to take note of what issues emerge in courts’ and regulators’ application of the PWFA, for instance. With respect to that law, Congress might consider enumerating, as some state laws do, presumptively reasonable pregnancy accommodations.252 It could also exclude specific accommodations. In considering new measures, federal and state legislation in contexts unrelated to disabilities or discrimination may provide models for enacting pregnancy-specific job protection and leave options. Congress might consider enacting pregnancy-specific leave entitlements beyond those qualifying as reasonable accommodations under the PWFA, making leave available without requiring a pregnancy-related impairment, reasonableness, or lack of undue hardship. For example, Congress could expand FMLA leave for pregnant workers currently ineligible because of employer size or length of employment. Congress could also offer FMLA leave specific to pregnancy and childbearing (the FMLA, for example, offers additional leave for caring for a servicemember). Author Information April J. Anderson Legislative Attorney 248 42 U.S.C. § 2000e(k); id. § 12102(4)(A); ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553; Pregnant Workers Fairness Act, Pub. L. No. 117-328, 136 Stat. 4459 (2022); PUMP for Nursing Mothers Act, Pub. L. No. 117-328, Div. KK, § 102(a), 136 Stat. 4459 (2022); Young v. United Parcel Serv., Inc., 575 U.S. 206, 252 (2015) (Kennedy, J., dissenting); supra notes 16–20 and 165–192 and accompanying text. 249 See supra notes 213–216 and accompanying text. 250 42 U.S.C. § 2000e(k); supra notes 15–20. 251 See supra notes 78–130 and accompanying text. 252 See, e.g., COLO. REV. STAT. ANN. § 24-34-402.3(4)(b) (2016); NEV. REV. STAT. ANN. § 613.4371(2017); VA. CODE ANN. § 2.2-3909 (2021). Congressional Research Service 26 Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers

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~~257 See, e.g., COLO. REV. STAT. ANN. § 24-34-402.3 (4)(b); NEV. REV. STAT. § 613.4371; VA. CODE § 2.2-3909. The~~
~~PWFA calls for the EEOC to promulgate examples of reasonable accommodations. H.R. 1065, 117th Cong. § 4.~~
~~258 See supra notes 24-26 and accompanying text.~~
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