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

June 17, 2021 – July 3, 2023 R46821

Pregnancy and Labor: An Overview of Federal
July 3, 2023
Laws Protecting Pregnant Workers
April J. Anderson
Several different federal laws protect workers from discrimination based on pregnancy. The
Legislative Attorney
oldest of these, the Pregnancy Discrimination Act (PDA), generally protects job applicants and

employees from adverse action—for example, firing, demotion, refusal to hire, or forced leave—
because of pregnancy or related conditions. The PDA also addresses harassment based on
For a copy of the full report,
pregnancy and bans retaliation against workers for making complaints about pregnancy
please call 7-5700 or visit
discrimination. Pregnancy-related conditions can include fertility treatments, medical
www.crs.gov.
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 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
accommodate pregnant workers unless employers provide accommodations to other similarly situated nonpregnant workers.
So while employers cannot fire workers for being pregnant, this statute (depending on the facts) may not require them to
make workplace changes (e.g., scheduling flexibility, an extra bathroom break) simply because employees’ 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.

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Introduction
Federal laws have protected pregnant workers for decades. These laws generally bar employers
from taking adverse action against a worker because of pregnancy. Historically, these laws did not
typically require employers to make workplace changes to accommodate pregnancy, unless such
accommodations were 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 Commission (EEOC), the federal entity mainly charged with
monitoring compliance and enforcing antidiscrimination laws in employment, reports that it
receives thousands of pregnancy discrimination complaints each year.1 The majority of charges of
pregnancy discrimination allege that individuals faced termination based on pregnancy.2 Other
charges include claims that pregnant workers endured harsher discipline, suspensions pending
receipt of medical releases, suggestions that they undergo an abortion, and involuntary leave.3
This report provides an overview of laws protecting pregnant workers, including their substantive
provisions, legislative history, practical considerations, judicial interpretation, and limitations. In
addition, this report summarizes proposed pregnancy protections and describes other employment
laws that may serve as models for potential legislation.
Federal Law Prior to the Pregnancy
Discrimination Act
Before the enactment of the Pregnancy Discrimination Act (PDA), federal law did not expressly
address the discriminatory treatment of pregnant workers. The primary federal statute addressing
discrimination in the workplace, Title VII of the Civil Rights Act of 1964, makes it unlawful to
discriminate “against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.”4 Prohibited actions include
discharge, discrimination in pay, denial of promotion, demotion, harsher discipline, suspensions,
and forced leave.5 Along with adverse actions, Title VII bars harassment because of sex—that is,
harsh treatment severe or pervasive enough to alter the 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/data/pregnancy-discrimination-charges-FY-2010-FY-2021 (last visited June 7, 2023).
2 U.S. EQUAL EMP. OPPORTUNITY COMM’N, 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-discrimination-and-related-issues (last visited
June 7, 2023).
3 Id.; 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, U.S. EQUAL EMP. OPPORTUNITY COMM’N (February 15, 2012), http://www.eeoc.gov/eeoc/meetings/2-
15-12/williams.cfm.
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
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.”);
EEOC ENFORCEMENT GUIDANCE, supra note 2.
5 EEOC ENFORCEMENT GUIDANCE, supra note 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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file a discrimination complaint, or participate in the complaint.7 If they prevail on a claim of
discrimination or retaliation, employees may seek equitable relief and damages, including back
pay and punitive damages.8
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
Court took up the issue in General Electric Co. v. Gilbert. In that case, General Electric offered a
benefits plan to compensate employees unable to work because of illness or injury.9 The plan
excluded pregnancy and related conditions, but not other medical conditions, from coverage.10
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
Title VII because it did not treat men and women differently.11 The benefits plan did not divide
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.12 The
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
coverage “on any reasonable basis.”13 The outcome might be different if the employer intended to
target women for mistreatment, the Court acknowledged, but it concluded that General Electric’s
decision to exclude pregnancy was not pretext for sex discrimination.14
The Pregnancy Discrimination Act
In response to Gilbert, Congress passed the Pregnancy Discrimination Act as an amendment to
Title VII. The PDA did not alter Title VII’s provisions on remedies or enforcement. Instead, the
PDA added two phrases to Title VII’s definitions section clarifying that pregnancy discrimination
is a form of sex discrimination.15 The first phrase of the PDA adds pregnancy to the list of
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

(1993) (noting discrimination “includes requiring people to work in a discriminatorily hostile or abusive
environment”); U.S. EQUAL EMP. OPPORTUNITY COMM’N, HARASSMENT, https://www.eeoc.gov/harassment (last visited
June 7, 2023).
7 42 U.S.C. § 2000e-3(a); EEOC ENFORCEMENT GUIDANCE, 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-guidance-retaliation-and-related-issues (last
visited June 7, 2023).
8 42 U.S.C. § 1981; Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529 (1999); U.S. EQUAL EMP. OPPORTUNITY COMM’N,
REMEDIES FOR EMPLOYMENT DISCRIMINATION, https://www.eeoc.gov/remedies-employment-discrimination (last visited
June 7, 2023).
9 Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127 (1976), 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, 284–85 (1987) (noting “the PDA reflects Congress’
disapproval of the reasoning in Gilbert”); see also 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
always intended to protect all individuals from sex discrimination in employment—including but not limited to
pregnant women workers”).
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related medical conditions.”16 In light of this language, Title VII now expressly protects covered
employees and job applicants from discrimination, including demotion, firing, the denial of
employment, or harassment, based on pregnancy.17
In a 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
receipt of benefits under fringe benefit programs, as other persons not so affected but similar in
their ability or inability to work.”18 Legislative history suggests that Congress intended the
amendment to clarify that “distinctions based on pregnancy are per se violations of Title VII.”19
The PDA’s legislative history also suggests that, in enacting the statute, Congress did not mean to
single out pregnant women for special protection.20 On the other hand, 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 safeguards Title VII provides other protected groups; the
statute does not use similar language elsewhere.21 This unique language has caused some
confusion in the courts—most notably in assessing 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
version of the PDA, H.R. 6075); see also S. REP. NO. 95-331, at 3 (1977) (report from the Committee on Human
Resources to accompanying the Senate version of the PDA, S. 995) (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
medical conditions is discrimination based on sex”); Newport News, 462 U.S. at 681 (discussing legislative history of
PDA).
20 S. REP. NO. 95-331, at 4 (“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 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 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, at 3–4 (“We recognize that enactment of [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 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.”).
21 42 U.S.C. § 2000e(k); see also 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).
22 For a discussion of this textual difference in the disparate impact context, see infra notes 132–139 and accompanying
text.
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-discrimination (last visited June 7, 2023).
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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, 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 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 the doctrine to Title VII claims); 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
643, 648 (8th Cir. 1987); see also S. REP. NO. 95-331 at 3–4 (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
medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are
disabled from working”).
32 Germain v. Cnty. of Suffolk, No. 07-CV-2523-ADS ARL, 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,
2020).
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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. 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 . . . is sufficient to raise the inference of discrimination.”39 As in other
discrimination cases, courts may infer discrimination when employers fail to give credible,
consistent reasons for the adverse action.40 An employer may lack credibility, for example, when
managers’ given reasons for firing a pregnant employee change after she files suit.41 Changing
standards after an employee announces a pregnancy can also signal discrimination. One employer
at an auto-parts store, for example, allegedly decided on the position’s lifting requirement only
after a worker became pregnant. In 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 conclud[ed] ‘oh well, I guess you don’t meet it. So you can’t
come back to work.’”42
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); see also Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir.
2006) (holding two-month window “sufficient to establish a link between [employee’s] pregnancy and her
termination”).
40 Legg v. Ulster Cnty., 820 F.3d 67, 70 (2d Cir. 2016).
41 Asmo, 471 F.3d at 596 (pointing to evidence suggesting inconsistent statement and reversing summary judgment).
42 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).
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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 pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.”50
A single derogatory comment is rarely enough to show a hostile work environment.51 It is also not
enough that a particular employee found the workplace unwelcoming; a harassment claim
requires that an “objectively reasonable person would find” the workplace hostile or abusive.52
Assessment of the working environment is fact-specific, and courts must examine “the totality of
the circumstances.”53 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
performance.54 Consideration of all the circumstances means that a court will assess 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).
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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
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
fertility treatments, telling her “that the termination was ‘in [her] best interest due to [her] health
condition.’”62 In another case of pre-pregnancy discrimination, a federal district court in Illinois
rejected an employer’s argument that the PDA did not cover discrimination based on inability to
become pregnant naturally.63 The court held that the PDA protected an employee who alleged that
her supervisor “verbally abused [her]” about her fertility treatments, questioned whether she
could manage pregnancy and 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 F.3d at 649 (rejecting district court’s conclusion that because infertility is gender-neutral, plaintiff could
not pursue a Title VII claim).
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 discrimination based on a woman’s plans to become pregnant); 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 plan’s exclusion of infertility treatment does not violate the PDA because “[i]nfertility is strikingly
different from pregnancy” (internal quotation marks omitted)).
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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 also applied the PDA to various postpregnancy conditions. A woman may not be
fired because of recent childbirth, for example.67 Postpartum medical complications are
impermissible grounds for adverse employment action as well.68 As one court put it, the PDA
encompasses “conditions related to pregnancy that occur after the actual pregnancy.”69 A woman
with a postpartum condition must be treated as are other workers with nonpregnancy illnesses.70
Courts have held that postpartum depression and a disrupted menstrual cycle, for example, fall
within this rule.71
Courts have disagreed about whether lactation is a pregnancy-related condition covered by the
PDA. At least at first, the prevailing view among reviewing district courts was that breastfeeding
was ineligible for PDA protection, as it was viewed as a medical condition related not to
pregnancy or childbirth but instead to subsequent child care.72 At least two federal courts of
appeals have also opined, either in a holding or in nonbinding dicta, that breastfeeding is not a
protected medical condition under the PDA.73 However, more recent court decisions, including
one by a federal court of appeals, have concluded otherwise,74 leading one district court 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 could not preclude women of childbearing age from employment on the
grounds that chemical exposure would be dangerous to a fetus should a worker become pregnant); see also EEOC
ENFORCEMENT GUIDANCE, supra note 2.
67 Neessen v. Arona Corp., 708 F. Supp. 2d 841, 851 (N.D. Iowa 2010); Shafrir v. Ass’n of Reform Zionists of Am.,
998 F. Supp. 355, 363 (S.D.N.Y. 1998).
68 Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 544 (S.D.N.Y. 2009).
69 Id.
70 Id. at 545.
71 Id. 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 postpregnancy employment until worker had returned to a normal
menstrual cycle violated PDA); see also Infante v. Ambac Fin. Grp., No. 03 CV 8880, 2006 WL 44172, at *4
(S.D.N.Y. Jan. 5, 2006) (noting that plaintiff’s thyroid condition, if exacerbated by recent pregnancy, might fall within
the PDA’s purview), aff’d, 257 F. App’x 432 (2d Cir. 2007).
72 See, e.g., Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1491 (D. Colo. 1997) (observing that reviewing courts
had “uniformly held that needs or conditions of the child which require the mother’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,
1999); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869–70 (W.D. Ky. 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
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
workers by providing additional breast-feeding leave not available to male workers”), aff’d, 951 F.2d 351 (6th Cir.
1991).
73 Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 438 (6th Cir. 2004) (assessing state law claim and suggesting in
dicta that the PDA would not reach breastfeeding); Wallace v. Pyro Min. Co., 951 F.2d 351, (No. 90–6259, 1991 WL
270823, at *1 (6th Cir. Dec. 19, 1991)) (per curiam) (table, text in Westlaw) (stating in dicta that the PDA would not
cover breastfeeding); Notter v. N. Hand Prot., a Div. of Siebe, Inc., 89 F.3d 829, 1996 WL 342008, at *5 (4th Cir. June
21, 1996) (table, text in Westlaw) (describing aspects of Fourth Circuit’s prior ruling in Barrash v. Bowen, 846 F.2d
927, 931 (4th Cir. 1988) (per curiam), 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 medical condition related
to pregnancy or to childbirth”).
74 EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013); Hicks v. City of Tuscaloosa, 870 F.3d 1253,
1258–59 (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.75 Courts taking this view have emphasized, for example, that a
woman unable to breastfeed may experience pain, 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
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
employees.78 After the PDA’s passage, courts struggled to decide which workers were similarly
situated under the Act. Pregnant women often face work restrictions, such as lifting constraints,
limits on chemical exposure, a need for more bathroom breaks, or other scheduling requirements
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
employers must treat pregnant women the same as employees with off-the-job injuries, but that
employees injured on the job were not relevant comparators.81 Other courts concluded that any
accommodated employees were relevant.82 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.
78 42 U.S.C. § 2000e(k).
79 Bradley A. Areheart, Accommodating Pregnancy, 67 ALA. L. REV. 1125, 1133 (2016) (“The most commonly
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
recognizing employee’s doctor restricted her exposure to three chemicals present at her workplace).
80 Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 285 (1987) (indicating “Congress intended the PDA to be a
floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise” (internal
quotation marks and citation omitted)).
81 Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548–49 (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),
abrogated by Young v. United Parcel Serv., Inc., 575 U.S. 206 (2015); 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 Young, 575 U.S. at 206.
82 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., 220 F.3d 1184, 1196 (10th Cir. 2000).
83 Ensley-Gaines, 100 F.3d at 1226.
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The Supreme Court addressed the issue in its 2015 decision in Young v. United Parcel Service,84
clarifying that employers must provide accommodations for pregnant women only in limited
situations.85 In the Court’s view, employers could rely on circumstances beyond employees’
physical needs to justify disparate treatment. Following Young, federal courts have wrestled with
its application to workers’ claims that, when it comes to pregnancy accommodations, they have
been treated less favorably than other employees similar in their ability to work.
The Young Decision
In Young, 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
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
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
extend the same privilege to pregnant employees who were similar in their ability to work
violated the PDA.86
The Supreme Court agreed that the PDA requires a court to compare accommodations given
pregnant and nonpregnant workers 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 more than “[s]imply including pregnancy among Title VII’s protected traits,” and thereby
barring adverse employment actions based on pregnancy, because that approach “would not
overturn Gilbert 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 employment-related
purposes . . . as other persons not so affected but similar in their ability or inability to work”88—
would be rendered “superfluous” if the statute did not require employers to accommodate
pregnant employees in at least some situations when they accommodated others.89
In a six-to-three decision (with Justice Alito concurring), however, the Court ultimately
recognized only a narrow accommodation requirement. The Court held that 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 whether an
employer accommodates other workers, but why it does so. 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.
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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
discrimination, the Court held that those accommodations did not necessarily show that she was
entitled to a pregnancy accommodation.93 The employer could still prevail by explaining its sex-
neutral reasons for accommodating others. In this case, UPS had unique reasons for offering each
type of accommodation.94 UPS wanted to implement the ADA, to 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.95 Such reasons, the Court surmised, might show on
remand that UPS did not single out pregnant women for exclusion from its accommodation
procedures.96
Along with 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 an
employer’s accommodations. According to the Supreme Court, a court should consider “the
combined effects of” an employer’s policies and decide whether they significantly burden
pregnant employees in a way that suggests intentional discrimination. “[E]vidence that the
employer accommodates a large percentage of nonpregnant workers while failing to
accommodate a large percentage of pregnant employees” would suggest such a burden, the Court
opined.97 A court would then consider “the strength of [the employer’s] justifications for each
[accommodation] when combined,”98 and the employer’s reasons must be “sufficiently strong” to
justify the burden on pregnant workers.99 If the reasons are not strong enough, the Court held, the
circumstances may “give rise to an inference of intentional discrimination.”100 Cost alone, the
Court added, would not “normally” meet this test 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
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).
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only a limited assessment of comparators—those doing identical or very similar work.105 In
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 protections for religious practice employ,
both of which explicitly require some “accommodation” unless it would impose an “undue
hardship.”106
In dissent, Justice Scalia, joined by Justices Kennedy and Thomas, concluded that the PDA did
not offer pregnant workers protection exceeding that of other protected classes.107 In amending
Title VII, Congress simply made clear that pregnancy discrimination is sex discrimination, 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 may not “single[]
pregnancy out for disfavor” as did the benefits plan in Gilbert.109 The PDA’s second phrase
served to add, in Justice Scalia’s judgment, “clarity,” not a new substantive protection.110 In a
separate dissent, Justice Kennedy also pointed out that at UPS “[m]any other workers with health-
related restrictions were not accommodated either.”111
Lower Courts’ Application of Young
Under the PDA, plaintiffs may raise both a “traditional” Title VII claim (such as harassment or
adverse action against a pregnant person with a discriminatory motive) and a PDA-specific claim
(that the employer did not accommodate pregnant women as it did others similarly situated).112
Young expounded on a test for the second type of claim, requiring courts to evaluate whether
accommodation policies excluding pregnant workers “impose a significant burden on pregnant
workers” and whether the “legitimate, nondiscriminatory reasons” for the policies are
“sufficiently strong to justify the burden.”113 This second type of claim has proven difficult to
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.).
108 Id. (Scalia, J., dissenting).
109 Id.at 246 (Scalia, J., dissenting).
110 Id. at 245 (Scalia, J., dissenting).
111 Id. at 251 (Kennedy, J., dissenting).
112 42 U.S.C. § 2000e(k); Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463, 475 (D.D.C. 2016).
113 Young, 575 U.S. at 229 (internal quotation marks omitted); see also Allen-Brown, 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...)
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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 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 employer’s actions g[i]ve rise to [a] valid inference of unlawful
discrimination.”119
At the very least, Young made it harder for pregnant workers to prevail under the PDA on a claim
that they should be accommodated because other workers are accommodated. Young overturned
the rule, once applied in some courts, that pregnant workers could show discrimination by simply
identifying other employees receiving accommodations as comparators.120 Instead, as the Second
Circuit stated, “[w]hether it is appropriate to 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 purported reasons for adopting them.”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, 2020),
https://www.uschamber.com/letters-congress/us-chamber-key-vote-letter-the-pregnant-workers-fairness-act (last visited
June 7, 2023).
117 Durham, 955 F.3d at 1288 (Boggs, J., concurring); Lewis v. City of Union City, 918 F.3d 1213, 1228 n.14 (11th Cir.
2019) (noting Young identified seven types of accommodated workers, including some accommodated because of other
laws or collective bargaining agreements).
118 Durham, 955 F.3d at 1288 (Boggs, J., concurring). One commenter concluded that, under Young, employers who
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.
C. L. REV. 152, 171 (2019).
119 Durham, 955 F.3d at 1289 (Boggs, J., concurring) (internal quotation marks and citation omitted).
120 Young v. United Parcel Serv., Inc., 575 U.S. 206, 210 (2015); Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th
Cir. 1996); see also EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1196 (10th Cir. 2000).
121 Legg v. Ulster 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.
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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
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 the plaintiff’s 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. All in all, when an
employer never (or hardly ever) grants accommodations for nonpregnant employees, it generally
does not have to accommodate a pregnant employee under the PDA.129 For example, shortly after
Young, the Fifth Circuit held in an unpublished, nonprecedential opinion that a nurse fired
because of pregnancy-related lifting restrictions could not make out a PDA claim given that the
employer 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 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.
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-
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).
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 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, The Civil Rights Act of 1964: An Overview, by Christine J. Back, at 72 (2020). A
disparate impact theory is distinct from the “significant burden” inquiry announced in Young 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)).
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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.
Before the PDA overruled Gilbert and set up special provisions for pregnancy, the Supreme Court
had stated in nonbinding dicta that pregnant women could bring disparate impact claims under
Title VII.133 However, some have argued that the PDA precludes a Title VII disparate impact
claim based on pregnancy because it requires that a pregnant worker be treated the same as
others.134 Thus, the argument goes, similar treatment cannot be a violation even if it has a
disparate impact.135 Still, several courts have considered disparate impact claims under the
PDA.136 The Seventh Circuit emphasized that the PDA is “a definitional amendment” providing
“no substantive rule to govern pregnancy discrimination.”137 As such, the court found that the
PDA did not eliminate any claims otherwise available under Title VII for pregnancy
discrimination. Others also point out that while the Young Court acknowledged the plaintiff had
not brought a disparate impact claim, it made no suggestion that such a claim is unavailable for
pregnant employees.138
EEOC enforcement guidance endorses application of a disparate impact theory to pregnancy
discrimination claims. The agency states that while disparate impact claims usually require a
statistical showing of the harm of a policy on a protected group, “statistical evidence might not be
required if it could be shown that all or substantially all pregnant women would be negatively
affected by the challenged policy.”139
The ADA, Pregnancy-Related Disabilities, and
Accommodations
Separate from Title VII and the PDA’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 “employment opportunities or
job status” for pregnant workers, would not support a disparate impact claim. Id. at 145. The Court ultimately held that
a pregnant worker’s claim based on sick pay policies must fail under Gilbert.
134 Camille Herbert, Disparate Impact and Pregnancy: Title VII’s Other Accommodation Requirement, 24 J. GENDER,
SOCIAL POLICY & THE LAW 107, 137 (2015); Alexander, supra note 118, at 159; Cal. Fed. Sav. & Loan Ass’n v. Guerra,
479 U.S. 272, 298 n.1 (1987) (White, J., dissenting).
135 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
manner as other disabilities.”).
136 Smith v. F.W. Morse & Co., 76 F.3d 413, 420–22 (1st Cir. 1996); Scherr v. Woodland Sch. Cmty. Consol. Dist.,
867 F.2d 974, 983 (7th Cir. 1988); Germain v. Cnty. of Suffolk, 672 F. Supp. 2d 319, 321 (E.D.N.Y. 2009).
137 Scherr, 867 F.2d at 978.
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).
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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
reh’g (Feb. 26, 2018) (applying Rehabilitation Act to medical student claiming pregnancy-related disability).
144 42 U.S.C. § 12117(a); EEOC ENFORCEMENT GUIDANCE, supra note 2. The EEOC’s Office of Federal Operations
enforces Rehabilitation Act provisions for federal employees. U.S. EQUAL EMP. OPPORTUNITY COMM’N, APPEALS,
https://www.eeoc.gov/federal-sector/appeals (last visited June 7, 2023).
145 2 U.S.C. 1302(a).
146 Until it was amended in 2008 to expand the statutory definition of “disability,” the ADA generally did not protect
workers with short-term 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; Young v. United Parcel Serv.,
Inc., 575 U.S. 206, 252 (2015) (Kennedy, J., dissenting). The expanded disability coverage from the ADA
Amendments Act also applies to Rehabilitation Act claims. Alexander v. Washington Metro. Area Transit Auth., 826
F.3d 544, 547 (D.C. Cir. 2016). 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).
147 Hostettler v. Coll. of Wooster, 895 F.3d 844, 854 (6th Cir. 2018).
148 Price v. UTi, U.S., Inc., No. 4:11-CV-1428 CAS, 2013 WL 798014, at *2–3 (E.D. Mo. Mar. 5, 2013).
149 Heatherly v. Portillo’s Hot Dogs, Inc., 958 F. Supp. 2d 913, 921 (N.D. Ill. 2013).
150 McKellips v. Franciscan Health Sys., No. C13-5096MJP, 2013 WL 1991103, at *4 (W.D. Wash. May 13, 2013).
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 7,
2023).
152 42 U.S.C. § 12102(1)(A); EEOC 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...)
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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;
that is, the hardship exception does not come into play absent a determination that a reasonable accommodation was
available.”).
161 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) (stating that dispute of fact existed as to whether plaintiff’s request for one additional week of leave
unduly burdened employer).
162 LaPorta, 163 F. Supp. 2d at 768; see also Jones v. Children’s Hosp. of Phila., No. CV 17-5637, 2019 WL 2640060,
at *11 (E.D. Pa. June 27, 2019) (applying a state accommodations law requiring the “same framework” as the ADA).
163 42 U.S.C. § 12111(5); see also supra note 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).
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“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).
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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 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).
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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).
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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).
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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”).
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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.
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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 receives the same status, benefits, and pay at the rate
previously earned.229 The servicemember is also entitled to the same promotion opportunities and
pay increases available to those who did not take leave for military duties and accrues seniority
during deployment.230 Employers can escape these obligations, however, if their “circumstances
have so changed as to make such reemployment impossible or unreasonable.”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 accommodate military service. These benefits
include leave rights for military spouses in connection with a deployment.233
Aside from military service, 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 unusual in
employment law, “used essentially exclusively in the context of military service”).
231 38 U.S.C. § 4312(d)(1)(A).
232 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).
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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.
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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. The Supreme Court’s decision in Gilbert
motivated passage of the PDA.250 More recently, the Court’s application of Title VII’s PDA
provisions in Young raised questions as to whether and when pregnancy accommodations are
required under 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).
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Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers

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