Recent legislation could protect pregnant workers who choose to have an abortion.
The Equal Employment Opportunity Commission (EEOC) recently announced its first lawsuit against an employer under the Pregnant Workers Fairness Act (PWFA). The EEOC contends that Wabash National Corporation violated the PWFA by denying a pregnant worker’s request to transfer to a job position that would not require her to lie on her stomach. In response to this denial, the employee was forced to resign. She was eight months pregnant at the time.
The United States has a long history of failing to protect people against pregnancy discrimination. Throughout the 20th century, employers routinely excluded women from certain types of work and fringe benefits based on the woman’s capacity to become pregnant.
The U.S. Supreme Court does not consider pregnancy discrimination to be sex-based. In General Electric v. Gilbert, the Court reasoned that an insurance program that failed to cover pregnancy-related disabilities did not violate Title VII of the Civil Rights Act of 1964––nor would it violate the Equal Protection Clause–––because men were not covered for more disabling conditions than women.
In its 2022 decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court used similar reasoning in concluding that abortion restrictions would not violate the Equal Protection Clause.
In response to the Court’s decision in Gilbert, the U.S. Congress passed the Pregnancy Discrimination Act of 1978. This law explicitly recognized discrimination based on “pregnancy, childbirth, or related medical conditions” as sex discrimination under Title VII. Subsequent legislation likewise prohibited pregnancy discrimination in certain contexts, including against people with pregnancy-related disabilities, employees seeking unpaid parental leave, and employees who need to pump breast milk at work.
Despite the patchwork of pregnancy discrimination protections, pregnant employees have continued to be denied temporary job accommodations. One woman reportedly lost her job after her employer marked her absences due to morning sickness and emergency room visits as “unexcused.” To protect women in similar circumstances, Congress passed the PWFA with strong bipartisan support in 2022.
The PWFA requires public and private employers with 15 or more employees to provide reasonable accommodations to workers with a physical or mental condition “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” Common accommodations that the PWFA might require include flexible break times, ability to sit while performing job functions, work schedule adjustments, and leave for appointments or hospital visits. The PWFA also prohibits employers from retaliating against employees who request or receive accommodations.
Last year, the EEOC issued a final rule implementing the PWFA. The rule includes a non-exhaustive list of common conditions that qualify as “related medical conditions” under the PWFA, including miscarriage, stillbirth, preeclampsia, and––notably––abortion care.
The EEOC’s decision to include abortion as a covered condition garnered significant attention and controversy. In response to the EEOC’s proposed rule, about 94,000 advocates for and against abortion access submitted public comments advancing arguments supporting or condemning the inclusion of abortion. Anti-abortion commenters cited moral and religious objections to abortion. These commenters argued that abortion is not health care, so it should not be covered by the PWFA.
Critics of the proposed rule also expressed concerns that the PWFA’s requirement that employers provide accommodations to employees seeking abortion care would require individuals to violate state laws that prohibit individuals from aiding in the performance of an abortion. This argument underlies several lawsuits throughout the country challenging the EEOC’s rule. Some courts have blocked the rule from taking effect in certain states.
Despite this argument, no commenter identified a particular action that an employer would be required to take that would violate state abortion restrictions.
In its final rule, the EEOC found these arguments unpersuasive. It explained that including abortion as a covered condition is consistent with longstanding Title VII precedent, which applies the same definition of conditions related to pregnancy as the PWFA. The EEOC also emphasized that the PWFA only prevents workplace discrimination. It does not require employers to pay for abortion services or dictate when an employee can or should have an abortion. For these reasons, the EEOC found it inappropriate to exclude abortion protections as mandated under the PWFA.
Deborah A. Widiss of Indiana University Maurer School of Law has argued that although the PWFA will not directly protect access to reproductive health care, it could mitigate some of the harms caused by state abortion restrictions.
Many pregnant people are denied or delayed access to abortion care because of state abortion bans. One in five pregnant people are forced to travel out of state, which often requires them to take time off of work. These barriers to abortion care disproportionately affect low-income individuals, minimum-wage employees, and employees whose jobs have attendance-based policies. Under such policies, a pregnant person risks losing her job. The financial consequences of risking a job caused by barriers to seeking abortion care, in addition to the costs of traveling to a clinic and paying for an abortion, can be prohibitive.
Widiss explains that the PWFA could be interpreted to require employers to provide protected leave for an employee to seek an abortion and accommodations for employees recovering from abortion care. Under this interpretation, the law would also prohibit discrimination or retaliation against an employee who chose to obtain an abortion. These protections would, at a minimum, provide job security for employees who already face significant financial barriers to seeking reproductive health care.
Due to the recency of the PWFA and the current presidential administration’s positions on abortion, the extent to which the PWFA will be used to protect pregnant people who seek abortion care remains to be seen. If current challenges to the PWFA and the EEOC’s implementing rules succeed, the protections the law provides could be short-lived.
