Fresh Off First PWFA Lawsuit, EEOC’s Top Lawyer Says More Are Coming

The U.S. Equal Employment Opportunity Commission is hearing from scores of workers who have been penalized for needing time off or were forced to take unpaid leave because they were pregnant, and the agency is taking action under the Pregnant Workers Fairness Act, EEOC general counsel Karla Gilbride said Thursday.  

The agency filed its first lawsuit under the federal law Tuesday, alleging trucking equipment manufacturer Wabash National put a worker on unpaid leave instead of trying to accommodate her pregnancy as the PWFA requires. The law has been in effect since June 2023 and requires employers to try to provide reasonable accommodations to workers with pregnancy-related conditions. 

The EEOC also alleged that instead of complying with the separate paperwork requirements under the PWFA, Wabash asked the worker for medical information that violated the Americans with Disabilities Act. 

“There is a case that we filed that kind of illustrates some of these bigger trends in terms of enforcement and the PWFA,” Gilbride said during a Thursday webinar. 

Defaulting to unpaid leave instead of working with a pregnant employee to find a way they can continue to do their job is a common problem the EEOC has observed in a little over a year of enforcing the PWFA, Gilbride said. 

Another is bosses who drag their feet in providing accommodations to pregnant or lactating workers, leaving them without options, even though those conditions are temporary. 

“These undue delays in granting accommodations will sometimes force that choice for someone, which is the exact choice between your health and your job that the PWFA was trying to eliminate,” she said. 

As of the end of May, nearly a year after the law went into effect, the agency had rounded up nearly 1,900 charges of discrimination under the PWFA, Gilbride said. For context, in fiscal year 2022, the agency received nearly 73,500 charges under all the federal discrimination laws it enforces. 

The EEOC also announced Wednesday that it has reached a conciliation with Florida company ABC Pest Control to settle a PWFA charge. That case also involved the issue of leave, in this case a worker who was denied time off to attend prenatal doctor’s appointments, Gilbride said Thursday. 

She noted that the ABC Pest Control case exemplified a common problem the agency is seeing — workplaces with inflexible attendance policies that assess penalty “points” when a worker is absent, even when that absence is related to their protected pregnancy. 

In another common scenario, employers will often put a pregnant worker on unpaid leave as kind of a “knee-jerk reaction” to an accommodation request, Gilbride said Thursday. 

The PWFA requires that employers engage in a back-and-forth process and not necessarily default to leave, especially if that is not what the worker asked for. 

“And unfortunately, that sort of a knee-jerk reaction is something that we do see employers kind of defaulting to, and I wanted to raise that as a cautionary note in terms of things that we're seeing,” Gilbride said. 

If someone asks for accommodation and the employer responds by saying it needs to consider the request, but in the meantime, the worker should go home without pay, she explained, “that can raise questions about whether the person's rights have been interfered with.”

She also cautioned employers not to use their Americans with Disabilities Act paperwork for PWFA requests, even though there are similarities between the two laws. The Wabash lawsuit shows this is something the EEOC is watching for, Gilbride said. 

Because pregnancy is not by itself a disability, employers using their ADA accommodation paperwork process on pregnant workers could find themselves in violation of multiple laws, she warned. 

“Not only does that raise concerns under the PWFA, but it separately raises concerns that the employer in that case would be seeking disability information when there's not a medical need for it, or not a business need for it, and could constitute a violation of the ADA itself,” she said. 

Gilbride said education and litigation go hand in hand when it comes to ensuring compliance with the PWFA.

“Changing policies and making sure that future pregnant workers don’t run into the same sorts of problems” is key, she said. “Litigation is one of the tools that we have to make sure those policies do get changed.” 

—Editing by Vaqas Asghar and Kelly Duncan.