The Reasonable Pregnant Worker

Abstract

Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a needed paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to "reasonable accommodations" for their pregnancy, childbirth, and related medical conditions, so long as they do not impose an "undue hardship" on their employer. The PWFA dictates that the law's key terms, "reasonable accommodation" and "undue hardship," should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and new PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the ADA's statutory and regulatory text, and is in tension with the EEOC's new PWFA regulations, producing a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants. 

This Article is the first to address how the chaotic ADA doctrine will impact implementation of the PWFA and to consider how ADA caselaw should be read in conjunction with the EEOC's new PWFA rule. Anticipating future litigation, this Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA regulations. It argues that the PWFA rule is entitled to some deference under Loper Bright Enterprises v. Raimondo because Congress delegated specific authority to the EEOC to interpret the phrase "reasonable accommodation." Finally, this Article demonstrates why, under its proposed framework, the PWFA will often require employers to accommodate temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw.

Keywords: pregnancy discrimination, pregnancy accommodation, employment law, employment discrimination, pregnancy, PWFA, Pregnant Workers Fairness Act, ADA, disability, disability law, disability accommodations, work law, EEOC, Loper, Loper Bright, reasonable accommodation