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The Pregnant Workers Fairness Act (PWFA) takes effect on June 27^th, 2023. How much do you know about this new act? To find out, take the following quiz created by Robin Shea, Attorney at the law firm, Constangy Brooks Smith & Prophete LLP.

(The answers are provided at the end of each question.)

No. 1: Title VII was amended in 1979 to prohibit pregnancy discrimination. So, what’s the point of this Pregnant Workers Fairness Act?

1. Title VII prohibits discrimination based on pregnancy but doesn’t clearly require reasonable accommodation of pregnancy.
2. The PWFA expressly requires covered employers to accommodate employees’ temporary limitations resulting from pregnancy or pregnancy-related conditions unless doing so would be an undue hardship.
3. The PWFA targets pregnant employees, offering the same protections based on the same conditions as offered by ADA.
4. A & B
5. A & C

ANSWER: D

Title VII was amended back in the days when employers often did blatantly (but legally) discriminate against employees for being pregnant – for example, by requiring them to quit, or failing to promote them, or paying them less. “Reasonable accommodation” was a fairly new concept. Since 1979, many states have enacted laws requiring employers to make reasonable accommodations for pregnancy and related conditions, and with the PWFA, federal law is catching up.

No. 2: Why wouldn’t the Americans with Disabilities Act cover reasonable accommodations for pregnant workers?

1. Because pregnancy is not usually a “disability.”
2. Because pregnancy is a temporary condition, and the ADA covers conditions that are relatively long-term.
3. Because pregnancy is not a disease.
4. All of the above.
5. None of the above.

ANSWER: D. A normal, uneventful pregnancy is not a “disability” within the meaning of the ADA because it’s not an illness and because its limitations are very temporary in nature. Therefore, the ADA isn’t much help when it comes to the majority of pregnancy accommodation situations.

(However, an employee who has complications of pregnancy, or who has long-term health issues resulting from childbirth is very likely protected by the ADA. As of June 27^th , such an employee would be covered under both the ADA and the PWFA.)

No. 3: Elvira is six months pregnant, but she hasn’t told anyone at work yet. As far as they know, she has just gained weight. On June 28, 2023, she picks up a heavy box in the copy room and throws out her back, which requires her to take bed rest for the rest of her pregnancy. Elvira sues her employer under the PWFA for failing to reassign her lifting duties as a reasonable accommodation for her pregnancy. Does her lawsuit have a chance?

1. Yes, because she is pregnant, and her employer did not accommodate her. Case closed.
2. Yes, because a woman should never have to lift a heavy box by herself.
3. No, because her employer did not know she was pregnant and therefore had no reason to believe accommodations were needed.
4. No, because Elvira should know better than to try to lift a heavy box by herself when she was six months pregnant.

ANSWER: C. Under the PWFA, the employer is required to try to accommodate “known limitations” related to pregnancy or pregnancy-related conditions. Elvira kept her pregnancy a secret, so she cannot sue her employer for violating the PWFA. Well, let me rephrase that. Anyone can sue anyone for anything, but Elvira should lose her PWFA lawsuit.

No. 4: Which of the following violate the PWFA?

1. Refusing to make a reasonable accommodation for a known limitation related to pregnancy or a pregnancy-related condition when the accommodation would not be an undue hardship.
2. Requiring an employee to accept a reasonable accommodation that was not arrived at using the “interactive process.”
3. Taking adverse action against an employee because she sought a reasonable accommodation for pregnancy or a pregnancy-related condition.
4. Asking a pregnant employee what her due date is and what she is going to name the baby.
5. All of the above.
6. A, B, & C

ANSWER: F

D is probably all right, but even there, avoid following up with negative or off-color comments.

No. 5: Mary, who is pregnant, is a stellar candidate for the job. But the hiring manager offers the job to the distant second-place candidate Janice, who is in her mid-50s and has grown children. The hiring manager tells you confidentially that Mary was vastly more qualified but that he chose Janice “because of that new law that requires employers to make accommodations for pregnancy and we don’t want to get involved in that.” Is this

1. Legal
2. Illegal

ANSWER: B. The PWFA specifically provides that it is unlawful for an employer to fail to hire a qualified candidate so that it can avoid having to make pregnancy accommodations.

No. 6: Victoria works at a fast food establishment and has to be on her feet most of the day. After she becomes pregnant, she brings a note from her doctor saying that she will need two 15-minute sit-down breaks per eight-hour shift. The store manager does not believe that the breaks can be accommodated, but she remembers reading somewhere that a leave of absence is a type of reasonable accommodation. And Victoria is even eligible for leave under the Family and Medical Leave Act. So, the manager has an “interactive process” meeting with Victoria, tells her that the breaks cannot be accommodated, but gives her the good news that she can go out on unpaid FMLA leave for 12 weeks. Is this

1. Legal
2. Illegal

ANSWER: B. The PWFA specifically says that an employer cannot require a pregnant employee to take a leave of absence as an accommodation if the employee can be accommodated on the job. Courts are unlikely to believe that an employer couldn’t manage to give a pregnant employee two 15-minute sitting breaks per eight-hour shift.

Note:

WorkSaver System provides physical abilities testing for new and existing employees that is in full compliance with the PWFA , ADA, ADEA Title VII, and all other anti-discriminatory regulations. Need assistance or have questions regarding the PWFA? Call WorkSaver Systems at (985) 853-2214 or e-mail Trevor Bardarson, CEO, at trevor@worksaversystems.com

Also, please visit our web site at www.worksaversystems.com

Questions about this quiz or other aspects of the PWFA? Contact Robin Shea at the national law firm, Constangy Brooks Smith & Prophete LLP at https://www.constangy.com