by Kody Condos and Leslie Perkins

Today, June 18, 2024, marks the effective date of the Pregnant Worker’s Fairness Act (“PWFA”) Final Rule, which is now effective in 48 states. The path to implementing the PWFA has been fraught with lawsuits, culminating in this week’s starkly opposing court decisions.

Leslie Perkins

Kody Condos

First, U.S. District Judge D. P. Marshall Jr. (Arkansas) dismissed a motion for preliminary injunction filed in April by attorneys general from 18 states against the Equal Employment Opportunity Commission challenging the provisions of the PWFA related to employers being required to provide reasonable accommodations for employees seeking elective abortions. Judge Marshall held the attorneys general lacked standing to sue and that the states could not show a likelihood of irreparable harm, an element required for a preliminary injunction to be successful. Because of the lack of standing and failure to meet a required element of a preliminary injunction, the Court denied the preliminary injunction as moot and ordered dismissal of the Complaint without prejudice. Read more >>

by JT Washington

JT Washington

The U.S. Equal Employment Opportunity Commission (the “EEOC”) issued a final regulation to implement the Pregnant Workers Fairness Act (“PWFA”). The regulation goes into effect on June 18, 2024. The PWFA initially went into effect on June 27, 2023.  A primary objective of the law is to allow pregnant employees to continue working as long as they are capable, benefitting both the employees and their employers. The PWFA requires covered employers to make affirmative efforts to provide “reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee” unless the accommodation would impose an undue hardship. “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. The PWFA also prohibits employers from:

• Requiring an employee to accept an accommodation without a discussion between the employee and the employer about the accommodation;
• Denying employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Requiring an employee to take leave, paid or unpaid, if another reasonable accommodation can be provided to the employee;
• Taking adverse action in terms, conditions, or privileges of employment against an employee because the employee requested or used a reasonable accommodation;
• Retaliating against an employee who opposed any unlawful act or practice under the PWFA or because an employee made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing under the PWFA; or
• Coercing, intimidating, threatening, or interfering with any individual’s rights under the PWFA.

Read more >>

Kody Condos

by Kody Condos and JT Washington

The Pregnant Workers Fairness Act (PWFA), the newest member of the family of federal anti-discrimination laws, is almost one year old! Instead of inviting employers over for cake and photo ops, after one year of accepting charges of discrimination under the law, the U.S. Equal Employment Opportunity Commission’s (EEOC) has gifted employers with its interpretive guidelines instead. If you do not know them already, keep reading. The PWFA differs from other anti-discrimination laws in some very important ways that employers will want, and need to understand.

JT Washington

The PWFA went into effect on June 27, 2023. The EEOC’s regulations governing the PWFA go into effect on June 18, 2024. Like the Americans with Disability Act (ADA), the PWFA requires covered employers to provide qualifying employees and applicants accommodations to perform their work duties safely and without discrimination or retaliation.

This post covers key provisions of the PWFA and the EEOC’s regulations governing the law. Read more >>

Mark Wiletsky

by Mark Wiletsky

Can an employee sue under Title VII to challenge a lateral transfer, even if the transfer does not result in a loss of pay?  According to a recent U.S. Supreme Court decision, the answer is: Yes. Employers transfer employees, or take other actions, for a variety of reasons.  Until recently, so long as those decisions did not significantly or materially impact the employee’s terms and conditions of employment, the employee did not have a viable discrimination claim.  That standard is no longer the law of the land.  Now, if there was “some harm” as a result of a transfer or other action, and the action was based on an employee’s protected characteristic, the employee can assert a discrimination claim.

Factual Background. From 2008 through 2017, Sergeant Jatonya Clayborn Muldrow worked in a coveted position in the specialized Intelligence Division of the St. Louis Police Department. In 2017, her new commander sought to replace her with a male officer.  The new commander did not fire her; instead, he transferred Muldrow to a uniformed role in another department. Although her rank and pay remained unaltered, the responsibilities, privileges, and schedule of her new position significantly differed from her previous role. In Muldrow’s original role, she worked in a “premier position” with high-ranking officials on department priorities in the Intelligence Division.  Her new role, she claimed, was less prestigious or focused more on administrative tasks.  Muldrow supervised day-to-day activities of neigh­borhood patrol officers, including approving their arrests, reviewing their reports, and handling other administrative matters; she even did some patrol work her­self. As a result of the transfer, Muldrow lost her FBI status and the car that came with it, and she went from a regular Monday through Friday schedule to working a “rotating schedule,” including weekend shifts. Read more >>

Leslie Perkins

by Leslie Perkins

When you think of protections against discrimination in the workplace, the first things that come to mind are traditional characteristics such as race, color, religion, sex, national origin, age, and disability. However, in the coming years we could see discrimination based on weight added to that list.

Current Measures Against Body Discrimination

Currently, there is no federal law protecting employees from discrimination based on weight. However, one state (and a handful of cities) have implemented statutes that ban discrimination based on weight to ensure that people of all sizes and heights are given equal access to employment and, in some instances, housing. Read more >>

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

Answer: The short answer is: Maybe.  Employers must reasonably accommodate employees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship.  For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden.  In June 2023, however, the U.S. Supreme Court “clarified” that standard.  In Groff v. DeJoy, the Supreme Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.”  The Equal Employment Opportunity Commission (EEOC) has provided similar guidance, stating that employers should not try to suppress all religious expression in the workplace. Read more >>

Laurie Rogers

by Laurie Rogers

Pregnant workers have certain protections under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but gaps remain. The Pregnant Workers Fairness Act (PWFA) aims to close the gaps and better protect pregnant employees. To implement the Act, the Equal Employment Opportunity Commission (EEOC) recently proposed regulations that significantly increase employers’ obligations to reasonably accommodate their pregnant employees.

Expanded protections

On August 11, 2023, the EEOC proposed rules to implement the PWFA, a law that took effect on June 27, 2023. Before the PWFA, the PDA (which amended Title VII of the Civil Rights Act of 1964) and the ADA provided pregnant and postpartum applicants and employees with certain limited protections.

Under the PDA, pregnant workers can show a violation only if they can identify similarly situated employees who received an accommodation or if there is direct evidence of disparate treatment. Under the ADA, pregnant employees have a right to an accommodation only if they can demonstrate they have a pregnancy-related disability, which doesn’t include the pregnancy itself. Read more >>

Laurie Rogers

by Laurie Rogers

As transgender employees become more comfortable living openly as their authentic selves in the workplace, employers should be prepared to work with transitioning employees. Consider putting a plan in place that fosters an inclusive work environment and guards against discrimination based on gender identity and expression. This plan should include communicating with transitioning employees, educating your workforce, and creating clear policies addressing the rights and needs of transgender and gender nonconforming employees.

Communication

You should create an accepting work environment that invites employees to speak openly with HR or management. Inviting open communication directly with company leadership allows you to address concerns before they escalate.

When a transitioning employee comes to you, work with them on their anticipated transition timeline, including whether and how they want their coworkers to learn about the transition. Encourage self-identification of pronouns and acknowledge and allow name and/or pronoun changes within your HR systems, regardless of whether the employee has legally changed their name. Assure the transitioning employee that they may dress in a manner that corresponds with their gender expression or identity, and they are permitted to use bathrooms and locker rooms that align with their gender identity. Read more >>