July 23, 2025
Does the PWFA Discriminate Against Men?
This is a question I have asked since the Pregnant Workers’ Fairness Act was legislation. Take a recent case as an example. During an employee’s orientation, she told her new employer that she is pregnant. During her probationary period, she incurred absences related to pregnancy-related conditions such as nausea, swelling in her feet, aching joints, and doctor’s appointments. The employer had a policy that if an employee incurs more than two absences during the probationary period, the employee will be subject to termination.
The employee gave her employer’s occupational health nurse a doctor’s note restricting her to work no more than 40 hours per week and asked HR to not count her pregnancy-related absences as “points” against her. Her job on the production line regularly required all employees on that line to work more than 40 hours per week and HR denied her requests. The employee quit after her supervisor told her that if she incurred one more absence she would be fired.
On July 23, 2025, the EEOC announced the employer settled the case for $55,000.
Now, let’s spin the fact pattern. What if this was a male employee with a broken leg who incurred periodic absences due comparable conditions related to his medical condition – swelling in his foot, aching leg, and doctor’s appointments? Assuming neither condition – the pregnancy or the broken leg – is a disability under the Americans with Disabilities Act (ADA), the PWFA requires the employer to provide a reasonable accommodation to the female employee but not the male employee, both of whom have a short-term medical condition. Having said that, consider the following to ensure you comply with the PWFA.
Lessons Learned.
- Remember! The PWFA is broader than the ADA. A female is protected even if she cannot perform the essential functions of the job with or without a reasonable accommodation. The EEOC reminds us, “To the extent the Charging Party could not perform an essential function of the job, she was qualified because the inability to perform that function was for a temporary period…”
- The court notes that four (4) minutes after the occupational health nurse emailed HR about the doctor’s note, HR replied, “We cannot accommodate this restriction as overtime is an essential function of the position.” This looks like HR failed to engage in an “interactive dialogue” as required by the PWFA. Oops.
- The employee correctly pointed out in a letter to HR that there was an overflow of employees working in the same line and the employer would have to find coverage while she was out on maternity leave. So, “what undue hardship would me working only 40 hours be for our company of over 2000 employees?” HR did not reply to her inquiry. Once again, no interactive dialogue. Oops.
- The employer’s HR manager and HR specialist were involved in communications with this employee about her request for reasonable accommodation. Ensure that not only are your managers trained in the PWFA, ADA, and other employment laws but your entire HR team, too!
