What Texas Employers Should Know After PWFA Ruling

This article was written for Law360.

A federal judge in the U.S. District Court for the Northern District of Texas placed constraints on the enforcement of the Pregnant Workers Fairness Act, or PWFA, citing a violation of the U.S. Constitution's quorum requirements.

U.S. District Judge James Wesley Hendrix enjoined federal agencies from enforcing the PWFA against the state of Texas and its divisions and agencies. The judge's order went into effect on March 5.

The PWFA was passed by Congress in late 2022 as part of the Consolidated Appropriations Act to provide reasonable accommodations to a worker's known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. The U.S. Equal Employment Opportunity Commission began accepting charges under the PWFA on June 27, 2023.

In ruling in favor of the state, the court determined that Texas had standing to challenge the PWFA, as the state is directly injured the costs of compliance, litigation and administrative investigations created by the PWFA, among other reasons.

The court found that it could redress the state's harms by enjoining the enforcement of the statute. The court ordered that moving forward when the U.S. Department of Justice, the EEOC and other federal agencies receive a PWFA charge against Texas or its divisions and agencies, they must inform the claimant in writing that, because of the court's injunction, the agencies cannot process, investigate or issue a right-to-sue letter for the charge.

The court's order covers over 900 Texas state agencies and divisions, including universities, such as the state attorney general, the Department of Agriculture, the Department of Public Safety, the Health and Human Services Commission, the House of Representatives, Texas A&M University, University of Texas at Austin, the Texas Medical Board and the Texas Alcoholic Beverage Commission.[1] 

On March 6, the EEOC and the DOJ filed a notice of compliance affirming adherence to the injunction and the implementation of measures to prevent the acceptance of PWFA charges against Texas and its divisions and agencies.

Polarizing Political Perspectives on the PWFA

The EEOC released proposed regulations implementing the PWFA on Aug. 7, 2023, and requested public comments by Oct. 10, 2023. The EEOC received more than 100,000 public comments.[2]

The White House Office of Information and Regulatory Affairs received the text of the final regulations for review on Dec. 27, 2023, and concluded its review on Jan. 31, 2024.

Pursuant to Executive Order 12866, the OIRA also received comments and meeting requests regarding its review of the PWFA. A meeting was held March 12. The proposed regulations are now in the final rule stage. The EEOC's next step is publishing the regulations in the Federal Register, although there is no clear timeline for the publication.

The proposed regulations stirred controversy due to the inclusion of abortion as a pregnancy-related medical condition. The PWFA passed to provide reasonable accommodations to a worker's known limitations related to pregnancy, childbirth or related medical conditions.

The proposed regulations include a broad definition of "pregnancy, childbirth or related medical conditions," which includes current, past and potential pregnancy, lactation — including breastfeeding and pumping — use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.

A review of the public comments suggests that the development of and opposition to the PWFA was influenced by the prevailing political climate, heightened by the ongoing election year.

For example, public comments in favor applaud the EEOC's support of a woman's personal choice while comments in opposition allege that the EEOC is pushing the political agenda of the current administration and disregarding the legislative intent of the PWFA, which was not to promote abortion.

The polarized public comments, reflecting diverse perspectives on women's reproductive choices and political motivations, further complicate the regulatory landscape and foreshadow additional challenges to the PWFA. Judge Hendrix's ruling is likely to be used as precedent to seek injunctions on the PWFA in other jurisdictions.

The Landscape for Texas Employers

While challenges to the constitutionality of the PWFA are anticipated, the practical impact on private employers in Texas remains unaltered because Judge Hendrix's ruling does not apply to private employers. The ruling is limited to the PWFA and the application of the PWFA against the state of Texas.

Consequently, private employers in Texas should continue to comply with the PWFA and accommodate employees according to the EEOC's proposed regulations implementing the PWFA, recognizing that the regulations lack authoritative status until finalized.

The ongoing debates surrounding the PWFA underscore the complexity and sensitivity of issues related to pregnancy discrimination in the workplace. Employers are advised to maintain heightened awareness to mitigate risks, ensuring continued compliance and avoidance of legal exposure.

Additionally, the ruling does not affect the rights and protections that pregnant workers may be entitled to under various local, state or federal laws. The following pregnancy-related protections are still in effect for covered employers, including the state of Texas and its divisions and agencies, despite the injunction on the enforcement of PWFA against the state.

Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, prohibits sex discrimination, including pregnancy discrimination. Pregnancy discrimination under Title VII can be based on:

• • Current or past pregnancies;
  • Potential or intended pregnancies;
  • Other medical condition related to pregnancy or childbirth;
  • Having or choosing not to have an abortion; and
  • Birth control.

Title VII mandates that employers treat pregnant employees in the same way as other employees with similar abilities or limitations, ensuring equal employment opportunities, benefits and protection against discrimination.

Employers may have to provide pregnant workers accommodation under the PDA if the employer provides accommodations to employees with similar limitations not caused by pregnancy.

Employers may also have to provide workers with reasonable accommodation for a pregnancy-related disability pursuant to the Americans with Disabilities Act.

The ADA requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer.

While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law. Examples include gestational diabetes, preeclampsia and hyperemesis gravidarum.

The Fair Labor Standards Act and the Providing Urgent Maternal Protections for Nursing Mothers Act grant most employees the right to take reasonable breaks to express breast milk for up to one year after childbirth. Covered employers must provide nursing employees a private, nonbathroom space that is shielded from view and free from intrusion.

Under the Family and Medical Leave Act, covered workers can receive up to 12 weeks of job-protected unpaid leave for, among other things, a serious health condition, the birth of a child and bonding with a newborn within one year of birth. Employees may also qualify for intermittent leave or a reduced schedule through the FMLA if medically necessary.

In addition to the federal laws, the Texas Commission on Human Rights Act prohibits employment discrimination on the basis of sex, which explicitly includes pregnancy, childbirth or a related medical condition.

This includes failure or refusal to hire, discharge or discriminate with regard to the terms, conditions or privileges of employment, or to limit, segregate or classify an employee in such a manner that would deprive the individual of employment opportunities.

Employers must treat covered employees the same as any other employee who is temporarily disabled and reasonably accommodate covered employees as the employer would employees with disabilities.

Texas Government Code Chapter 619 supports the PUMP Act and requires accommodations from all public employers in Texas, including state, county, or city governmental institutions, public universities and school districts.

Public employees have the right to express or pump milk while at work. Covered employers must offer break time and reasonable accommodations for expressing milk following childbirth. Employers are prohibited from discriminating against employees who exercise this right.

Additionally, under Texas law, employees have the right to breastfeed their child in any public or private location. Pregnant employees may also be eligible for the Unemployment Benefits Program, an employer-paid program that provides temporary, partial income replacement to eligible workers who, through no fault of their own, lost their job or are working reduced hours.

The court's PWFA injunction also does not affect local laws. Under Government Code Chapter 180, a municipal or county office, department, division, program, commission, bureau, board, committee or similar entity must make reasonable efforts to accommodate an employee who is partially physically restricted by a pregnancy.

If the employee is unable to perform their permanent work assignment due to pregnancy and a temporary work assignment is available in the same office, the office supervisor who is responsible for personnel decisions shall assign the employee to the temporary work assignment.

By way of example, the city of Sunset Valley has a policy requiring the city to provide city employees with a private space other than a bathroom to express milk.

Sunset Valley's policy surpasses federal mandates, delineating standards for lactation spaces, including a secure door, electrical outlet, a clean work surface, comfortable seating and access to a sink.

The city of San Antonio has a similar policy, Administrative Directive 4.15, applying to all breastfeeding public employees — from part-time interns to full-time employees — and mandating accessible, adequate, and private facilities other than a bathroom for pumping at work.

Conclusion

The recent judicial intervention affecting the PWFA in Texas has added a layer of complexity to the evolving landscape and discourse of pregnancy-related workplace protections.

While the court's ruling affects federal agencies' ability to enforce the PWFA against Texas and its divisions and agencies, it is crucial to recognize that many other existing pregnancy protections remain intact. The preceding examination encompasses some but not all federal, state and local laws that may offer protections to pregnant workers.

While the PWFA's future remains entwined with the current political climate, the ongoing debates have illustrated the nuanced nature of pregnancy discrimination issues.

Texas employers must remain sensitive to claims of pregnancy discrimination and proactive in their approach to pregnancy-related accommodations.

Employers should carefully craft and follow their policies to comply with applicable federal, state and local law, not political considerations.