In April, the U.S. Equal Employment Opportunity Commission (EEOC) released two long-awaited final documents aimed at strengthening worker protections: the final rule implementing the Pregnant Workers Fairness Act (PWFA, or the Act), which go into effect on June 18, 2024, and the agency’s Enforcement Guidance on Harassment in the Workplace. The final PWFA rule expounds on the obligations of the Act, which requires employers to provide pregnant workers with access to reasonable accommodations. Meanwhile, the new enforcement guidance on harassment updates EEOC guidelines to address recent developments such as online harassment in the remote work era and the 2020 Supreme Court decision Bostock v. Clayton County. Employers should ensure that their policies and procedures comply with the new PWFA regulations and updated EEOC guidance on workplace harassment.
Final Rule on the Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act, which went into effect June 2023, requires both public and private employers with 15 or more employees to provide reasonable accommodations for known limitations of an employee (including former and prospective employees, where relevant) related to pregnancy, childbirth, or related medical conditions, absent undue hardship to the operation of the employer’s business. Additionally, the PWFA provides a right to sue under the Act. The EEOC released proposed regulations for the PWFA in August 2023. (See our earlier alerts on the Act and the proposed regulations here and here.)
The final rule and interpretive guidance, published on April 15, 2024, provides an expansive definition of “pregnancy, childbirth, or related medical conditions” that includes, but is not limited to, current, past, potential, or intended pregnancy; termination of pregnancy, including miscarriage and abortion; postpartum depression; and lactation conditions. Time for bonding or childcare, however, is not covered by the PWFA. The condition does not need to meet the definition of disability in the ADA—i.e., the employee does not need to have an impairment that “substantially” limits a major life activity. The guidance notes, however, that if the limitation is covered by the ADA, the employee may be entitled to accommodations under both the ADA and PWFA.
There are certain requirements for employees to receive an accommodation under the PWFA. The employee or their representative, who may be a family member, friend, union representative, health care provider, or legal guardian, must (1) communicate the limitation to their employer and (2) request reasonable accommodation. No specific word or phrase (such as reference to the PWFA) is required to trigger the benefits under the Act.
Whether an accommodation is appropriate should be determined on a case-by-case basis. For example, employers are not required to provide modifications that are primarily for the employee’s personal use, such as a pregnancy pillow for an employee who is having trouble sleeping at home. However, if the employer is providing pillows to all employees who are required to sleep on-site and a pregnant employee needs a modification, a pregnancy pillow may be a reasonable accommodation. If an employer asserts that a reasonable accommodation will cause undue hardship, the employer must show that the accommodation would be “unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.” The guidelines state that an employer who claims undue hardship must offer other reasonable accommodation(s) that would not cause the employer undue hardship.
While PWFA itself garnered wide bipartisan support, the EEOC’s proposed rule generated controversy among conservative groups and lawmakers due to its inclusion of abortion as a “related condition” covered by the Act, consistent with previous agency and court rulings of Title VII—an interpretation that has been kept intact in the final rule. The final rule’s Preamble asserts that this interpretation does not conflict with state laws, that neither the PWFA nor the final rule requires an employer to pay for an abortion (or any other procedure or treatment), and that an abortion-related accommodation under the PWFA will likely concern only a request for leave. Nevertheless, a group of 17 Republican attorneys general sued the EEOC days after the final rule was published, arguing that the EEOC’s position that the PWFA requires employers to provide reasonable accommodations for abortion was unlawful and unconstitutional. We will continue to monitor legal challenges to the final rule and provide updates as needed.
EEOC Enforcement Guidance on Workplace Harassment
On April 29, 2024, the EEOC released the final version of its revised Enforcement Guidance on Harassment in the Workplace. The guidance, which addresses workplace harassment under Title VII and other federal statutes as well as employer liability, replaces older EEOC documents with new guidance that incorporates legal findings and insights from the #MeToo movement against sexual harassment, the COVID era of remote work and concomitant surge in online harassment, and the Supreme Court’s Bostock decision, which held that Title VII protects workers from discrimination based on sexual orientation and gender identity.
The EEOC guidance document covers three essential parts of a harassment claim: (1) covered bases and causation (whether the harassing conduct is based on an individual’s legally protected characteristic); (2) discrimination (whether the harassing conduct resulted in discrimination with respect to a term, condition, or privilege of employment); and (3) liability (whether there is a basis for holding an employer liable for the harassing conduct). For workplace harassment to violate federal law, the harassment must be based on a protected characteristic and affect a term, condition, or privilege of employment. Whether—and to what degree—an employer is held liable for a harasser’s conduct depends on the role of the harasser.
In the new guidance, the EEOC updates the definition of “sex” under Title VII to cover sexual orientation and gender identity, including gender expression. Examples of such harassment on the bases of sexual orientation and gender identity include: epithets regarding sexual orientation or gender identity; outing an individual without their permission; harassing conduct because an individual does not present in a stereotypical manner; repeated and intentional name or pronoun misgendering; denial of access to bathrooms or facilities consistent with the individual’s gender identity; and intrusive questions about someone’s sexual orientation, gender identity, gender transition, or intimate body parts.
The EEOC also discusses issues such as harassment based on a mistaken perception that an individual has a protected characteristic; harassment against an individual because of their association with someone else in a protected class; intraclass harassment based on a protected characteristic that is shared by both the complainant and the harasser; intersectional harassment based on two or more protected characteristics; and systemic harassment. The guidance clarifies that if an employee experiences workplace harassment but the evidence does not show that the harassment was based on a protected characteristic, the EEOC statutes do not apply (though the employer’s misconduct policy may be broader).
With respect to discrimination, the EEOC emphasizes that, for a hostile work environment to rise to the level of unlawful harassment under Title VII, the conduct must be severe or pervasive enough to create an objectively and subjectively hostile work environment. The updated guidance addresses conduct that occurs in a work-related context outside of a regular place of work, including virtual work environments such as emails, group chats, video meetings, and official social media accounts. The EEOC clarifies that conduct that occurs in a non-work-related context (such as personal social media) may have an impact on the workplace that amounts to a hostile work environment—such a determination must be made on a case-by-case basis.
Finally, the guidance addresses standards for employer liability for workplace harassment. The EEOC states that an employer is automatically liable for unlawful harassment if the harasser is an alter ego or proxy of the employer. If the harasser is a supervisor, the employer may be vicariously liable, though the employer may have an affirmative defense if (1) the supervisor did not take a tangible employment action against the complainant, (2) the employer acted reasonably to prevent and promptly correct the harassment, and (3) the complainant unreasonably failed to use the employer’s complaint procedure or take other mitigating steps. If the harasser is any other person than a proxy, alter ego, or supervisor, the employer is only liable for the hostile work environment caused by the harasser’s conduct if the employer was negligent, i.e., failed to act reasonably to prevent harassment or take reasonable corrective action when the employer was aware, or should have been aware, of the misconduct.
Note that, while the new guidance applies to the EEOC’s enforcement of federal anti-discrimination laws, different standards may apply under state and local laws. Employers should be mindful of these differences and follow the guidance appropriate for the jurisdictions in which they operate.
