By J. Tyler Mayhew, Esq. and Jennifer B. Hagedorn, Esq.

Employers need to be aware two new developments in federal anti-discrimination laws that affect accommodation of employees with pregnancy related conditions and what constitutes an “adverse employment action” under Title VII. This Employer e-Alert is focused on the EEOC’s final rule implementing the Pregnant Workers Fairness Act and the United States Supreme Court’s recent decision in Muldrow v. City of St. Louis, which clarifies the types of adverse employment actions that give rise to a discrimination claim under Title VII.

Pregnant Workers Fairness Act (“PWFA”)
On Friday, April 19, 2024, the Equal Employment Opportunity Commission (the “EEOC”) published its final rule and interpretive guidance “Implementation of the Pregnant Workers Fairness Act”, which will take effect on June 18, 2024. Since the PWFA went into effect on June 27, 2023, employers are likely already familiar with many of the requirements of the law, which aligns with Title VII and the Americans with Disabilities Act (the “ADA”) prohibiting discrimination and retaliation against pregnant workers and requiring employers to make reasonable accommodations for those workers.

However, there are several new areas that we are highlighting for employers that may not be common knowledge and should be carefully considered when dealing with those individuals protected by the PWFA. First the term “conditions related to pregnancy” is broadly defined to include current pregnancy, past pregnancy, infertility and fertility treatments, use of contraception, lactation (including breastfeeding, pumping and issues related to lactation), menstruation, postpartum depression and anxiety, gestational diabetes, high blood pressure, carpel tunnel syndrome, preeclampsia, incontinence, endometriosis, miscarriage, stillbirth, and abortion, among other conditions. Employees are covered by the PWFA if they have a “known limitation” related to any of these conditions. Per the final rule, this “known limitation” can be “modest, minor and/or episodic”. The physical or mental condition must be a condition of the employee themselves.

Additionally, the PWFA has two definitions of “qualified”. Using language from the ADA, the PWFA states that “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position” is qualified and therefore protected under the act. Second, an employee can be “qualified” even if they cannot perform one or more essential functions of the job if the inability to perform the essential function(s) is “temporary,” the employee could perform the essential function(s) “in the near future,” and the inability to perform the essential function(s) can be reasonably accommodated. The terms “temporary,” “in the near future,” and “can be reasonably accommodated” are not defined in the statute. However, the final rule defines “temporary” as lasting for a limited time, not permanent, and may extend beyond “in the near future.” Additionally, if the employee is pregnant, it is assumed that the employee could perform the essential function(s) “in the near future” because they could perform the essential functions within generally 40 weeks of the temporary suspension of the essential function. The final rule’s definition in this section does not mean that the essential function or functions of a pregnant employee must always be suspended for 40 weeks, or that if a pregnant employee seeks the temporary suspension of an essential function or functions for 40 weeks, it must be automatically granted. In the final rule, whether the employee could perform the essential function or functions “in the near future” in situations other than when the employee is pregnant is determined on a case-by-case basis.

The final rule also addresses “reasonable accommodation” and how employees can request one. There are four accommodations that will likely be deemed reasonable in virtually all cases as not imposing an undue hardship. Those accommodations, deemed “predictable assessments,” are additional restroom breaks, food/drink breaks, allowing water and other drinks to be kept nearby, and allowing sitting or standing as necessary. Other potential accommodations are listed in the final rule as follows: frequent breaks; sitting/standing; schedule changes, part-time work, and paid and unpaid leave; telework; parking; light duty; making existing facilities accessible or modifying the work environment; job restructuring; temporarily suspending one or more essential functions; acquiring or modifying equipment, uniforms, or devices; and adjusting or modifying examinations or policies. The EEOC confirmed in the final rule that employers are required to engage with the employee in an interactive process to determine limitations and possible reasonable accommodations. Employees are not required to use specific words or use a specific format to request an accommodation and this should be a “simple process” according to the EEOC.

In order to prepare for the final effective date of June 18, 2024, employers are encouraged to review the “Implementation of the Pregnant Workers Fairness Act” linked here and consult with legal counsel regarding their current policies and procedures on reasonable accommodation.

Adverse Action Standard under Title VII - Muldrow v. City of St. Louis
On April 17, 2024, the United States Supreme Court issued its decision in the employment discrimination case of Muldrow v. City of St. Louis, No. 22-193. The Court’s opinion clarifies the adverse employment action standard under Title VII of the Civil Rights Act of 1964, the statute that prohibits employment discrimination on account of race, color, religion, sex (including sexual orientation and gender identity), and national origin. In this case, a sergeant with the St. Louis Police Department, Jatonya Muldrow, was involuntarily transferred from one division to another within the police department. According to allegations in her complaint, a new supervisor requested that Plaintiff Muldrow be transferred out of the Intelligence Division and be reassigned to a uniformed position. While her rank and compensation did not change after the transfer, she alleges that her responsibilities, perks and schedule were all adversely impacted. Alleging that she was transferred over her objections based on her gender, she filed suit against the City of St. Louis. The trial court granted summary judgment in favor of the City of St. Louis and Plaintiff Muldrow’s case was dismissed. On appeal, the Eighth Circuit Court of Appeals declined to find her claims that the transfer led to altered scheduling and responsibilities were “significant” enough to “constitute an adverse employment action.”

However, the United States Supreme Court disagreed based on the plain text of the statute, and reversed the decision of the Eighth Circuit and remanded the case so that the trial court can apply the correct legal standard. In its opinion, the Supreme Court found that “there is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm.” Justice Kagan, who wrote the opinion for the Court, opened by stating that under the plain language of Title VII, it is unlawful for an employer to “… fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” In determining that Muldrow did not have to show that the harm incurred was “significant” the Court found that to demand that she prove “significance” was adding words to a congressionally enacted statute and imposed “… a new requirement on a Title VII claimant. The takeaway from this case for employers is that an employee/plaintiff may not have to prove economic harm in order to prevail on a Title VII claim.

¹ The EEOC uses the term “covered entity” interchangeably with the term “employer” both of which include public and private employers with 15 or more employees, unions, employment agencies, and the Federal Government

For more information:
The Bowles Rice Labor and Employment Law Team is closely monitoring this and related issues and will continue to share important details as they evolve. If you have any questions or concerns on any of the foregoing issues or want to know more about how to stay in compliance in 2024 and beyond, please contact a member of our team.