New laws protecting pregnant and nursing mothers: Time to update employee handbooks

Two federal laws enacted in December—the Pregnant Workers Fairness Act and the PUMP Act—place new requirements on employers to accommodate pregnant and nursing mothers in the workplace, including, for the first time, many exempt employees.

Related: DOL is enforcing new PUMP Act for breastfeeding workers

“The reason why this legislation is so monumental,” said Melinda Koster, a partner at Sanford Heisler Sharp and a co-chair of the firm’s discrimination and harassment practice group, “is that, up until it was passed at the end of last year, there had been no federal legislation requiring employers to provide pregnant workers with accommodations related to pregnancy. Title VII and the Pregnancy Discrimination Act did not require employers to take affirmative steps to accommodate pregnant women.”

Koster said these new laws are unlikely to form the basis for causes of action on their own—but they may be added to broader lawsuits alleging problematic workplace cultures.

And problematic workplace cultures are, unfortunately, not uncommon in the tech industry.

In July of last year, for example, a Los Angeles Superior Court judge granted preliminary approval of a landmark, $100 million settlement to resolve claims brought by California’s Civil Rights’ Department against Riot Games for “systemic sex discrimination and harassment.”

In that case, Riot employees filed a class action and entered a proposed $10 million settlement. But the CRD and California Division of Labor Standards Enforcement Riot successfully intervened in the interests of the state and the women workers and obtained a $100 million consent decree that will also settle the private plaintiffs’ class action against Riot.

In a separate case, another video game-maker, Activision Blizzard, settled with the Equal Employment Opportunity Commission, but litigation is ongoing with the CRD, which has alleged that “workers employed by the Activision Defendants worked in an environment that was akin to working in a ‘frat house,’ which invariably involved male employees drinking and subjecting female employees and contingent or temporary workers to sexual harassment, with little to no repercussions for the male employees.”

The complaint further alleged that, “as a product of this ‘frat boy’ culture, women were subjected to numerous sexual comments and advances, groping and unwanted physical touching, and other forms of harassment.”

Before that, Google found itself entangled in a controversy over its alleged treatment of pregnant workers.

Chelsey Glasson, a former Google employee resigned at the end of her maternity leave in 2019 and issued a memo on an internal Google message board titled “I’m Not Returning to Google After Maternity Leave, and Here is Why.” Glasson, a Seattle-based employee, claimed that her career suffered when she stood up for a pregnant co-worker and then suffered retaliation and discrimination after she became pregnant, according to a report in the Seattle Times.

“Pregnancy discrimination is sadly an issue that many families face,” said Glasson in a Go Fund Me page statement. “I myself experienced and witnessed pregnancy discrimination at Google, and then was retaliated against for reporting the discrimination.”

In February 2022, Glasson reached an undisclosed settlement with Google.

Expanded protections

The PUMP Act, signed into law on Dec. 29, 2022, made several important changes to 2010′s Break Time for Nursing Mothers law, which required employers to provide reasonable break time and a private, nonbathroom space for breastfeeding employees to pump during the workday. The new law expands the number of working mothers covered to include salaried employees and other types of workers not covered under previously existing law.

The PWFA, signed into law alongside the PUMP Act and set to take effect June 27, applies to companies with 15 or more employees and requires them to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions and aligns with the Americans with Disabilities Act.

Koster stated that the Break Time for Nursing Mothers Act excluded roughly nine million workers who would potentially need lactation accommodations.

“Federal legislation in connection with the Affordable Care Act created a federal protection for certain workers,” Koster said. “Nonexempt employees had break time and a space to pump. Essentially, this was the ‘break time for nursing mothers’ provision in the Fair Labor Standards Act. I think in many ways this was an oversight that narrowed the availability of a lactation accommodation at the federal level to only nonexempt employees.”

Koster said the PUMP Act seeks to remedy that oversight while establishing real consequences for employers that fail to provide the required accommodations.

“I have represented employees who have been denied lactation accommodations, or if they have been provided the accommodation, they have been subjected to stigmatizing comments,” Koster said. “I would say that the cases where an employee has been denied a lactation accommodation, that denial has been part of a larger pattern of hostility toward caregivers and pregnant women.”

“I have seen situations where there is a pumping option in principle, but in practice employers have erected many obstacles to make that happen,” Koster said.

Under state law, however, there has traditionally been little recourse for employees.

Koster pointed to a 2021 study conducted by the Center for WorkLife Law at the University of California, Hastings Law, that examined the likelihood of employers being sued in jurisdictions with privately enforceable break time and space laws. The results found that, in those jurisdictions—Hawaii, Minnesota, Vermont and Washington, D.C.—a business owner was more than 25 times more likely to be struck by lightning than to be sued under an enforceable lactation break time and space law.

That probability was clocked at 0.0002%—so essentially zero. According to the study, the research found that only six lawsuits were filed against employers in all four jurisdictions in the combined 47 years the laws had been in effect, and 100% of those suits were brought by employees who alleged actual economic damages like job loss.

The PWFA and the ADA

The Pregnant Workers Fairness Act, according to observers, is modeled after the Americans with Disabilities Act and requires employers to make reasonable accommodations for qualified employees affected by pregnancy, childbirth or related medical conditions.

Anne Yuengert, a partner with Bradley Arant Boult Cummings in Birmingham, Alabama, assists her clients in employee management, including assessing reasonable accommodations for disabilities and working through issues stemming from the Family and Medical Leave Act and Uniformed Services Employment and Reemployment Rights Act.

“The biggest concern” with the PWA, Yuengert said, “is that it tracks with the ADA, which states that you have to provide a reasonable accommodation to an employee or an applicant with a disability. Under the ADA, you never have to remove an essential function that is not a reasonable accommodation.”

“It will be interesting to see where this is headed,” said Yuengert. “I have been very focused on the Equal Opportunity Employment Commission’s announcements because they will be the ones to take charges and will probably be the ones to release guidance.”

But Koster said that, for employers who already conscientiously follow the ADA, there is a helpful framework in place that can be applied to pregnant employees. Employers can go through a similar “interactive process” with pregnant employees, Koster said, but should be careful not to engage in “benevolent stereotyping.”

“Employers should update their handbooks,” said Koster. “They should train managers to understand, that as a result of this legislation, employee managers are required to engage in an interactive process. And that does not mean going up to pregnant women and foisting change upon them.”

For example, Koster said, “[i]t would be punitive to automatically assign a pregnant employee to a reduced work schedule or to take them off business travel. In situations in which there is a known limitation, there is supposed to be an interactive process.”