October 6, 2023

Equal Employment Opportunity Commission
Attention: Raymond Windmiller
131 M Street NE
Washington, DC 20507
RIN No. 3046-AB30

RE: Independent Women’s Forum Comments on Proposed Regulations to Implement the Pregnant Workers Fairness Act

Dear Mr. Windmiller,

Independent Women’s Forum (IWF) appreciates the opportunity to comment on EEOC’s proposed regulations implementing the Pregnant Workers Fairness Act (PWFA). IWF is the leading national women’s organization dedicated to developing and advancing policies that are more than just well-intended, but enhance people’s freedom, opportunities, and well-being. As a 501(c)(3) non-profit organization, IWF works every day to engage and inform women about how policy issues impact them and their loved ones.

IWF is committed to advancing realistic, common-sense policy solutions that support women. No one wants pregnant women to have to endanger their own health or the health of their unborn child at work or to live in fear of discrimination by their employer. We all agree that pregnant women deserve protection against unfair discrimination and should be granted reasonable accommodations in the workplace. 

Good intentions, of course, are not enough. Policymakers designing programs to support women must pay attention to the fine print so as to maximize the program’s efficiency and minimize the potential for negative unintended consequences. To that end, IWF’s comments focus on identifying aspects of the proposed regulations that would benefit from additional scrutiny, tailoring, or clarity in order to make the final regulations as strong as possible.

  1. The NPRM’s economic analysis fails to fully consider the rule’s effect on small businesses.

IWF encourages EEOC to perform a more sophisticated analysis of the costs that the rule will impose on small businesses. IWF is particularly sensitive to the impact of regulations on small businesses because women-owned businesses tend to be smaller than those owned by men. The NPRM’s economic analysis currently estimates that the proposed rule would not have a significant economic impact on a substantial number of small businesses primarily based on the assumption that, in any given year, only a small percentage of workers at any business will need an accommodation under the PWFA. This analysis ignores a key factor: occupational segregation.

In the United States, occupational segregation has caused women to be clustered primarily in just a few occupations. Indeed, “nearly 6 in 10 women [are] employed in just three [industries] … : education and health; leisure and hospitality; and retail and wholesale trade.” In light of this segregation, EEOC cannot assume that women of reproductive age are evenly distributed across all small businesses. Consider a preschool with twenty-five employees, twenty of whom are women of reproductive age. That preschool likely will have continuous costs imposed by the proposed rule, even though it has just twenty-five employees. 

Compounding EEOC’s failure to take into account occupational segregation, its analysis also focuses solely on the “average” cost of each accommodation—which the EEOC calculates to be $60—in determining the impact of the rule on small businesses. But small businesses inherently face less predictable costs than major corporations, who benefit from the law of large numbers. Consequently, while the average cost may be $60 per accommodation, if one in twenty accommodations will lead to a budget-busting $1,000 expense, that could be fatal to many small businesses. The EEOC’s analysis of the rule’s impact on small businesses therefore must take into account the upper end of the range of the costs for various accommodations required by the rule and not just the average cost.

In order to appropriately consider the proposed rule’s impact on small businesses, the EEOC must adjust its analysis by taking into account the extent to which occupational segregation will contribute to the rule imposing substantially higher costs on small businesses that hire a disproportionately large number of women and by taking into account the full range of costs that the rule will impose on small businesses.

  1. Key provisions of the rule are overbroad.

IWF encourages EEOC to more narrowly tailor two key provisions of the rule to align it with congressional intent, minimize potential negative unintentional consequences, and safeguard it from constitutional challenges.

The EEOC’s broad definition of limitations “related” to pregnancy and “related” medical conditions

The PWFA requires employers to provide reasonable accommodations for “limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” The PWFA does not define what limitations might be “related” to pregnancy, childbirth, or a “related” medical condition. The proposed rule broadly construes these terms to include, among other things, “fertility treatment,” “endometriosis,” “menstrual cycles,” “use of birth control,” and “termination of pregnancy.”

The EEOC’s broad interpretation of limitations “related” to pregnancy and “related” medical conditions turns the PWFA into a general women’s healthcare statute. Employers would not only be required to accommodate limitations that are caused by pregnancy or childbirth but also all limitations that relate to any gynecological condition, including monthly menstruation. This broad interpretation of the PWFA defies congressional intent—which was laser-focused on helping pregnant women.

The EEOC defends its broad interpretation of the PWFA’s “related” language by noting that federal courts have broadly construed similar language in Title VII. Specifically, Title VII defines the phrase discrimination “because of sex” to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” In the context of Title VII, it makes sense to construe “related medical conditions” to mean any gynecological condition: The entire purpose of the definition is to make clear that employers cannot use female-specific medical conditions as a next-best proxy for discrimination against women. 

In the context of the PWFA, however, it makes no sense to construe “related” medical conditions to include any gynecological condition. Unlike with other terms employed by the PWFA, Congress did not identify Title VII as a body of law from which it was drawing in adopting the “related medical condition” language. And there is no indication in the legislative history that Congress understood itself to be passing legislation requiring accommodation for any gynecological condition, rather than just passing protections for pregnant workers. The act is titled the “Pregnant Workers Fairness Act,” after all. The “related” language in the PWFA plainly was intended to cover only medical conditions with a causal connection to an employee’s pregnancy or childbirth, such as gestational diabetes or gestational hypertension.

The EEOC’s broad interpretation of the PWFA’s “related” language also will subject the rule to constitutional challenges. By interpreting the rule to require reasonable accommodations of any gynecological condition—regardless of a causal connection to pregnancy or childbirth—the rule will be providing special protections for female employees that are not provided for male employees in analogous situations, violating the Equal Protection component of the Fifth Amendment. For example, the rule would provide special protection for women seeking infertility treatment or birth control but not men seeking the same. It similarly would provide special protection for employees with female gynecological conditions (e.g., endometriosis) but not employees with analogous male urological conditions (e.g., chronic urogenital pain).

Finally, by unnecessarily expanding the reach of the rule, the EEOC’s broad interpretation substantially increases the likelihood that the rule will have negative unintended consequences, such as the closure of some small businesses. Indeed, there is a mismatch between the proposed rule’s economic analysis and the breadth of the rule. The EEOC’s economic analysis depends on the assumption that only women who are pregnant or have just given birth may seek accommodations under the PWFA. The EEOC has not examined the potential costs of turning the PWFA into a general women’s healthcare statute. At a bare minimum, the EEOC must redo its economic analysis if it retains its broad interpretation of the PWFA’s “related” language.

Instead of the proposed rule’s overbroad interpretation of the PWFA’s “related” language, the EEOC should make clear that a limitation “related” to pregnancy, childbirth, or a “related” medical condition must have a causal connection to an employee’s pregnancy or childbirth. This narrower interpretation of the PWFA would align the rule with the purpose of the PWFA and congressional intent, match the EEOC’s own economic analysis, mitigate the potential unintentional negative consequences of the rule, and save the rule from a successful constitutional challenge.

The EEOC’s broad definition of “temporary” and “in the near future”

The PWFA defines “qualified employee” to include employees who cannot perform an essential function of their job so long “any inability to perform an essential function is for a temporary period,” “the essential function could be performed in the near future,” and “the inability to perform the essential function can be reasonably accommodated.” The PWFA does not define these terms, but the proposed rule construes them to mean generally forty weeks. The EEOC also specifies that the forty-week period can restart once the pregnancy is over and the employee returns to work, such that the employee can seek a new suspension of an essential function for up to forty weeks based on a postpartum condition.

The EEOC’s broad definition of “temporary” and “in the near future” is inconsistent with how these phrases have been interpreted in the context of the ADA—including judicial decisions specifically cited by Congress in its discussion of the PWFA’s definition of “qualified employee.” For example, courts have explained that requests for leave under the ADA must assure employers that the employee will be able to perform the essential functions of their job in the “near future,” and that “a six-month leave request [is] too long to be a reasonable accommodation.” Indeed, courts have rejected leave requests greater than two months. Courts also have been reluctant to accept arguments that multiple leave requests in close proximity are reasonable.

In light of this body of ADA caselaw—which Congress specifically cited in adopting the PWFA’s definition of “qualified employee”—the EEOC should interpret “temporary” and “in the near future” for purposes of the PWFA to mean less than two months. Additionally, the EEOC should make clear that a second request for the suspension of an essential function in close proximity to a prior request will receive more exacting scrutiny: An employee seeking multiple suspensions in close proximity “must, at a minimum, provide the employer with an estimated, credible date when she can resume her essential duties.”

IWF understands, however, that context matters. (That is why, for example, IWF explained above that blindly transferring Title VII caselaw to the PWFA is an ill-considered approach.) IWF therefore proposes that—solely for limitations that arise during pregnancy—an inability to perform an essential function is “temporary” and the essential function can be performed “in the near future” if a pregnant employee will be able to resume the function within six weeks of childbirth. This limited departure from the general standards discussed above is justified for two reasons. First, the purpose of the PWFA is to require reasonable accommodations during pregnancy, so it makes sense to construe “temporary” and “in the near future” to cover an entire pregnancy. Second, it is consistent with the pragmatic approach adopted by the ADA caselaw discussed above, which emphasizes the importance of employers knowing a credible date by which the limitation will end. From this practical perspective, limitations arising during pregnancy are sui generis—pregnancy always ends by a date certain and most women will be pregnant only a few times during their career.

Here is an illustration of how this alternative approach would work: A pregnant employee who cannot lift more than 20 pounds for the duration of her pregnancy will have a “temporary” inability to perform an essential function that she can resume “in the near future” because the limitation will cease within six weeks of childbirth. An employee seeking the suspension of an essential function due to postpartum migraines will have a “temporary” inability to perform an essential function that she can resume “in the near future” if the limitation is expected to cease within two months. This common-sense approach to the meaning of “temporary” and “in the near future” comports with the purpose of the PWFA and provides clear guidance to employers.

The EEOC cannot rely on the “undue hardship” prong to save its overbroad interpretations

Throughout the preamble to the proposed rule, the EEOC asserts that its broad interpretations of the terms above will not negatively impact employers because employers can always “raise the undue hardship defense.” As the EEOC recognizes, however, analysis of this defense is case-specific and involves the application of multiple factors. The availability of this defense therefore provides employers with little certainty, and the EEOC’s reliance on the defense will lead to more litigation between employers and employees. 

For example, consider an employee with postpartum anxiety who requests the suspension of an essential function for 40 weeks. Under the proposed rule, the only way an employer could successfully deny such a request is by proving an undue hardship defense, a fact-specific inquiry as to which the employer cannot successfully predict a court might hold. Accordingly, the mere fact that employers can assert an undue hardship defense does not justify the EEOC’s overbroad interpretations discussed above.

  1. Several provisions of the rule require added clarity.

IWF encourages the EEOC to provide greater clarity on certain aspects of the rule. First, EEOC should provide additional examples of when an accommodation is not required by the PWFA. Second, the EEOC should clarify its guidance on the ability of employers to demonstrate undue hardship based on the cumulative burden of multiple requests for the same accommodation.

The EEOC should provide additional examples where accommodation is not required

In the proposed rule, the EEOC provides employers with many examples of how the rule would be applied in common situations. Most of these examples illustrate situations where an accommodation would be required under the PWFA. Unfortunately, very few examples illustrate when an accommodation would not be required under the PWFA.

Employers need clarity on what they may say “no” to under the PWFA just as much as they need clarity on what they must say “yes” to. For instance, Example 1636.3 #31 identifies a situation where an employee’s request for a part-time schedule “likely” would be an undue hardship for the employer, and Example 1636.3 #32 identifies a situation where an employee’s request for full-time telework “may be” an undue hardship. These examples help employers by identifying common situations where a request would be unreasonable, although both examples would benefit from more certain conclusions (e.g., “the employer need not grant the accommodation”), which would be analogous to the definitive language that the EEOC uses in its examples where an accommodation is required (i.e., “the employer must grant the accommodation”).

The proposed rule would benefit from more examples like Example 1636.3 #31 and #32. In particular, the regulations’ references to the assignment of pregnant employees to “light duty” programs likely will raise many questions for employers. Employers will want to know, for example, that if they do not already have a light duty program in place, the PWFA does not require them to create one. Employers also will want to know the dollar value at which a requested accommodation is so expensive that it amounts to an undue hardship—is it $200, $500, or $1,000? The proposed rule currently does not offer any guidance on this point.

The EEOC should clarify its discussion of “cumulative” burden

The proposed rule states that “[a] covered entity may not establish that a reasonable accommodation imposes an undue hardship based on a mere assumption or speculation that other employees might seek a reasonable accommodation, or even the same reasonable accommodation, in the future.” The preamble’s discussion of this provision states, in full, that:

Lastly, the rule provides that a covered entity cannot demonstrate that a reasonable accommodation imposes an undue hardship based on an assumption or speculation that other employees might seek a reasonable accommodation—even the same reasonable accommodation—or the same employee might seek another reasonable accommodation in the future. Relatedly, a covered entity that receives numerous requests for the same or similar accommodation at the same time (for example, parking spaces closer to the factory) cannot deny all of them simply because processing the volume of current or anticipated requests is, or would be, burdensome or because it cannot grant all of them as requested. Rather, the covered entity must evaluate and provide reasonable accommodations unless or until doing so imposes an undue hardship. The covered entity may point to past and cumulative costs or burden of accommodations that have already been granted to other employees when claiming the hardship posed by another request for the same or similar accommodation.

This discussion would benefit from additional clarity in two respects. First, the EEOC should provide guidance to employers as to how they should choose between multiple requests for the same accommodation in situations where granting all (but not some) of the requests would be an undue hardship. Should employers prioritize requests based on timing, severity of condition, or the statutory scheme or policy under which an employee claims the request?

Second, the EEOC should make clear that cumulative costs can constitute an undue hardship where those costs are established (i.e., have actually been incurred) or are well-grounded estimates of future burden (i.e., not mere speculation or baseless assumption). Although the preamble’s discussion of the intent of the proposed section is unclear, it appears that this clarification might be consistent with the EEOC’s views. In any event, the clarification is eminently reasonable. It would make no sense to require employers, for example, to grant the first nine requests for an accommodation, but finally to permit them to decline the tenth based on the then-documented history of cumulative burden. Requiring employers to engage in such a fruitless exercise not only would impose unjustified costs on businesses, it also would lead to resentment among employees.

*          *          *

IWF appreciates the opportunity to comment on the EEOC’s proposed regulations implementing the PWFA. We all want pregnant women to feel safe at work and free from discrimination by their employers. As IWF’s comments demonstrate, the devil is in the details. If the EEOC implements the suggestions identified above, IWF is confident that the rule will better serve both pregnant women and their employers.


Carrie Lukas
Independent Women’s Forum

See Office on the Economic Status of Women, Minnesota Legislature, Why are women-owned businesses overall smaller than men-owned businesses? (August 2016), available at https://www.oesw.mn.gov/PDFdocs/Why%20do%20women%20start%20disproportionately%2 0fewer%20businesses%20than%20menv2.pdf.
See 88 Fed. Reg. 54714, 54765 (Aug. 11, 2023).
See Beth Almeida and Isabela Salas-Betsch, Center for American Progress, Fact Sheet: The State of Women in the Labor Market in 2023available at https://www.americanprogress.org/article/fact-sheet-the-state-of-women-in-the-labor-marke t-in-2023//
5 42 U.S.C.A. § 2000gg-1.
6 88 Fed. Reg. at 54767 (proposed § 1636.3). 7 See H. Rept. No. 117-27 (2021).
8 88 Fed. Reg. at 54774.
9 42 U.S.C. § 2000e(k).
10 H. Rept. No. 117-27, at 35 (2021).
11 See generally Sessions v. Morales-Santana, 582 U.S. 47, 58 (2017) (laws that differentiate based on gender require an “exceedingly persuasive justification”).
12 See, e.g. 88 Fed. Reg. at 54765 (regulatory impact analysis depending on assumption that “approximately 33 percent, or 165, of these workers are women of reproductive age (aged 16-50 years), and that approximately 4.7 percent of these, or 7.755 workers, will give birth to at least one child during a given year”).
13 42 U.S.C.A. § 2000gg.
14 88 Fed. Reg. at 54767.
15 See 88 Fed. Reg at 54725 (“When the worker returns from leave after childbirth, if the worker needs an essential function temporarily suspended, they will meet the definition of ‘qualified’ for ‘in the near future’ if they could perform the essential function within forty weeks of the suspension. In other words, for ‘in the near future,’ the forty weeks would restart once the pregnancy is over and the worker returns to work after leave.”).
16 See, e.g., H. Rept. No. 117-27, at 27–28 & n.109 (citing Robert v. Bd. of Cnty. Comm’rs of Brown Cnty., Kans., 691 F.3d 1211 (10th Cir. 2012)).
17 Robert, 691 F.3d at 1218 (“A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’ Although this court has not specified how near that future must be, the Eighth Circuit ruled in an analogous case that a six-month leave request was too long to be a reasonable accommodation.” (citation omitted)); see also Mannan v. Colorado, 841 F. App’x 61, 71 (10th Cir. 2020) (“[H]olding onto a nonperforming employee for six months just isn’t something the Rehabilitation Act ordinarily compels.” (quotation marks omitted)).; Epps v. City of Pine Lawn, 353 F.3d 588, 593 n.5 (8th Cir. 2003) (“Epps asserts that the six-month leave of absence was reasonable; however, Pine Lawn, a small municipality, could not reallocate Epps’s job duties among its small staff of fifteen to twenty-two police officers.”).
18 Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 480 (7th Cir. 2017); Stallings v. Detroit Pub. Sch., 658 App’x 221, 226 (6th Cir. 2016); Dave McClurg, Out of Office: Extended Leave Under the ADA, Wis. Law., October 2018, at 18, 19 (“In Severson v. Heartland Woodcraft, the Seventh Circuit Court of Appeals provided clear guidance that a request for leave of two months or more is ‘too much’ to be considered reasonable under any circumstances.”).
19 See, e.g., Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119, 130 (1st Cir. 2017) (“She has failed to show that her proposed accommodation of an additional twelve months—a lengthy period—of leave is a facially reasonable accommodation. For starters, the sheer length of the delay, when coupled with her prior five-month leave from December 2011 to May 2012, jumps off the page.”); Cooley v. E. Tennessee Hum. Res. Agency, Inc., 720 F. App’x 734, 741 (6th Cir. 2017) (“[F]or an additional leave of absence to be a reasonable accommodation under the ADA, the employee must, at a minimum, provide the employer with an estimated, credible date when she can resume her essential duties.”); Luke v. Bd. of Trustees of Fla. A & M Univ., 674 Fed. App’x 847, 850 (11th Cir. 2016) (request for additional leave, after employee had already received nine months of leave, was unreasonable-accommodation request); Stallings, 658 F. App’x at 226–27 (“Stallings’ bare assertion that ‘a four-month medical leave [is] not excessive’ does not make it so, particularly in light of the fact that DPS excused Stallings from teaching the previous semester.”); McAllister v. Innovation Ventures, LLC, 983 F.3d 963, 972 (7th Cir. 2020) (“The four months of leave she would have required would have been on top of the two and a half months of leave Innovation gave her between June and August 2016.”)
20 Cooley, 720 Fed. Appx. at 741; see also Byrne v. Avon Prod., Inc., 328 F.3d 379, 381 (7th Cir. 2003) (“Inability to work for a multi-month period removes a person from the class protected by the ADA.”).
21 88 Fed. Reg. at 54724; see also, e.g., id. at 54725–54726, 54777–78.
22 See id. at 54733.
23 See Severson, 872 F.3d at 482 (“An employer need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation.” (cleaned up)).
24 88 Fed. Reg. 54769 at (proposed § 1636.3(j)(5)).
25 88 Fed. Reg. at 54786 (footnote omitted).