A Lullaby? Pregnant Workers Fairness Act May Be Unenforceable

The Pregnant Workers Fairness Act (PWFA) will not be enforced against the state of Texas. At least right now. 

The PWFA requires covered employers to provide reasonable accommodations to qualified employees and applicants “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”  

On Feb. 27, Judge James Wesley Hendrix of the U.S. District Court for the Northern District of Texas filed an order that blocked the federal government from enforcing the PWFA against the state of Texas. The judge found the PWFA to be unenforceable because Congress violated constitutional proxy laws when passing the Consolidated Appropriations Act of 2023, to which the PWFA was attached. 

On March 6, the Equal Opportunity Employment Commission (EEOC) and the U.S. Department of Justice notified the court that it will comply with the order and not enforce the PWFA in the state of Texas, but noted the agency does not waive its right to appeal. 

Law360 summarized the government’s plans to enforce the injunction: “The government said it will ensure that no investigations are being pursued against Texas on charges that have been brought solely under the PWFA, and that it'll advise anyone who tries to file charges under the law against Texas that they can't be accepted because of the court's injunction. If charges are brought under the PWFA and other statutes, such as Title VII, the EEOC will only investigate charges that concern laws other than the PWFA….  If notice of a PWFA charge is mistakenly sent to a state agency, the EEOC expects the agency to notify the government of this mistake so that the commission can shutter the investigation in compliance with the judge's injunction, according to Wednesday's notice.” 

Other states, or even private employers, may now begin to challenge the PWFA's enforceability. In addition, the EEOC likely will issue final regulations for the PWFA any day now. This should be the year we learn how – and if – the PWFA will be enforced, so watch the developments closely and stay tuned.