Wisconsin AG joins coalition to defend pregnant and postpartum employees

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Last week, Attorney General Josh Kaul joined a coalition of 23 attorneys general to oppose a complaint brought by 17 attorneys generals in “red states” that seeks to stop new federal protections for pregnant and postpartum employees.

On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) published its final rule implementing the Pregnant Workers Fairness Act (PWFA), a landmark federal law enacted in 2022 that requires employers to provide reasonable accommodations for pregnancy, childbirth and related medical conditions unless the accommodation will cause an undue hardship to the employer. The list of related medical conditions in the EEOC’s rule includes infertility, nausea or vomiting; high blood pressure; frequent urination; loss of balance; miscarriage, stillbirth, and abortion.

A few days later, the attorneys general of 17 states, led by Tennessee, sued the EEOC, arguing against the inclusion of abortion in the EEOC’s lengthy list of “related medical conditions”:

“If the rule stands, Tennessee, its co-plaintiff States, and many others must facilitate workers’ abortions or face federal suit-even those elective abortions of healthy pregnancies that are illegal under state law. Plaintiffs now bring this Complaint to invalidate EEOC’s unprecedented and unlawful abortion-accommodation mandate.”

They also contend that the “abortion-accommodation mandate” was not included in the PWFA when it was passed by the U.S. Congress with broad bipartisan support and that, “throughout debate on the PWFA, lawmakers expressed agreement on the PWFA’s singular intent—to accommodate pregnant workers to ensure healthy pregnancies and childbirth.”

Filing an amicus brief in the U.S. District Court for the Eastern District of Arkansas in support of EEOC’s opposition to plaintiffs’ motion, Attorney General Kaul and the other amici states argue that the EEOC was correct to include termination of pregnancy—including via miscarriage, stillbirth, or abortion—in the law’s protections for “pregnancy, childbirth, or related medical conditions” and that decades of case law interpreting an identical term in the Pregnancy Discrimination Act of 1978 (PDA) support the EEOC’s interpretation.

“Pregnant and post-partum workers shouldn’t have to choose between their jobs and doing what’s best for their health,” said Kaul. “The rule implementing the Pregnant Workers Fairness Act should remain in effect in full, including for workers who obtain an abortion,” Kaul added.

Plaintiffs are seeking a stay of the effective date and a preliminary injunction against enforcement of the entire EEOC rule pending outcome of the litigation but amici argue that “plaintiffs fail to justify the mismatch between the limited nature of their legal challenge and the broad relief sought in this motion.”

The amicus brief also highlights that, “the PWFA provides substantial protections beyond those provided by preexisting federal law and fills in many gaps left by inconsistent state law protections.”

Before the passage of the PWFA, pregnant and postpartum workers in Wisconsin were inadequately protected by the PDA and the Wisconsin Fair Employment Act (WFEA), explains attorney Alan Olson of Alan C. Olson & Associates, a law firm that specializes in employment law and employee rights.

“It may be our state motto but Wisconsin is not very ‘forward’ in comparison to thirty-one other states and the District of Columbia which were already providing a similar level of protection as the PWFA through their own state laws,” he says.

Olson notes that although the PWFA provides unprecedented protection with accommodations for pregnant workers, there is still a gap for many workers.

“Small businesses account for 85% of all businesses in Wisconsin and companies with fewer than 15 employees are covered only by the WFEA (not the PWFA) which prohibits discrimination on the basis of sex or pregnancy.  However, under the WFEA, employers have no legal duty to accommodate pregnant employees beyond what is provided to non-pregnant employees,” Olson added.

He continues with a specific example: “Typically, a pregnant woman may have a lifting restriction. She’s working on a line where she has to move some product that exceeds 30 pounds but her doctor says, no, I don’t want you lifting more than 30 pounds. Under the new federal law, she could go to the employer to receive an accommodation but under the WFEA, the employer is not required to do that.”

The attorneys general of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, and the District of Columbia joined Attorney General Kaul in filing the amicus brief.