Here's how this rule to protect pregnant workers will actually hurt women

Throughout my career, I have tirelessly supported women’s full inclusion in the workplace. In the numerous state- and federal-level positions I have held, including during my tenure as the director of the Women’s Bureau at the Department of Labor, I have consistently fought to dismantle barriers to women’s participation in the workforce. 

As such, I support the goals of the Pregnant Workers Fairness Act (PWFA). The legislation takes a significant step forward in modernizing the current workplace environment, which is mainly outdated and still predominantly structured around the needs of a male workforce. 

However, my experience in the labor field leaves me concerned that the wording of the proposed regulations does not adequately emphasize the specific protections that would secure women’s equal place in the workforce. 

In their current form, I fear that the regulations not only write women out of a law that Congress clearly enacted to protect the health of expectant mothers but also operate as a Trojan horse to force employers to accommodate far more than pregnant women – which is why I have submitted comments to the Equal Employment Opportunity Commission (EEOC) about their radical and politically driven regulations.

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As Rachel Morrison previously pointed out, the EEOC’s regulations purposely avoid referencing "women" in a regulation that is intended to "promote women’s health," instead using terms such as "qualified employees" and "workers" to refer to women protected under the act. I fear that the EEOC is nefariously using the issue of women’s rights in the workplace to expand its authority on other issues, including transgender and abortion rights.

The regulation includes no language to suggest that its protections apply only to biological women who are pregnant. The EEOC explicitly states that its list of "related medical conditions" surrounding pregnancy is "non-exhaustive," implying that conditions that can apply to biological males – such as hormone treatments for transgender parents who choose to "chest feed" or fertility treatments for men – can be protected under the regulation.  

Furthermore, the PWFA authorizes the EEOC to enforce "Prohibition against coercion," but the regulation expands the definition of "coercion" to include "harassment based on an individual's exercise or enjoyments of rights under the PWFA." 

However, the regulation is unclear about what constitutes harassment and whether the definition is so broad as to include speech made by employers of faith who might disagree or want religious exemptions for accommodating controversial and, in some states, illegal procedures such as abortions that this regulation might force them to support against their will.

As the regulation is written, the EEOC may use PWFA protections to prosecute religious employers who disagree with biologically male employees seeking accommodations for experimental "chest feeding" or with a female employee’s abortion. Such litigation would not only trample the First Amendment rights of the individuals in question but also force the EEOC’s attention away from the issue initially outlined in the PWFA: the rights of pregnant women.

The non-exhaustive list of conditions and the poorly defined inclusion of "harassment" demonstrate that the regulation is overly broad, and the EEOC must provide clarification in the final regulation. The EEOC claims that the regulation was "reviewed in accordance with Executive Order 12988 and will not unduly burden the federal court system."

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However, by wrapping the issues of transgender inclusion, abortion and religious freedom into the PWFA, the EEOC will accomplish the opposite with this regulation, dooming federal courts to decades of litigation that ultimately has little to do with pregnant women.

The collateral damage the regulation will inflict does not end at the courts. The EEOC has implicitly claimed that its regulation clears the standard of the Regulatory Flexibility Act in that it will not have a significant economic impact on many small entities. However, the complexity of the regulations will have an undue impact on small businesses, including those owned by women. 

Most small businesses do not have the in-house legal acumen to navigate the complexities the regulations add to the PWFA, and it will fall to the owners to enforce and bear the brunt of these rules and the inevitable suits. The 12 million women-owned small businesses employ over 10.1 million workers as of 2023; a bill originally intended to protect women in the professional world will, for this reason, end up doing them harm. 

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Clearly, as is, the proposed regulation does a disservice to professional women. While I support the goals outlined in the initial legislation, I disagree strongly with the EEOC's proposed implementation. The PWFA should be clearly limited to pregnant women to maintain a pregnancy, give birth and recover from childbirth, and I call upon the EEOC to update its regulations with a targeted focus. 

By focusing regulations back to the law’s initial intent, the EEOC is more likely to issue regulations that will withstand legal challenges and maintain the broad support of the American public.

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