The Pregnant Workers Fairness Act was a bipartisan measure passed by Congress in 2023 as part of a broader consolidated appropriations bill. The House of Representatives adopted the legislation despite the fact that less than a quorum of House members were present in person during the vote. Instead, the House relied on COVID-19 era proxy voting rules to approve the measure.

After the bill was signed into law, the State of Texas filed suit challenging the constitutionality of the legislation based on the use of proxy voting. A federal district court agreed, but this decision was overturned by a split panel of the Fifth Circuit Court of Appeals. Texas moved for an en banc review of this decision by the full Fifth Circuit, and that review is scheduled for an upcoming hearing.

If the full Fifth Circuit reverses the panel decision, the U.S. Supreme Court could ultimately have the final say on the issue. If the PWFA is declared unconstitutional, Congress may act to reimpose the measure, which was touted as pro-family assistance to working mothers. The plaintiffs in the lawsuit may hope that any replacement law would explicitly exclude coverage under the law for abortion and other family planning related medical conditions. EEOC regulations that include these medical conditions have been the subject of separate lawsuits challenging their consistency with the statute.

Employers should keep a close eye on this litigation. If the PWFA is nullified, presumably pending EEOC investigations and lawsuits based on the law would be dismissed.

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