Proposed Rule Implementing PWFA Issued

The Equal Employment Opportunity Commission has issued a proposed rule implementing the Pregnant Worker Fairness Act (PWFA), which became effective on June 27th. The EEOC also settled the first artificial intelligence workplace discrimination case. Three federal agencies issued proposed rules designed to ensure that anyone seeking mental health and substance use coverage from a health insurer can access benefits as easily as anyone wanting medical or surgical benefits. As a result of the United States Supreme Court decision in Students for Fair Admissions v. President & Fellows of Harvard College, attorneys general from 13 states wrote to Fortune 100 CEOs warning them against discriminating based on race.


Pregnant Worker Fairness Act Proposed Rule Issued – The Equal Employment Opportunity Commission (EEOC) issued a proposed rule implementing the Pregnant Worker Fairness Act (PWFA). The law requires covered employers to provide reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of employees, unless the requested accommodation would cause an undue hardship. The EEOC will accept comments on the proposed rule until October 10, 2023. EEOC Chair Charlotte A. Burrows stated, “This important new civil rights law promotes the economic security and health of pregnant and postpartum workers by providing them with access to support on the job to keep working, which helps employers retain critical talent.”


The proposed rule cites the following reasonable accommodations that a worker could seek under the PWFA: job restructuring, part-time or modified work schedules, more frequent breaks, acquisition or modification of equipment, uniforms or devices, providing seats for jobs that require standing or the opposite, permitting the use of paid leave or other benefits including unpaid leave to attend health care related appointments and to recover from childbirth, light duty assignments, and temporarily lifting the requirement that an employee perform an essential function if the inability is temporary and the essential function could be performed in the near future.


The proposed rule contains numerous examples to assist employers with compliance. In addition to seeking overall comments, the EEOC identified a number of sections in the rule where they are seeking additional comments from the public. These include several definitions, ensuring workers are not penalized for using reasonable accommodations, examples of reasonable accommodations, choosing between accommodations, requiring employees to accept accommodations, and taking adverse actions due to requesting or using a reasonable accommodation.


EEOC Settles First AI Workplace Discrimination Case – The Equal Employment Opportunity Commission (EEOC) announced that it was entering into a consent decree settling a lawsuit that claimed the application software used by the employer, iTutor Group was programmed to automatically reject female applicants over 55 and male applicants over 60.  EEOC Chair Charlotte A. Burrows stated “Age discrimination is unjust and unlawful. Even when technology automates the discrimination, the employer is still responsible.”


According to the lawsuit, iTutor Group provided English language tutoring services to students in China and as a result of its application software, it failed to hire more than 200 qualified tutor applicants due to their age in violation of the Age Discrimination in Employment Act (ADEA). In addition to paying $365,000, the consent decree states that iTutor Group:


  • is prohibited from engaging in age or sex based discrimination against applicants,
  • will distribute written policies and procedures prohibiting discrimination,
  • will train all managers and employees involved in hiring on federal laws prohibiting discrimination based on age and sex, and
  • will allow the EEOC to monitor compliance and will provide the EEOC with periodic reports on complaints of discrimination from tutoring applicants.


Federal Agencies Release Mental Health Parity Proposed Rules – The Departments of Labor, Health and Human Services, and the Treasury released proposed rules designed to ensure that anyone seeking mental health and substance use disorder coverage can access treatment as easily as people requesting coverage for medical treatments. The Mental Health Parity and Addiction Equity Act is designed to prevent health insurers from “imposing copayments, prior authorization and other requirements on mental health or substance use disorder benefits that are more restrictive than those imposed on medical and surgical benefits.” Despite the law, the issuing agencies believe that those seeking coverage for mental health and substance use disorder care face greater barriers when trying to access benefits as compared to those seeking medical or surgical benefits. Comments on the proposed rules are due by October 2, 2023.


According to the issuing agencies, the proposed rules “seek to fully protect the rights of people seeking mental health and substance use disorder benefits and provide clear guidance to plans and issuers on how to comply with the law’s requirements.” The proposed rules would amend the nonquantitative treatment limitations (NQTLs) standard to prevent health insurance plans from placing greater limits on access to mental health and substance abuse disorder benefits as compared to medical/surgical benefits. An NQTL is any limitation on the duration and scope of benefits that is not expressed numerically. Under the proposed rules, health insurance plans would be required to collect and evaluate relevant data in a manner designed to assess the impact of NQTLs on access to mental health and substance use disorder benefits and medical/surgical benefits.


The Department of Labor also issued a technical release that requests public feedback on proposed new data requirements for limitations related to the composition of a health plan’s network. Comments on the technical release are also due by October 2, 2023.

Attorneys General Issue Discrimination Warning to CEOs – The attorneys general from 13 states sent a letter  to the CEOs of Fortune 100 companies “to remind you of your obligations as an employer under federal and state law to refrain from discriminating on the basis of race, whether under the label of “diversity, equity, and inclusion” or otherwise.” The letter was sent as a result of the recent decision by the United States Supreme Court in the case of Students for Fair Admissions v. President & Fellows of Harvard College, in which the court issued a ruling prohibiting Harvard and the University of North Carolina from using race-based admissions policies.


The letter claims that race discrimination is common among Fortune 100 companies and urges the CEOs “to immediately cease any unlawful race-based quotas or preferences your company has adopted for its employment and contracting practices. If you choose not to do so, know that you will be held accountable – sooner rather than later.” The letter was signed by the attorneys general of the following states: Alabama, Arkansas, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, and West Virginia.


Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at