Is the Pregnant Workers Fairness Act an invalid law?

At least one judge thinks so.

A federal judge in Lubbock, Texas, has permanently enjoined the federal government from enforcing the Pregnant Workers Fairness Act against the State of Texas and its agencies and divisions.

The PWFA took effect in June 2023. It generally requires employers to make reasonable accommodations for employees who are pregnant or who have pregnancy-related conditions. In August, the Equal Employment Opportunity Commission issued proposed regulations on the PWFA, and took an extremely broad view as to what a “pregnancy-related condition” might be. According to the EEOC, that term includes not only medical conditions that are directly related to pregnancy but also contraception and sterilization, abortions, some hysterectomies, lactation, and more.

According to the decision issued on Tuesday by Judge James Wesley Hendrix, the U.S. House of Representatives didn’t have a quorum when it passed appropriations legislation that contained, among many, many other things, the PWFA. House members were improperly counted “present” and voted by proxy, and as a result the vote was no good. The decision is significant because Judge Hendrix is a Biden appointee.

Just kidding. He’s a Trump appointee.

Anyway, the State of Texas challenged the PWFA and one other non-employment-related law that was included in the legislation. Judge Hendrix ruled that Texas lacked standing to challenge the other law, but he found in favor of Texas with respect to the PWFA.

Nerd alert!

Here’s where Judge Hendrix was coming from:

Article I, Section 5, Clause 1 of the U.S. Constitution states as follows (referring to the two Houses of Congress):

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

According to Judge Hendrix, this is saying that a quorum consists of a majority of the members of each house. (The House of Representatives has 435 members in all, so a majority – and thus a quorum – is 218.) If the House doesn’t have a “quorum,” then they can either adjourn, or they can compel the absent members to show up so that they can “do Business.”

And, according to the Judge (I’m taking his word for it because I am not a constitutional scholar), “showing up” has historically been interpreted to mean "being there in person." The Founding Fathers were not big on Zoom or Teams.


But in May 2020, at the height of COVID-19, the House passed a rule allowing “non-present members to be included in the quorum count and vote by proxy.”

Which brings us to Washington, D.C., December 2022.

The Consolidated Appropriations Act of 2023

The Consolidated Appropriations Act of 2023, which included the PWFA as well as the PUMP for Nursing Mothers Act (expanding then-existing requirements related to lactation accommodation), was voted on in the House on December 23, 2022. Only 205 representatives voted in person. So, a few reps short of a quorum.

However, when the absent members who voted by proxy were added, there was a quorum. The legislation passed, and President Biden signed it into law on December 29, 2022.

Judge Hendrix found that

  • The 2020 proxy rule violates the Constitution’s Quorum Clause,
  • Therefore there was no quorum in the House on December 23, 2022, because only 205 members voted in person (226 voted by proxy),
  • Therefore the House was not constitutionally authorized to vote on the Consolidated Appropriations Act, of which the PWFA was a part,
  • And therefore, the PWFA is invalid.

What now?

Judge Hendrix’s decision applies only to the state government of Texas and its employees, and only to the PWFA. Texas did not challenge the entire Consolidated Appropriations Act, so the court did not strike it down.

The decision is almost certain to be appealed, although the U.S. Court of Appeals for the Fifth Circuit is generally not a bad place for Texas to be. (According to the court’s opinion, the government had unsuccessfully tried to move the lawsuit from Lubbock to the District of Columbia, or at least to Austin. Heh.)

Meanwhile, could other states, or private sector employers, also claim that the PWFA (or the PUMP Act) is invalid, just as Texas has done? Why not? Texas managed to get a permanent injunction, which prevents the federal government from enforcing the law before it has even tried to do so. To get a permanent injunction, a plaintiff has to meet some very demanding requirements, including showing that it would suffer “irreparable harm” if the injunction were not issued. Judge Hendrix’s finding that Texas would suffer irreparable harm was based in large part on the fact that the PWFA waived the state's sovereign immunity.

Sovereign immunity does not apply to private sector employers, but some of the other considerations could. The judge also considered the increased costs of compliance, even for an employer who was already accommodating pregnancy, and increased costs related to the defense of EEOC charges and lawsuits, not to mention damage awards.

I suspect that it would be tough for a private sector employer to get a permanent injunction, but I don’t see why it couldn’t raise the invalidity of the PWFA as a defense to an EEOC charge or lawsuit. Because the PWFA is so new, I haven't had to defend a charge or lawsuit yet, but I'll certainly include that as a defense when I do.

I've been a pregnant worker myself, and so have my dear daughters-in-law. I strongly favor making reasonable accommodations for pregnant employees when it’s possible to do so. Most of the employers I deal with have been doing that for years, law or no law. But Judge Hendrix's decision may come in handy when an employer gets a charge or lawsuit despite having tried to do the right thing.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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