On February 27, 2024, U.S. District Judge James Wesley Hendrix of the Northern District of Texas, Lubbock Division blocked enforcement of the Pregnant Workers Fairness Act (PWFA) against the state of Texas and its divisions and agencies, finding passage of the PWFA violated the U.S. Constitution’s quorum requirement. Below we discuss the terms of the PWFA, its enactment, and the subsequent legal challenge.


The PWFA requires covered employers1 to provide “reasonable accommodations” for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. According to the EEOC’s regulations implementing the PWFA, there are four specific accommodations that will almost always be a reasonable accommodation under the PWFA: (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee breaks, as needed, to eat and drink.

The PWFA’s accommodation provisions are based on the Americans with Disabilities Act’s (ADA) interactive process, but impose additional obligations on an employer. Unlike the ADA, under the PWFA, an employer may be required to eliminate an essential job function so long as the inability to perform the necessary function is temporary, the essential function can be performed in the near future (i.e., 40 weeks or less), and the inability to perform the essential function can be reasonably accommodated. In addition, the PWFA applies to “known limitations”, which is broader than qualifying disabilities under the ADA. 

The PWFA also prohibits an employer from: requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and employer; denying a job other employee opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation; requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working; retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, such as an investigation; or interfering with any individual’s rights under the PWFA.

The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.

The quorum requirement

Congress passed the PWFA as part of the Consolidated Appropriations Act of 2023. At the time of the vote, 218 members of the House of Representatives were required for a quorum. Yet, 226 House members voted by proxy while the remaining 205 House members were present and voted in-person. The PWFA passed with 225 yeas over 201 nays. President Biden then signed the PWFA on December 29, 2022 and it took effect on June 27, 2023.

The lawsuit (State of Texas v. Garland, et al., No. 5:23-CV-034-H (N.D. Tex.))

On February 15, 2023, the state of Texas filed suit challenging the constitutionality of the PWFA. Texas argued that the PWFA could not be enforced against the state because the House’s pandemic-era proxy rule violates Article I, Section 5 of the Constitution by allowing members of the House to be counted in the quorum without being physically present. As a result, the passage of the Consolidated Appropriations Act, which included the PWFA, did not satisfy the quorum requirement as only 205 members were physically present to vote.

The court ruling

In a 120-page decision, the Judge Hendrix agreed with Texas, concluding that “the Quorum Clause bars the creation of a quorum by including non-present members participating by proxy,” and that “by including members who were indisputably absent in the quorum count, the Act at issue passed in violation of the Constitution’s Quorum Clause.” Judge Hendrix emphasized that the long-accepted interpretation of the quorum clause, reasoning: “Supreme Court precedent has long held that the Quorum Clause requires presence, and the clause’s text distinguishes those absent members from the quorum and provides a mechanism for obtaining a physical quorum by compelling absent members to attend.”

As a result of the ruling, enforcement of the PWFA against the state of Texas is permanently enjoined. Upon receiving a PWFA charge against Texas, the DOJ, EEOC, and other federal agencies must now issue a written notice to the claimant stating that “due to this Order, they are unable to accept the charge, investigate it, or issue a right-to-sue letter.” Notably, the order does not extend to private employers in Texas or public employers outside of Texas. In addition, the ruling does not affect employees’ rights and protections under state, local, or federal laws such as the Pregnancy Discrimination Act, ADA, Fair Labor Standards Act, Family and Medical Leave Act, and the Texas Commission on Human Rights Act.  

The ruling’s impact on employers

Because the ruling does not apply to private employers in Texas, private employers should continue to comply with the PWFA. Given the PWFA’s expanded protections, private employers should review their accommodations process and policies, and train their human resources and management employees on compliance with the PWFA. Employers should also remember that, regardless of the success of the PWFA, employers must still comply with all other state, local, and federal protections for pregnant workers.  

  1. “Covered employers” include private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations. ↩︎