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Texas court invalidates Pregnant Workers Fairness Act under Quorum Clause

3/11/24

By: William H. Buechner, Jr.

A Texas district court has held that the Pregnant Workers Fairness Act (the “PWFA”) is invalid because it was enacted in violation of the Quorum Clause of the Constitution. In Texas v. Garland, —- F. Supp.3d —, 2024 WL 814498 (N.D. Texas Feb. 27, 2024), the court issued a permanent injunction enjoining the enforcement of the PWFA against the state of Texas.    

The PWFA adopts for pregnant employees the accommodation mechanisms set forth in the Americans with Disabilities Act (“ADA”). See 42 U.S.C. §§ 2000gg – 2000gg-6. The PWFA requires employers to “make reasonable accommodations to the known impairments related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 2000gg-1(1). The PWFA is intended to fill in gaps that existed with respect to protections for pregnant employees provided under other anti-discrimination statutes such as the ADA, the Pregnancy Discrimination Act and the Family and Medical Leave Act. For example, pregnancy generally does not constitute a disability under the ADA unless there are significant complications with the pregnancy. Texas, 2024 WL 814498, at *7 (citing cases). The PWFA incorporates the enforcement mechanisms and remedies applicable to Title VII. 42 U.S.C. § 2000gg-2. The PWFA went into effect on June 27, 2023, and the EEOC issued proposed regulations on August 11, 2023. 

The PWFA was enacted as part of the Consolidated Appropriations Act of 2023 (“the Act”) on December 23, 2022 and signed into law on December 29, 2022. The U.S. House of Representatives passed the Act by a vote of 225-201, with one member voting “present” and another member not voting. However, 226 House members voted on final passage of the Act via proxy pursuant to a House rule adopted on May 15, 2020, during the peak of the COVID-19 pandemic, that allowed House members to vote by proxy if certain conditions were met. Thus, there were 8 House members fewer than a majority of the 435 House members physically present for the vote.   

The Quorum Clause provides as follows:

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. 

U.S. Const., art. I, § 5, cl. 1.

The court held that the text of the Quorum Clause requires that a majority of House members be physically present in order to conduct business, such as voting on proposed legislation. Texas, 2024 WL 814498, at *40-41. The court also held that the physical-presence requirement was confirmed by the history surrounding the adoption of the Quorum Clause and the consistent recognition and application of this requirement by the House and Senate until the House adopted the proxy rule on May 15, 2020. Id., *41-46. The court also distinguished voting by proxy from the established and widespread practice of taking legislative action via unanimous consent, which allows action to be taken without a quorum if no member objects to the proposed action. The court explained that the unanimous consent process is distinguishable because it is based on a recognized presumption that once a quorum is established at the beginning of each Congress, a quorum is always present “unless disclosed by a vote, or questioned by a point of no quorum.” Id., *46. In this case, the court explained, the absence of a quorum was revealed by the roll call vote on the Act, which showed that fewer than a majority of House members were physically present for the vote. Id., *47-48. Texas did not seek, and the court did not grant, a permanent injunction against enforcement of the entire Act, but rather just the PWFA.

This is the first case addressing whether Congress validly enacted the PWFA in compliance with the Quorum Clause, and it is likely that the federal defendants will appeal the court’s ruling to the Fifth Circuit. The ruling in Texas only enjoins enforcement of the PWFA against the state of Texas and its departments and agencies as an employer. Accordingly, employers should continue to follow the procedures and processes they have adopted to ensure compliance with the PWFA while case law (including a likely appeal in the Texas case) develops on this issue. Of course, if the courts reach a consensus that Congress did not validly enact the PWFA in December 2022, Congress could reenact the PWFA with the required quorum. However, in the meantime, employers should consider raising the constitutionality of the PWFA as an affirmative defense in they are sued for alleged violations of the PWFA. Employers who are sued for alleged violations of the PUMP for Nursing Mothers Act should consider raising this defense as well, as that statute also was enacted as part of the Act.  

For more information, please contact William H. Buechner, Jr. or your local FMG attorney.