Equity in Flux: How Legal Developments are Reshaping the Workplace for Women
By Charlotte Drew
The legal framework guiding women’s participation in the workforce has seen some welcome (and in many cases, overdue) updates in recent years. States are increasingly enacting laws requiring pay equity and transparency, paid family leave, and expanded protections for pregnant and nursing women. At the federal level, the Pregnant Workers Fairness Act marked a major advancement in protecting women’s caregiving roles and ensuring reasonable accommodations for employees during pregnancy and postpartum. These efforts, however, have been stymied by other federal action, including recent executive orders, that have narrowed avenues for women to gain equal footing in the workplace. This article addresses some recent trends in employment law and their implications for employers and employees, highlighting the complicated pursuit of equality in the workplace for women.
Pay Equity and Pay Transparency Laws
In 2018, California adopted the first pay transparency law.1 Since then, 15 other states, including Massachusetts in 2024, and a handful of localities have all enacted some form of pay transparency and/or pay equity legislation. These laws generally require employers to disclose pay ranges in job postings, provide salary information on demand, prohibit reliance on salary history in setting wages, and protect employees who discuss their wages. Recognizing that sunlight is the best disinfectant, pay equity and transparency have been cornerstones of workplace and wage equality. Additionally, by requiring employers to determine and advertise a pay range at the inception of the hiring process, these laws prevent later adjustments to salary based on protected characteristics like gender, while leaving employers free to negotiate equity, bonuses and other benefits when finalizing an employee’s total compensation package.
Paid Leave Laws
The federal Family and Medical Leave Act (“FMLA”) provides job protected leave to care for one’s own health condition, including the birth, adoption or foster care placement of a child, or to care for a family member’s serious health condition.2 But the FMLA has some gaps that have prevented it from affecting broader change for women. It only covers employers with 50 or more employees, leave is not paid, and leave is capped at 12 weeks per year for family leave.3 Family members are limited to spouses, children and parents.4 States are increasingly enacting more robust leave programs that provide paid, job protected leave to care for oneself and one’s family members. Massachusetts’s Paid Family and Medical Leave (“PFML”) for example, covers all Massachusetts employers, regardless of the number of employees. It provides up to 26 weeks of paid leave, and it expands the definition of family members to include domestic partners, parents of a spouse or domestic partner, persons who stand in loco parentis, grandchildren, grandparents, and siblings.5 To date, 13 states have enacted mandatory paid leave programs, and eight states have enacted voluntary paid leave options which employers can purchase through private insurers.6 Additionally, 18 states and the District of Columbia mandate paid sick leave. These programs recognize the structural barriers to employment imposed on women by failing to guarantee compensation while recovering from childbirth, and that caregiver duties, whether for children or extended family members, disproportionately fall on women.
Expanded Protections for Pregnant and Nursing Employees
Recent years have seen a flurry of expanded protections at both the state and federal level for pregnant and nursing employees. On June 27, 2023, the federal Pregnant Workers Fairness Act (“PWFA”) took effect after more than a decade of advocacy for its promulgation. The new law requires covered employers to provide reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions, so long as the accommodation does not pose an undue hardship.7 Prior to the PWFA, pregnant women had to show that they were “disabled” under the Americans with Disabilities Act (“ADA”) or they had to demonstrate unequal treatment in violation of Title VII. The PWFA removes those hurdles by providing a standalone right to accommodations for pregnancy-related conditions. Accommodations likely required under the PWFA include flexible scheduling to attend prenatal appointments, access to water and seating, temporary light duty, and more frequent bathroom breaks. Several states, including Massachusetts, have similar protections for pregnant and nursing employees, but the federal law provides employers with a clear nationwide baseline standard, and strengthens employees’ ability to challenge discriminatory treatment and navigate the workplace while pregnant and post-partum.
In a similar vein, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), enacted in 2022, expanded protections for nursing employees by guaranteeing salaried and exempt workers beak time and private spaces for expressing breast milk at work.8 The PUMP Act also adds crucial enforcement mechanisms and allows employees to seek monetary damages for violations.9
Both the PWFA and PUMP Act, and similar state laws, recognize the needs for structural protections for pregnant and nursing women in the workplace, and that an informal understanding of such needs is not sufficient. It also takes the onus off women to ask for “special treatment” by establishing uniform baseline standards. These laws are significant advancements that, coupled with enhanced family leave and pay equity and transparency legislation, provide women with a more level playing field in the workplace, and give employers clear guidelines to implement.
Executive Orders Affecting Women in the Workplace
Actions taken by the Trump Administration, however, have undercut some of these advancements. On January 21, 2025, by Executive Order 14173 (“EO 14173”), President Trump rescinded Executive Order 11246 which for 60 years had required federal contractors to implement affirmative action programs for women and minorities. Now, federal contractors must disband those programs, and representation of women and minorities in contracting pipelines is likely to drop. EO 14173 also requires federal contracts to include a provision certifying that the “contractual counterparty or grant recipient does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” Because it is not clear what DEI programs the federal government considers to conflict with anti-discrimination laws, employers are left guessing whether their programs remain lawful. In the face of uncertainty, and increasing litigation concerning the legality of DEI programs, some employers, including private employers, are cutting their programs.10
On January 20, 2025, President Trump issued an Executive Order Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (“EO 14168”) that has potentially broader implications. It makes clear that the federal government will recognize only male and female biological sexes (not gender or gender identity) and directs the federal government to “enforce all sex-protective laws to promote this reality.” Among EO 14168’s directives, federal agencies and federal employees must enforce laws “governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes” and the Department of Justice, Department of Labor, and the EEOC must “prioritize investigations and litigation to enforce” binary distinctions related to sex.11
While the order directed the EEOC to rescind its 2024 Enforcement Guidance on Harassment in the Workplace (the “2024 EEOC Guidance”) that included protections for transgender employees and prohibited misgendering and denial of bathroom access consistent with an employee’s gender identity, the EEOC has not yet done so. On May 15, 2025, however, a federal district court in Texas vacated the gender identity components of the 2024 EEOC Guidance because it “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary.”12 That court concluded that “Title VII does not bar workplace employment policies that protect the inherent differences between men and women.”13 This case exemplifies the consequences of EO 14168 for women in the workplace.
Notably, the executive orders do not preempt state law, and federal contractors and private employers alike must still comply with all applicable state anti-discrimination laws, including the pay equity and transparency laws discussed above.
Conclusion
One thing is clear: Progress towards gender equality is not linear. Employment laws take shape in shifting legal and cultural landscapes and political crosscurrents. Both employers and employees must navigate a complex patchwork of protections and restrictions that can vary widely by jurisdiction. In this dynamic environment, staying informed and adaptable is key to advancing inclusive workplaces that support all workers.
Charlotte Drew, senior associate at Duane Morris LLP, helps companies navigate employment law and workplace challenges. She is a graduate of Georgetown and Boston University.
1 See CA Labor Code § 1197.5.
2 See 29 U.S.C. § 2601, et seq.
3 See 29 U.S.C. §§ 2611-2612. Individuals entitled to servicemember caregiver leave may take a total of 26 workweeks of leave each year. Id. at § 2612.
4 29 U.S.C. § 2611.
5 M.G.L. c. 175M, §§ 1, 2.
6 Of note, Massachusetts also has a Parental Leave Act (formerly the Massachusetts Maternity Leave Act), which mandates eight weeks of parental leave for certain types of employment excluded from Massachusetts PFML and does not have specific annual earnings requirements. See M.G.L. c. 149 § 105D, and M.G.L. c. 151B, § 4(11A). Massachusetts changed this statute in 2015 so that it now applies regardless of gender, removing the stigma that only women need leave to care for a new child.
7 42 U.S.C. § 2000gg, et seq.
8 29 U.S.C. § 218d.
9 29 U.S.C. § 216(b).
10 EO 14173 has been the subject of a number of lawsuits seeking partial or full injunctions against enforcement, particularly with respect to the provision requiring contracting parties to certify that they do not operate DEI programs that violated federal law. To date, no nationwide injunction has been issued blocking the order.
11 EO 14168 is likewise the subject of numerous lawsuits challenging its constitutionality.
12 Texas v. Equal Employment Opportunity Comm’n, No. 2:24-CV-173 (N.D. Tex.), 2025 WL 1414332, at *10 (N.D. Tex. May 15, 2025).
13 Id. at *11.
