Pregnant Workers Fairness Act Rule Withstands Legal Challenge

A legal challenge of the U.S. Equal Employment Opportunity Commission’s (EEOC’s) Pregnant Workers Fairness Act (PWFA) regulations was dismissed just days before the rule’s effective date of June 18.

Less than a week after the EEOC issued its PWFA regulations, Tennessee and 16 other states sued, challenging the aspects of the regulation dealing with abortion. The regulation included abortion in a list of examples of medical conditions related to pregnancy that are covered by the act. The states also sought to stop the entire regulation from taking effect.

The states challenged how the regulation addressed elective abortion—abortion prompted exclusively by the pregnant person’s choice. These abortions, and almost all abortions, are illegal in the states that sued to block the act.

They argued that the rule isn’t consistent with the words in the PWFA, rests on flawed reasoning, and violates the U.S. Constitution as well as the Administrative Procedures Act. The states also pointed to their strong anti-abortion public policies, present in some of their constitutions and many statutes.

The EEOC defended its work and said the Arkansas district court where the case was brought lacked subject matter jurisdiction because the states’ asserted injuries were speculative and neither traceable to the regulation nor redressable by the injunction sought. The states didn’t claim any actual harm yet, only that they faced imminent injury.

The court decided that the states hadn’t shown that the commission’s rule is likely to cause alleged harms.

Pausing the regulation would not eliminate the question of whether the act itself requires state employers to accommodate elective abortions that are illegal under state law, the court noted.

Nor are there costs that have resulted yet from the rule; the compliance costs are only imminent.

“States do not have a monopoly on regulating workplace accommodations or abortion,” the court said. It noted that the EEOC has regulated the workplace for almost 60 years and said the regulation tracks the statute.

However, the court did say that abortion doesn’t fit into the ordinary meaning of “condition,” though it also noted that two courts of appeal and a district court have held that abortion is a related medical condition for the purposes of Title VII and deferred to the agency’s interpretation.

The court concluded that because the states lacked standing to sue and hadn’t shown a likelihood of irreparable harm, the court didn’t need to decide whether they had shown a likelihood of success on the merits.

“The states haven’t made a compelling case for issuing a nationwide injunction of the entire EEOC regulation,” the court said.

This decision is Tennessee v. EEOC, 24-cv-84 (June 14, 2024). The complaint was dismissed without prejudice, meaning it might be brought again.

We’ve gathered articles from SHRM Online and other outlets about the news.

States That Sued

In an April complaint, 17 states cited the compliance costs to state governments and infringement on states’ sovereignty, because laws in many of the plaintiff states have “prohibited or limited abortion with rare exceptions.” Louisiana and Mississippi later sued, as well.

In addition to Louisiana and Mississippi, the states opposing the rule were: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

The text of the final rule said the effects of accommodations for abortion will be limited and likely will only include leave from work.

(Bloomberg, SHRM Online, states’ lawsuit, and The National Law Review)

Coalition of Other States Defended Rule

New York Attorney General Letitia James announced on May 23 a coalition of 23 state attorneys general who support the rule.  

“At a time when reproductive health care services are at risk, it is critical to ensure that workers who obtain abortion care are protected by this law,” James said. “The law makes it clear that workers should not have to choose between their health and their job. Striking down these regulations would put workers across the country at risk, and I thank my fellow attorneys general for joining this effort to defend them.”

In addition to New York, the states defending the regulation were: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, as well as the District of Columbia.

(New York attorney general’s press release)