[co-author: Josie Forney]

Within the last two weeks of June 2024, courts across the country reached opposite conclusions about the U.S. Equal Employment Opportunity Commission’s authority to implement legislation that requires employers to provide accommodations for employees who seek “purely elective abortions.”

Creation of the EEOC’s Final Rule – And its Implications

The Pregnant Workers Fairness Act, or PWFA, is a federal statute which addresses gaps in existing legislation that protects pregnant workers. The PWFA, which was passed in December of 2022, requires employers to make reasonable accommodations for pregnant employees that will address and help mitigate limitations related to pregnancy, such as accommodations for childbirth and related physical or mental health conditions.

The PWFA essentially prohibits employers from denying employment opportunities to pregnant workers by refusing to give them reasonable accommodations for pregnancy-related reasons. Employers are also prohibited from retaliating against employees for asking for accommodations. Only if an employer can demonstrate that giving an employee an accommodation would impose a substantial hardship on their business operations will a reasonable accommodation be denied. The coverage of the PWFA is wide: its regulations apply to any private employer with 15 or more employees and to all government employers.

Issues with the PWFA arose in the Spring of 2024, when the Equal Employment Opportunity Commission (EEOC) final rule was passed. The Agency’s interpretations of the statute contained in the final rule included a section that required employers to accommodate for elective abortions. Elective abortions are those that are voluntary, rather than necessary due to a medical condition or emergency. The EEOC justified their inclusion of elective abortions among the list of protected conditions by stating that having an abortion, regardless of the reason, constitutes an example of a pregnancy-related condition.

The inclusion of elective abortions in the PWFA’s final rule prompted varied reactions. Less than a month after the final rule was passed, multiple lawsuits were filed in various states, challenging the elective abortion rule.

Louisiana’s Decision: Standing to Strike Down the Rule

A lawsuit in a Louisiana federal court argued that the EEOC rule violated federal administrative law and the Constitution. Plaintiffs, including religious leaders and attorneys general of Louisiana and Mississippi, claimed that the rule conflicted with the Supreme Court’s 2022 Dobbs decision, which allows states to determine their own abortion laws.

One lawsuit was heard in a Louisiana federal court involving claims that the EEOC rule violated federal administrative law and the Constitution. Those suing the EEOC, which included religious leaders and attorneys general of Louisiana and Mississippi, argued that the new rule was in conflict with the Supreme Court’s 2022 Dobbs decision which restricts abortion and allows States to decide their abortion laws.

In an Order signed on June 17, 2024, the Court found against the EEOC and granted a preliminary injunction to prevent it from investigating any claims that an employer failed to accommodate a pregnant employee for receiving an elective abortion. The Court concluded that the EEOC exceeded its authority by including elective abortions in its list of accommodation-triggering conditions.

The Court determined that the EEOC’s final rule exceeded the agency’s authority and impacted states’ ability to regulate their own abortion laws. Mississippi and Louisiana, through the legislative process, voted to oppose purely elective abortions and enacted laws reflecting that decision. The EEOC’s regulation requiring employers to accommodate workers for actions contrary to these state decisions was viewed as exceeding its authority as an agency. Furthermore, the Court reasoned that the PWFA’s abortion accommodation requirement would not have been passed by Congress had it been presented to it.

In relation to the claims brought by religious groups, the Court found that the EEOC’s rule would force these groups into a tough dilemma: to either violate their religious convictions or to endure a lengthy EEOC investigation that would present, in the best-case scenario, added compliance costs and regulatory burdens. The consequences of the final rule’s elective abortion accommodations requirement on the independence of both states and religious groups were sufficient grounds, according to the Court, for a ruling against the EEOC.

Other States’ Decisions: No Standing to Challenge the Rule

Conversely, a federal court in Arkansas determined in States of Tennessee, Arkansas et al. v. Equal Employment Opportunity Commission, that 17 states’ attorneys general did not have standing to challenge the EEOC’s final rule under the PWFA. In Tennessee and 16 other states, attorneys general filed a suit challenging the elective abortion aspects of the final rule, seeking a nationwide injunction to prevent the entire regulation from taking effect. Specifically, the States argued that the final rule violates the Constitution, administrative law, and “rests on flawed reasoning.” In many of the states that challenged the rule, elective abortions are illegal, so the States pointed to policy reasons in support of their case. The court rejected the States’ arguments, finding that they did not demonstrate that any harm would actually result from the enforcement of the final rule. Notably, that Court stated that the likelihood of an employee asking for an accommodation for having an elective abortion, in the face of its illegality in those states, is very low.

Other jurisdictions followed suit. On June 26, the Eighth Circuit held in a one-page order that other States’ request for an injunction preventing the enforcement of the final rule was denied. The States’ argued what every other plaintiff seeking an injunction against the rule argued: that the rule’s abortion regulations contradict many states’ laws. These states referenced the recent Louisiana decision, issued just days prior, to support their arguments. However, the Eighth Circuit Court dismissed these arguments without providing a detailed explanation, unlike other courts.

Impact on Employers

The EEOC’s final rule interpreting the PWFA took effect on June 18, 2024. Before the final rule was promulgated, there were no accommodations required for employees for undergoing elective abortions. As a result of the Louisiana decision, the states of Louisiana and Mississippi, as well as any employer whose primary location of business is in either of those states, will not have to accommodate employees who elect to have an abortion. However, the split-decisions in courts across the U.S. indicate that the applicability of the final rule may change. These mixed decisions indicate that the requirements for employers to comply with the final rule may vary depending on their jurisdiction. Employers should ensure that they follow the accommodation requirements of the PWFA, including those described in the final rule, by checking individual state guidelines and keeping up with any further challenges to the regulation.

Impact on Employees

The purpose of the PWFA is to ensure healthy pregnancies for America’s working mothers by allowing them the chance to ask for and enjoy reasonable accommodations without implication. The EEOC’s final rule provided guidance as to how the PWFA should be applied. Louisiana’s decision interpreting the final rule makes clear (via footnote) that women who are required to undergo an abortion for a medical necessity will still be able to obtain accommodations. This decision indicates that employees may need to consult their state’s laws to understand the available accommodations for elective abortions.

Key Takeaways

These conflicting decisions indicate that the future of the abortion-accommodations sections of the final rule may be subject to change. As of now, the PWFA, as interpreted by the EEOC’s final rule, is in full effect in every state except Mississippi and Louisiana. Employers should be aware that this regulation requires them to give reasonable accommodations for elective abortions, and employees should know that they are entitled to such accommodations.

The challenges to the final rule will certainly continue through the legal system until the issues raised are conclusively resolved. Quite noteworthy is that the landscape for adjudicating the scope of an administrative rule such as those promulgated under the PWFA by the EEOC changed with the U.S. Supreme Court’s recent overturning Chevron. The rules promulgated by agencies such as the EEOC will no longer be entitled to deference to its decisions, as had been the case for the past forty years.