When Dobbs v. Jackson Women’s Health Organization (2022) was decided, the issue of abortion regulation was returned to the states. This gave rise to a patchwork of new restrictive state abortion laws leading to inevitable conflicts between state and federal regulation.

The Equal Employment Opportunity Commission’s (EEOC) final regulation implementing the Pregnant Workers Fairness Act (PWFA) is just one example of such federal/state conflict. The PWFA requires covered employers to provide reasonable accommodations for pregnant workers to perform their essential job functions unless doing so would result in undue hardship. The EEOC’s final rule provided clarity on the PWFA’s definition of “pregnancy, childbirth, or related medical conditions” by confirming that infertility, menstruation, endometriosis, fertility treatments, miscarriages, and abortions all fell within the scope of protections. 

Since abortion was listed as a “related medical condition,” 17 Republican attorneys general filed a lawsuit alleging that the EEOC’s interpretation of the PWFA creates an unconstitutional “abortion accommodation mandate,” even in states where abortion is illegal. 23 Democratic attorneys general filed an amicus brief defending the EEOC’s final regulation and emphasizing the PWFA’s critical workplace protections for pregnant and postpartum workers. Two additional Republican attorneys general then filed a separate lawsuit alleging that the EEOC exceeded its authority by adopting a regulation extending the PWFA to abortions, prompting a federal court in Louisiana to preliminarily enjoin the regulation. 

Pregnant Workers Fairness Act 
The PWFA requires employers with 15 or more employees to provide reasonable accommodations for “pregnancy, childbirth, or related medical conditions” unless doing so would result in undue hardship. The PWFA aims to fill the gaps between Title VII’s discrimination protections for pregnant workers, the Americans with Disabilities Act’s (ADA) discrimination protections for disabled workers, and the Family Medical Leave Act’s (FMLA) provision of unpaid, job-protected leave for certain family and medical reasons. 

In the interim, many states enacted their own laws providing accommodations and protections to pregnant workers. Notably, the PWFA does not replace federal, state, or local laws that are more protective of pregnant workers. In addition, it only applies to accommodations, since other federal and state laws, including Title VII, address discrimination against workers based on pregnancy, childbirth, or related medical conditions. 

The EEOC’s final regulation provides guidance to employers on how to meet obligations under PWFA and to employees about their rights. The EEOC’s guidance under the PWFA includes:

• Examples of possible reasonable accommodations under the PWFA;
• Identification of a limited number of modifications that most likely constitute a reasonable accommodation, such as allowing an employee to keep or carry water nearby and to take additional restroom breaks;
• Guidance on resolving reasonable accommodations requests;
• Clarification that an employer does not need to seek supporting documentation for reasonable accommodation requests; 
• Guidance on conditions that fall within “pregnancy, childbirth, or related medical conditions;” and
• Explanation of when an accommodation would create undue hardship on an employer. 

The EEOC’s final regulation contextualized the inclusion of abortion among the conditions that fall within “related medical conditions” by stating that the PWFA is a workplace discrimination law and, as such, does not require an employee to have an abortion nor require an employer to pay for abortions or travel-related expenses for an employee’s abortion. Given these restrictions, the EEOC indicated that the most likely abortion-related accommodation sought under the PWFA would be time off to attend a medical appointment or for recovery. Additionally, like the ADA, the PWFA does not require paid leave for an accommodation. The EEOC further confirmed that the inclusion of abortion in the PWFA’s definition of “pregnancy, childbirth, or related medical conditions” is meant to be consistent with the EEOC’s and courts’ longstanding interpretation of the same phrase in Title VII. 

State of Tennessee et al. v. Equal Employment Opportunity Commission

17 Republican attorneys general filed a lawsuit against the EEOC in federal court on April 25, 2024. The plaintiff states, led by Attorneys General Jonathan Skrmetti of Tennessee and Tim Griffin of Arkansas, argued that the PWFA was not intended to accommodate abortions and that requiring employers within the plaintiff states to accommodate elective abortions would irreparably harm those states. 

In addition, the plaintiff states argued that the EEOC’s final regulation is:

• Invalid under the Administrative Procedure Act since the EEOC exceeded its authority with the abortion accommodation; and
• Unconstitutional under the First, Tenth, and Fourteenth Amendments.

As a result, the plaintiffs requested a stay and a preliminary injunction of the EEOC’s final regulation implementing the PWFA.

Democratic Attorneys General File Amicus Brief Defending EEOC’s Regulation Implementing the PWFA

A coalition of 23 Democratic attorneys general, led by New York Attorney General Letitia James, filed an amicus brief defending the EEOC’s final regulation on the PWFA. Highlights from the amicus brief include the following arguments:

• There is a mismatch between the plaintiffs’ limited legal challenge against a minor portion of a regulatory definition and the broad relief they are seeking in asking the court to stay the enforcement date of the entire regulation;
• The PWFA provides critical workplace protections for pregnant and postpartum workers, particularly low-wage and workers of color; and
• The plaintiffs grossly overstate the consequences of the EEOC’s rule since nothing in the regulation requires employers to pay for an employee’s abortion or to enable abortions that are illegal under state law. 

In addition, the amicus brief reiterates the EEOC’s statement that the final regulation does not require employers to pay for or enable abortions that are illegal under state law. 

Oral argument on the preliminary injunction was heard on June 3, 2024. On June 14, 2024, the District Court in the Eastern District of Arkansas dismissed the case without prejudice based on standing. The court explained that, even if it were to consider the merits of the case, the plaintiff states were not entitled to an order enjoining the EEOC’s final regulation because they had not shown a likelihood of irreparable harm. In addition, the court emphasized that the inclusion of abortion as a “related medical condition” is consistent with the EEOC’s almost five-decades-long interpretation of the phrase and, as a workplace accommodation law, does not affect each state’s regulation of abortion within their boundaries.

State of Louisiana et al. v. Equal Opportunity Employment Commission

This outcome, however, does not mark the end of this issue. The Republican attorneys general of Louisiana and Mississippi and the United States Conference of Catholic Bishops brought additional challenges to the EEOC’s final regulation in the Western District of Louisiana. On June 17, 2024, the federal district court hearing those consolidated cases issued a preliminary injunction of the EEOC’s final regulation. In so doing, the court implicitly disagreed with the Eastern District of Arkansas on the standing and irreparable harm holdings.

It remains to be seen whether the losing parties in either case—the plaintiff states in the Arkansas action or the EEOC in the Louisiana action—will pursue appeals. Nonetheless, in light of the dueling litigations and recent high-profile appeals of abortion-related administrative actions to the Supreme Court, likely, we have not heard the final word on the EEOC’s final regulation. 

Foley Hoag Summer Associate Ariel Chen contributed to this post.