On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect. Under the PWFA, a covered employer with 15 or more employees is required to provide a reasonable accommodation to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. The PWFA also prohibits retaliating against an employee for requesting or using reasonable accommodation and also restricts an employer from requiring an employee to use paid or unpaid leave if another reasonable accommodation is available.
The EEOC was tasked with issuing regulations to carry out the PWFA. In April 2024, the EEOC issued its final regulation (Final Rule), specifically including a mandate that requires covered employers to provide employees with reasonable accommodations for elective abortions (Abortion Accommodation Mandate). The Final Rule, including the Abortion Accommodation Mandate, went into effect on June 18, 2024.
The Abortion Accommodation Mandate has been the subject of multiple challenges by states and religious organizations alike. For example, in Louisiana v. EEOC, 2:24-cv-000629 and United States Conference of Catholic Bishops et al. v. EEOC, 2:24-cv-00691, the Western District of Louisiana consolidated cases filed by the states of Louisiana and Mississippi and four Catholic Plaintiffs (United States Conference of Catholic Bishops, Society of the Roman Catholic Church of the Diocese of Lake Charles, Society of the Roman Catholic Church of the Diocese of Lafayette and Catholic University of America) and granted a preliminary injunction.
The States argued the people of Louisiana and Mississippi, through the democratic process, have expressed their opposition to elective abortions by passing laws prohibiting the same. According to both States, the Abortion Accommodation Mandate undermined the sovereignty and democratic processes within those States. The Catholic Plaintiffs argued that the Abortion Accommodation Mandate requires them to knowingly accommodate employees when they obtain abortions even where such accommodations are contrary to their sincerely held religious beliefs; prohibits them from taking adverse actions against employees or faculty that advocate for the abortion accommodation, even when such actions are required by their religious beliefs; and requires them to change their religious speech and messaging concerning abortion in ways that support abortion.
The Court enjoined enforcement of the Abortion Accommodation Mandate as in the States of Louisiana and Mississippi and as to the Catholic Plaintiffs. As to the States, the Court held that the EEOC “exceeded its statutory authority to implement the PWFA, and in doing so both unlawfully expropriated the authority of Congress and encroached upon the sovereignty of the States Plaintiffs.” As to the Catholic Plaintiffs, the Court agreed with their argument that the EEOC’s Final Rule, which required a case-by-case approach to any asserted religious defense, “does not square with the PWFA” which fully incorporated the religious exemption found in Title VII. The injunction postpones the effective date of the EEOC’s final rule with respect to the states of Louisiana and Mississippi and the Catholic Plaintiffs and their members pending final judgment in the consolidated cases.
In contrast, challenges by other states have been less successful. In Tennessee v. EEOC, 2:24-cv-84-DPM, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia sought a preliminary injunction to prevent the elective abortion accommodation mandate from taking effect and requested that the court declare it as unlawful. The United States District Court for the Eastern District of Arkansas denied the States’ motion for preliminary injunction primarily for two reasons: lack of standing and no evidence of a likelihood of irreparable harm. More specifically, because the states claimed only that they faced imminent injury instead of any actual harm, they were unsuccessful. Further, the Court was unpersuaded by the two kinds of irreparable harm alleged by the States – sovereign harm and economic harm. The Court held that neither presented a “clear and present need for equitable relief.” The Court dismissed the States’ complaint without prejudice. The States have filed a Notice of Appeal.
Thus, the EEOC’s Final Rule under the PWFA is still in a state of flux and experiencing ongoing challenges. Employers outside of Louisiana and Mississippi remain subject to the EEOC’s Abortion Accommodation Mandate unless they are members of the religious entities for which a preliminary injunction has been granted or have similar religious objections, which may be raised pursuant to Title VII’s religious defense or the Religious Freedom Restoration Act.
The EEOC’s guidance can be accessed through this link. For information regarding what employers should know about the PWFA, the abortion accommodation mandate, religious defenses/objections thereto, please contact UBG’s Employment and Labor Group.
Vivian Washington, UB Greensfelder summer associate, contributed to this article.
