Court denies 17 states’ challenge to abortion leave under the EEOC’s pregnancy regulations

On Friday, a federal judge in Arkansas dismissed a lawsuit that 17 states had filed challenging aspects of the U.S. Equal Employment Opportunity Commission‘s final rule to implement the Pregnant Workers Fairness Act (PWFA)  — specifically the part that deals with “elective abortions.”

The PWFA requires most employers with 15 or more employees to provide “reasonable accommodations,” or changes at work, for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.

In their lawsuit, the States had no issue with the PWFA itself or most of the EEOC’s regulations. The states also acknowledged that some pregnant women will need, and be entitled to, workplace accommodation in connection with an abortion. Instead, the states sought an injunction because they believed that the EEOC exceeded its authority by requiring employers to accommodate elective abortions, i.e., “an abortion prompted exclusively by the woman’s choice, where no ‘physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. . .’ exists, but where getting the abortion creates some limitations on the employee’s ability to do her job. In the plaintiff States, these elective abortions, and almost all abortions, are illegal.”

The Court, however, concluded that the States lacked standing to challenge the EEOC for several reasons.

Among other things, the court reasoned that the States failed to demonstrate that the EEOC’s rule was likely to harm them through, for example, an imminent enforcement action. Indeed, the court found it highly unlikely that an employee would say to their employer, “I need time off to get an illegal abortion,” let alone mention anything about getting one in another state where abortion is legal.

The States also could not convince the court that enforcing the EEOC’s rule would impose additional compliance costs beyond those associated with other unobjectionable parts of the regulation. Plus, the substantive abortion laws in the States only regulate abortion providers. So, where’s the harm or the conflict between the States’ abortion restrictions and the EEOC’s rule, which does not regulate the provision of abortion services?

The court also noted that enjoining the regulation wouldn’t quell the open issue of whether the PWFA requires accommodations for abortions:

Pausing all or part of the regulation or its enforcement will not eliminate the deeper question: Does the Act itself require State employers to accommodate elective abortions that are illegal under State law? The relief requested from this Court will not prevent an aggrieved employee from filing such a charge, or trying to file one, or eventually asking a court that question.

For these reasons (and others), the court dismissed the lawsuit.

The EEOC’s final rule takes effect on June 18, 2024.