17 states sue to block the EEOC from greenlighting abortion leave under the Pregnant Workers Fairness Act


From the time it proposed regulations to implement the Pregnant Workers Fairness Act to when it issued a final rule earlier this month, the U.S. Equal Employment Opportunity Commission received approximately 54,000 comments urging it to exclude abortion from the definition of “pregnancy, childbirth, or related medical conditions.”

The EEOC did not oblige.

And now, 17 states are suing.

Vin Gurrieri at Law360 reports that the plaintiffs allege that the “EEOC unconstitutionally exceeded the PWFA’s limits by taking the stance in final regulations published April 19 that the law encompasses abortion.”

Specifically, the plaintiffs allege that “a bare 3-2 majority of unelected commissioners at the Equal Employment Opportunity Commission (EEOC) seeks to hijack these new [PWFA] protections for pregnancies by requiring employers to accommodate workers’ abortions — something Congress did not authorize…even those electing abortions of healthy pregnancies that are illegal under state law.”

The plaintiffs note that one of the bill’s cosponsors, Democrat Bob Casey (PA), confirmed on the Senate floor that “under the [PWFA] … the EEOC, could not–could not— issue any regulation that requires abortion leave…[or] require employers to provide abortions in violation of state law.”

Consequently, the plaintiffs have asked an Arkansas federal judge to enjoin the EEOC’s final rule.

Will the plaintiffs succeed?

The Family and Medical Leave Act allows women who have an abortion to obtain leave for a serious health condition. Congress also talked about how the “basic language [of the Pregnancy Discrimination Act] covers decisions by women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.”

Other courts have reached the same conclusion. The Sixth Circuit agreed that firing a pregnant employee because she contemplated having an abortion violated the PDA. Other district courts (like this one and this one) concur.

The EEOC’s position under the PWFA is that “it does not regulate the provision of abortion services or affect whether and under what circumstances an abortion should be permitted. The PWFA does not require any employee to have—or not to have—an abortion … [and]  does not require reasonable accommodations that would cause an employer to pay any travel-related expenses for an employee to obtain an abortion.

Critically, the EEOC interprets “pregnancy, childbirth, or related medical conditions” to have the same meaning in the PWFA as it does under Title VII, which “since 1978, allow[s] employees affected by pregnancy, childbirth, or related medical conditions to use employer-provided leave in order to have time off to have an abortion.”

So, employers would generally need to accommodate under the PWFA, subject to undue hardship considerations and religious objections.

How this lawsuit will shake out is anyone’s guess. But, I’ll keep you updated.

The Employer Handbook Zoom Office Happy Hour will return on Monday, April 29, 2024, at Noon ET. My Pierson Ferdinand employment law partners, Ben Jacobs and Amy Epstein Gluck, will join me to discuss the FTC’s plan to ban most employee noncompetes, explore the Department of Labor’s proposed increase to the salary level for overtime exemptions, and answer your questions, which you can submit in advance here.

The Zoom is free, but space is limited. You can register for it here.

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