In another departure from regulations and guidance issued during the Biden administration, in May, a federal judge in Louisiana found that the U.S. Equal Employment Opportunity Commission (EEOC) had exceeded its statutory authority by requiring employers to reasonably accommodate elective abortions.
Vacating what it termed the “abortion accommodation mandate,” the district court removed elective abortions from the scope of pregnancy-related medical conditions covered by the federal Pregnant Workers Fairness Act (PWFA). The decision is indicative of the increased scrutiny placed on abortion-related regulations in the three years since the Supreme Court overturned Roe v. Wade.
The EEOC’s acting chair, Andrea Lucas, has openly criticized the abortion accommodation requirement. As such, the Trump-era EEOC is unlikely to appeal the ruling and insist that employers reasonably accommodate elective abortions, although other courts with related pending cases have yet to weigh in. At present, employers must still comply with surviving accommodation requirements under the PWFA—including accommodating abortions that stem from the treatment of medical conditions—and must afford other protections to pregnant employees under applicable law.
EEOC’s Final Rule on Abortion Accommodations Under the PWFA
In April 2024, the EEOC issued a final rule respecting abortion accommodation under the PWFA, impacting employment law. The final rule required employers with 15 or more employees to reasonably accommodate a qualified applicant’s or employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or “related medical conditions,” unless the accommodation would pose an undue hardship.
Despite receiving approximately 54,000 comments urging the agency to exclude abortion from the definition of “related medical conditions,” the final rule ultimately provided that “termination of pregnancy, including via miscarriage, stillbirth, or abortion,” fell within that term’s scope. The EEOC contended that including abortion as a “related medical condition” was consistent with its interpretation of the same term under Title VII of the Civil Rights Act of 1964, which in part prohibits employment discrimination based on pregnancy, childbirth, or related medical conditions.
As a result, the final rule required employers to reasonably accommodate employees who receive an abortion, absent undue hardship, and prohibited them from taking adverse employment actions against individuals who requested or used such accommodations under the PWFA.
The final rule was set to go into effect on June 18, 2024, but within a month of its issuance, it was subject to multiple legal challenges. Two lawsuits—one by the states of Mississippi and Louisiana, and the other by the United States Conference of Catholic Bishops, the Catholic University of America, and a pair of societies associated with the Catholic Church—were consolidated for purposes relevant to this article. Those lawsuits are referred to collectively here as Louisiana v. EEOC.
Federal Court Decision in Louisiana v. EEOC Strikes Down Abortion Rule
In Louisiana v. EEOC, the Western District of Louisiana found that the PWFA’s “abortion accommodation mandate” was unconstitutional and unlawful on multiple bases. Holding that the states of Louisiana and Mississippi had standing to challenge the final rule, the court asserted that the mandate encroached on their state sovereignty, because duly enacted legislation in those states prohibited abortions except in certain cases.
In reaching its ultimate decision, the court ruled that the EEOC had exceeded the authority afforded to it by Congress under the Administrative Procedures Act by extending the PWFA to abortions. It asserted that the PWFA itself does not reference abortion, and does not expressly incorporate the provision in Title VII that had been interpreted to reach abortion, such that the final rule could not be a “lawful extension” of the PWFA. The court also found that the final rule ran afoul of the “major questions doctrine,” which prohibits administrative agencies from regulating issues of economic and political significance without clear congressional directive.
As result, the court vacated the portions of the final rule that included abortion within the scope of covered “related medical conditions” and required employers to provide employees with an accommodation for purely elective abortions, as opposed to abortions necessary to treat a medical condition related to pregnancy. The court then remanded the matter to the EEOC to act consistent with its findings.
Key Takeaways for Employers
Despite the district court’s decision to strike down PWFA protections for purely elective abortions, employers still have a duty to reasonably accommodate applicants’ and employees’ pregnancies, childbirths, and related medical conditions under the PWFA, including abortions necessary to treat a medical condition.
Employers may also be subject to other employment discrimination laws, such as the Americans with Disabilities Act, which may require them to grant accommodations relating to pregnancy, childbirth, and related medical conditions. Employment discrimination laws—like Title VII and certain state and local analogs—also afford protections against discrimination, harassment, and retaliation on a similar basis. As noted above, for Title VII purposes, the term “related medical conditions” has also been interpreted to preclude discrimination based upon abortion.
Given the complexity of the obligations in this context, employers with questions regarding the Pregnant Workers Fairness Act—or their responsibilities to reasonably accommodate applicants or employees under federal, state, and local law—are invited to contact the authors of this article or any other attorney in Venable’s Labor and Employment Group.