Federal District Court Enjoins EEOC from Implementing Part of the Final Rule Under the Pregnant Workers Fairness Act as It Relates to Elective Abortions

June 24, 2024

By: Stephen B. Stern

     In State of Louisiana v. Equal Employment Opportunity Comm’n, Civil Docket No. 2:24-cv-00629 (W.D. La. June 17, 2024), the United States District Court for the Western District of Louisiana held that the Equal Employment Opportunity Commission (“EEOC”) exceeded its statutory authority to implement the Pregnant Workers Fairness Act (“PWFA” or “Act”) and, as a result, it issued a preliminary injunction against the EEOC that prevents the EEOC from implementing the final rule it issued regarding the PWFA as it relates to elective abortions.

     The decision came in a consolidated action in which one lawsuit was filed by the States of Louisiana and Mississippi and another lawsuit was filed by four entities affiliated with the Roman Catholic Church (the four entities are the 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).  The plaintiffs filed a motion for a preliminary injunction, seeking to enjoin the EEOC from implementing only those portions of the final rule it issued regarding the PWFA that concerned elective abortions.  

     The PWFA requires employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions to a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”  The Act defines “known limitation” as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”  The PWFA effectively prevents employers from requiring a qualified employee “to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitation.”  The final rule issued by the EEOC stated that having an abortion constitutes an “example[] of pregnancy, childbirth, or related medical condition” and employers are required to provide reasonable accommodations for employees who have abortions.

     The states argued that they will suffer imminent injury if the final rule is implemented because of increased regulatory burdens, increased compliance costs under penalty of enforcement actions, and damage to their sovereignty and free speech rights.  The EEOC challenged the states on standing grounds, arguing that their alleged injuries were speculative, any compliance costs were unproven, the final rule does not interfere with enforcement of any state laws, and the state have not demonstrated any speech injury.  The states, however, provided evidence that they will incur an estimated $500 and 120 employee hours in training costs, legal expenses, administrative costs, and productivity losses.  The court found that besides DOJ enforcement suits, the states had demonstrated “[m]oving into compliance” would result in cognizable and sufficient injuries to support standing.  Further, the court found that the final rule would interfere with the states’ enforcement of their laws.  In this regard, the court found that “the people of both Mississippi and Louisiana, through the democratic process, have unambiguously expressed their opposition to purely elective abortions by passing laws prohibiting the same[,]” and the final rule’s application with respect to purely elective abortions “undermines their sovereignty and the democratic process within those states[,]” which establishes Article III standing.

     As for the church plaintiffs, they argued that the final rule would make them knowingly violate their sincerely held religious beliefs regarding the “moral evil” of abortion or risk liability and years’ long litigation both with the EEOC and private parties and this harm would be immediate because of the need to undertake an immediate change in their employment policies to avoid non-compliance.  The EEOC again argued that the harm was speculative and noted that the church plaintiffs did not identify any employee who has sought an accommodation or who has filed a charge with the EEOC for denying a request for an accommodation.  The court found that the EEOC’s arguments were previously rejected by the United States Court of Appeals for the Fifth Circuit in Brainwood Mgmt., Inc. v. Equal Employment Opportunity Comm’n, 70 F.4th 914 (5th Cir. 2023), and opted to follow that precedent.

     The court then proceeded to find that the plaintiffs are likely to succeed on the merits (one of the criteria to issue a preliminary injunction).  The court found that “Congress could [not] reasonably be understood to have granted the EEOC the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs [v. Jackson Women’s Health Org., 597 U.S. 215 (2022)] – to provide workplace accommodations for the elective abortions of employees.”  As a result, because the EEOC inserted the issue of abortion in the final rule, the court found that the EEOC implicated the “major questions doctrine,” which applies when “an agenc[y] assert[s] highly consequential power beyond what Congress could reasonably be understood to have granted.”  Under this principle, courts should expect Congress, not administrative agencies, to speak to such issues which have vast economic and political influence.

     The court addressed some other arguments related to the likelihood of success on the merits and proceeded to find that the plaintiffs satisfied the other elements required to issue a preliminary injunction (a substantial threat of irreparable injury and balancing the equities and public interest).  As to the issue of balancing of the equities and public interest, it is noteworthy that the court noted that “of course, the [c]ourt’s decision in this matter in no way limits, impedes, or otherwise affects those covered employers who choose to implement employment policies or practices to provide leave or other workplace accommodation[s] for the elective abortions of employees.”  In other words, the court’s ruling did not preclude any employer from voluntarily complying with the requirements of the final rule as it relates to elective abortions.  

     In issuing the injunction, the court limited its scope to (1) the States of Louisiana and Mississippi and any agencies of those States, (2) any covered entity under the final rule but with respect to those employees whose “primary duty station” is located Louisiana or Mississippi, and the church plaintiffs.

     The court’s decision in State of Louisiana is significant in that it enjoins, at least preliminarily, the enforcement of the EEOC’s final rule under the PWFA with respect to elective abortions.  Although the injunction is limited to employees of States of Louisiana and Mississippi (and their respective agencies), covered private employers with respect to employees whose “primary duty station” is located in Louisiana or Mississippi, and the various church entities that sued, the court’s ruling presents a potential roadmap for potential plaintiffs to file suit in other states and it is not entirely clear in every instance in which state an employee’s “primary duty station” is located, especially with the rise in remote work arrangements.  Thus, several employers who do not intend to provide accommodations for employees who seek elective abortions may face lawsuits to determine the location of certain employees’ primary duty stations.  At the same time, if employers opt to provide accommodations to employees who have elective abortions, nothing in this court ruling is preventing those employers from taking that action.  Employers affected by this ruling should continue to monitor this case, as it likely will be addressed further on appeal.