Abortion Nod in EEOC Pregnancy Rule Draws Conflicting Decisions

Conflicting court decisions are sowing confusion over the legality of EEOC regulations requiring employers to provide workers with abortion-related accommodations under a federal pregnancy bias law, particularly in cases involving potential religious exemptions.

A Louisiana federal court on June 17 shielded employers in that state and Mississippi, along with a group of Catholic organizations, from a mandate in the Pregnant Workers Fairness Act final regulations to provide reasonable accommodations such as time off to workers seeking elective abortions.

Days earlier, a federal court in Arkansas found a coalition of Republican state attorneys general lacked legal standing to challenge the same mandate.

The US Equal Employment Opportunity Commission included abortion as one of several covered pregnancy-related medical conditions in its final PWFA rule, which went into effect June 18. While the Arkansas and Louisiana rulings on the issue apply narrowly, the latter case’s initial success shows that religious freedom claims might carry weight in future arguments against the regulation.

“The swath of challenges to the rulemaking by the EEOC only serves to put more workers in a position where they are unsure of what their rights are and to increase confusion” for workers and employers alike, said Laura Narefsky, senior counsel at the National Women’s Law Center. “The Pregnant Workers Fairness Act itself is a relatively straightforward law that was passed with a reasonable amount of bipartisan support.”

The US District Court for the Western District of Louisiana agreed with the plaintiffs that the EEOC likely exceeded its authority in its abortion-related PWFA rule.

Congress didn’t address abortion in the bipartisan legislation passed in 2022. Sen. Bob Casey (D-Pa.), a leading supporter of the bill, told colleagues at the time that he didn’t expect the EEOC to include abortion accommodations.

Pregnancy-related accommodations under the law as a whole could include extra breaks, remote work, or temporary reassignments, according to the EEOC rules finalized in April.

‘Perfect Storm’

An accommodation specifically related to abortion is likely to encompass nothing more than time off from work, said Christine Bestor Townsend, an employment attorney with Ogletree Deakins.

“If you’re seeking an elective abortion, you’re likely to say, ‘I need time off for a medical reason,’” without being more specific, she said.

Although a small part of the commission’s overall regulation, the abortion issue attracted input from more than 96,000 of the 100,000-plus members of the public who filed comments with the EEOC while the agency was finalizing its rules, with many arguing against its inclusion.

Employment attorneys said it’s important to note that the litigation filed against the PWFA rules only addresses the narrow issue of elective abortions, leaving the law’s other requirements intact.

“The rest of the PWFA has not been enjoined by any court, and employers need to remember that this affects only that narrow issue of elective abortion in those states,” Townsend said.

Businesses and advocacy groups overall are challenging federal agency actions as administrative overreaches more frequently, said Gerald Maatman, an employment attorney at Duane Morris LLP.

The litigation over the EEOC’s PWFA regulations is one small part of a “perfect storm going on right now,” he said.

The latest rulings come as the US Supreme Court is soon expected to issue a ruling severely weakening the Chevron doctrine, which gives broad deference to the expertise of federal agencies to interpret statutes that fall under their purview.

The US Labor Department already has begun shifting its legal strategy to avoid relying on Chevron deference in defending its latest regulations on overtime pay and tipped workers.

The extent to which the Supreme Court guts Chevron could play a role in the outcome of those cases on appeal, Maatman said.

The EEOC deferred a question about its plans for appeal to the Justice Department, which is representing the agency, and DOJ declined to comment.

Religious Exemptions

While the Louisiana and Mississippi attorneys general challenged the PWFA rule largely on Administrative Procedure Act grounds, the Catholic organizations contended the rule would infringe on their religious freedom by requiring them to support a worker’s choice to have an abortion.

Federal law already accounts for various religious objections to anti-bias mandates, such as through the Religious Freedom Restoration Act of 1993 and the ministerial exception under Title VII of the 1964 Civil Rights Act. Courts historically have required a case-by-case analysis to determine when those exemptions apply, Narefsky said.

“Nothing in the Pregnant Workers Fairness Act did anything to upend, alter, eliminate, or narrow existing exemptions for religious employers from complying with certain workplace discrimination laws,” she said. “What these employers are saying is the fact they have to go to court and articulate why they should be exempt is too much of a burden for them.”

The Louisiana federal court sided with the Catholic groups on this point, saying the EEOC rule sets a higher legal bar for employers to claim religious exemptions than the language of the PWFA itself. The organizations told the court their religious beliefs demand that they deny accommodations related to elective abortions and terminate or otherwise discipline any employee who chooses to have one.

“EEOC failed to include a broad religious exception in the Final Rule,” Judge David C. Joseph wrote in the decision. The Catholic groups successfully argued for an injunction by showing they would face a burden via “protracted investigations and litigation concerning the applicability of religious exceptions,” he said.

RFRA could be another path for some employers to seek exemptions from the EEOC’s abortion accommodation rules, if a future court doesn’t block them entirely. That law bars the government from “substantially burdening” a person’s religious freedom.

The Supreme Court extended RFRA’s protections to cover for-profit, closely held companies acting in accordance with their owner’s beliefs in its 2014 decision Burwell v. Hobby Lobby Stores, Inc. The craft store chain argued it shouldn’t have to provide health coverage for contraceptives as required by the Affordable Care Act.

More recently, the US Court of Appeals for the Fifth Circuit in 2023 largely affirmed a ruling exempting a for-profit employer from LGBTQ+ bias protections under Title VII, based on the employer’s arguments under RFRA.

If the EEOC appeals the Louisiana court’s injunction, that case would also go to review at the Fifth Circuit, a court with a large number of Trump-appointed judges and a penchant for overturing Biden administration regulations.

For most large employers that don’t have a religious objection, the abortion accommodation mandate isn’t likely to be a significant burden, Townsend said.

The litigation over the EEOC rule, she said, “is largely an ideological fight.”