On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) finalized its regulations implementing the Pregnant Workers Fairness Act (PWFA).

The PWFA, which passed with bipartisan support in December 2022, filled a gap in employment law by providing accommodations for pregnant women in the workplace. The Act requires employers to provide “reasonable accommodations” to an employee’s “known limitations related to the pregnancy, childbirth, or related medical conditions” unless the accommodation would “impose an undue hardship” on the operation of the employer’s business.

The PWFA directed the EEOC to issue regulations to implement the Act. In August 2023, the Commission issued proposed regulations, which I summarized here. After reviewing over 100,000 comments, the Commission voted 3-2 along party lines to approve the final rule.

Republican Commissioner Andrea Lucas, who had voted in favor of the proposed rule, voted against the final rule. She issued a statement on her vote, accusing the Commission of using “linguistic gymnastics and a simple sleight of hand” to make the law “considerably more complicated and controversial.” Lucas’s statement focused primarily on her disagreement with the Commission’s broad interpretation of the phrase “pregnancy, childbirth, or related medical conditions.”

Broad Definition of “Pregnancy, Childbirth, or Related Medical Conditions”

In the final rule, the Commission adopted its proposed definition of “pregnancy, childbirth, or related medical conditions,” declining to modify its “non-exhaustive list” of covered conditions. This list controversially includes past pregnancy, potential or intended pregnancy, infertility, fertility treatment (including IVF), menstruation, the use of contraception, and abortion.

Disregarding comments pointing out that its list covers medical procedures which are not the same as medical conditions, the Commission reiterated multiple times in the final rule that its interpretation is “consistent with the PWFA’s text and the Commission’s interpretation of identical language in Title VII, an interpretation adopted more than 40 years ago.”

The Commission disregarded the fact that the PWFA is a standalone law that did not amend Title VII. Further, the Commission ignored the differences between a nondiscrimination law (Title VII) and an accommodation law (PWFA), which former EEOC general counsel Sharon Fast Gustafson and I discussed here.

In response to commenters who pointed out that courts don’t always agree with EEOC’s pregnancy guidance or with each other about which conditions are qualifying “pregnancy, childbirth, or related medical conditions” under Title VII, the EEOC brushed aside contrary caselaw, emphasizing that whether a condition is covered for a particular employee will be “fact-specific” and a “case-by-case determination.”

Abortion Accommodation Mandate

Perhaps the most controversial aspect of the rule is the requirement to accommodate abortion. “Abortion” is mentioned nearly 350 times in the final rule, over three times more than the terms “woman” and “women.”

The vast majority of comments addressed the proposed abortion accommodation mandate, with approximately 54,000 comments in opposition and 40,000 comments in support.

Undeterred, the Commission doubled down on its mandate, claiming abortion accommodations are required “[b]ased on well-established rules of statutory interpretation.” According to the rule, for “nearly 45 years” and “consistent with the plain language of the statute, congressional intent, and Federal courts’ interpretation of the statutory text,” the Commission has interpreted the phrase “pregnancy, childbirth, or related medical conditions” under Title VII to cover abortion decisions. As such, the Commission must interpret the PWFA the same way. To do otherwise would “not be consistent with Congress’ intent” and would likely “exceed the Commission’s congressionally delegated authority.” Indeed, to adopt a definition that excluded abortion “would be taking a novel stance” and raise concerns under the major questions doctrine.

The Commission dismissed the unique legislative history of the PWFA, where both Republican and Democrat Senate co-sponsors of the Act disclaimed that the PWFA requires abortion accommodations during floor debate. Instead, the Commission supported the rule’s abortion accommodation mandate by citing to the plain text of the PWFA, the Commission’s non-legally binding Title VII pregnancy guidance, and “courts’ long history of interpreting those identical words to include abortion”—which consists of two circuit court and two district court pre-Dobbs decisions.

Dismissive of Religious Liberty Concerns

The Commission was broadly dismissive of concerns raised by religious and pro-life employers, pointing generally to the availability of religious defenses such as the PWFA’s incorporation of Title VII’s religious organization exemption, the Religious Freedom Restoration Act, and the First Amendment. The rule is quick to point out that any application of these defenses is on a “case-by-case basis,” and EEOC religious defense determinations are not controlling in any subsequent litigation.

Regarding abortion, the Commission emphasized that the PWFA does not require anyone to have, pay for, or provide an abortion, ignoring that many who oppose abortion are opposed to facilitating abortion including through a workplace accommodation.                                   

The Commission failed to appreciate that Title VII, unlike EEOC’s PWFA regulations, does not mandate abortion accommodations. The rule dismissively stated that in the Commission’s “historical experience, in more than four decades of enforcing Title VII . . . very few employers have actually faced a situation where an employee is expressly requesting leave for an abortion and the employer declines to grant the leave on religious or moral grounds.”

Fulfilling EEOC’s Title VII and ADA Wish List

When Congress gave EEOC rulemaking authority under the PWFA, the Commission saw it as an opportunity to get its wish list of legal positions that it has been unable to achieve under Title VII and the ADA, laws under which the EEOC does not have substantive rulemaking authority. Commissioner Lucas argued in her statement that “the Commission could not resist the temptation to ‘interpret’ into the PWFA all the components it has long desired to complement its administrative gloss on Title VII and the ADA.”

EEOC’s wish list, now a reality in the PWFA rule, includes requiring expansive leave and limiting the ability of an employer to request supporting documentation.

EEOC will likely use the PWFA rule to promote its preferred legal positions in Title VII and ADA litigation. Just as the EEOC cited Title VII in support of its definition of the phrase “pregnancy, childbirth, or related medical conditions,” the Commission will cite its PWFA rule (and any subsequent caselaw) to inform application and enforcement of Title VII and the ADA.

Texas’s Quorum Clause Constitutional Challenge

After the PWFA became law, the state of Texas sued the EEOC claiming the PWFA violated the Quorum Clause, a little-known provision of the U.S. Constitution that requires a majority of House or Senate members to be physically present to constitute the necessary quorum to pass legislation. When the House voted to pass the PWFA, only 205 members voted in person and the rest voted by proxy, falling short of the 218 members needed for a quorum.

After the proposed rule, but before the final rule, a federal district court permanently enjoined enforcement of the PWFA by the EEOC or Department of Justice as to the state of Texas. The EEOC appealed to the Fifth Circuit.

Although the injunction only applies to Texas and regardless of how the Fifth Circuit rules, employers will likely raise the Quorum Clause as a defense to any PWFA claims until the issue is resolved by the Supreme Court or unanimous consensus of the circuit courts.

Seventeen States Challenge EEOC’s PWFA Rule

Soon after the PWFA rule was finalized, Tennessee and Arkansas led a coalition of 17 States (Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia) in suing the EEOC over its PWFA rule, particularly its abortion accommodation mandate.

The states argued in their complaint that the rule violates the Administrative Procedure Act and the Constitution. Specifically, the rule contravenes the PWFA, is arbitrary and capricious, and violates federalism, state sovereignty, and the First Amendment. The states sought a declaratory judgment that the PWFA does not authorize the EEOC to impose the rule’s abortion accommodation mandate.

In conjunction with the PWFA-specific claims, the states also challenged EEOC’s status as an “independent federal agency,” arguing that its independent structure violates Article II and the separation of powers.

A federal district court in Arkansas will likely hear oral argument in late May or early June.

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