Abortion Inclusion in Pregnancy Rules Leaves EEOC Open to Suits

New Equal Employment Opportunity Commission rules that include abortion as a pregnancy-related medical condition position the civil rights agency for legal battles on employers’ religious rights and the scope of its own rulemaking authority.

The EEOC’s final regulations on the Pregnant Workers Fairness Act left in place a controversial definition of “related medical conditions” that drew backlash from employer groups and conservative lawmakers when it was initially proposed in August.

By including abortion with pregnancy, childbirth, lactation, miscarriage and other conditions that can trigger job accommodation rights, critics said the agency broadened the reach of the PWFA beyond Congress’ intent. Those criticisms, some of which were even echoed publicly by an EEOC commissioner, could percolate into legal action that would put a damper on one of the agency’s most high-profile rulemakings in recent years.

“It’s a Petri dish for growing future lawsuits,” said Gerald Maatman, a management-side attorney at Duane Morris LLP. “You’re gonna see an employer in the appropriate case, say to a judge, ‘I understand the EEOC issued their regulation and it has set forth its views on how the statute ought to be interpreted, but you’re the judge. That’s your job.’”

‘Overly Broad’ Regulations

The EEOC can expect potential challenges to the rules under the Administrative Procedure Act from employers, lawmakers, and religious groups who could argue that the agency exceeded its authority by including abortion. That term was not mentioned explicitly in the language of the PWFA passed by Congress in late 2022.

The APA also allows claims of violations during the notice-and-comment rulemaking process, as well as allegations that the regulations are “arbitrary and capricious.”

The commission’s interpretation of the PWFA could lead to state attempts to block the EEOC from enforcing its new regulations, particularly where abortion has been made illegal following the 2022 US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.

Red states have previously challenged the commission’s actions.

EEOC enforcement guidances on criminal background checks and LGBTQ+ anti-harassment have both been blocked in the courts in recent years as a result of lawsuits filed by the state of Texas that contained APA claims.

However, the EEOC’s final rule indicates there won’t be a clash between state and federal law when it comes to the PWFA’s inclusion of abortion.

“State laws that regulate the provision of abortions in certain circumstances do not conflict with covered entities’ obligations under the PWFA,” given that the likely accommodation will be leave from work, the rule said.

A case could be easier for any plaintiff to make, however, if the US Supreme Court decides to gut or weaken Chevron deference in the next few months, labor and employment attorneys said.

The longstanding legal doctrine requires courts to defer to federal agencies’ reasonable interpretations of ambiguous statutes. Without Chevron deference, the EEOC could be vulnerable to legal arguments that the agency overstepped in its interpretation of the PWFA.

‘Shocking and Illegal’

The EEOC’s rules have already drawn a sharp rebuttal from Republican lawmakers on Capitol Hill, including one of the law’s main backers.

Sen. Bill Cassidy (R-La), who along with Sen. Bob Casey (D-Pa.) sponsored the law in the Senate, lambasted the EEOC for what he called a “shocking and illegal” inclusion of abortion protections in its regulations.

The PWFA was “a tremendous, bipartisan legislative achievement” but the final rule has a “needlessly expansive foundation,” EEOC Commissioner Andrea Lucas said in a 16-page statement issued Monday on her decision to vote against the final regulations.

Lucas’ condemnation of the EEOC’s regulations could bolster legal arguments against them under the APA and provide those looking to challenge the rules with “an enhanced good faith basis,” said David Fortney, an employment discrimination attorney and co-founder of Fortney & Scott, LLC.

“Her views are ones that we can assume were fully aired within the Commission as part of their deliberations and obviously didn’t carry the day. But that doesn’t mean that they won’t carry the day with others,” Fortney said.

Both the EEOC and its Democrat commissioners have repeatedly argued that the agency’s inclusion of abortion is consistent with Title VII of the 1964 Civil Rights Act, which prohibits sex-based discrimination.

There is “over 40 years of precedent here, basically that you can’t discriminate against someone for choosing to have an abortion or choosing not to have an abortion,” said Gaylynn Burroughs, director of workplace equality at the National Women’s Law Center.

Religious Objections

The EEOC said in its final rules that individuals may object to abortion’s inclusion due to “sincere, deeply held convictions” that are often part of their religious beliefs.

Religious organizations may choose to rely on the ministerial exception, which shields them from liability for alleged discrimination against workers who qualify as “ministers.”

The Religious Freedom Restoration Act of 1993 is another path for some employers. Among its requirements, the law prohibits the government from “substantially burdening” a person’s religious freedom.

In 2014, the Supreme Court in Burwell v. Hobby Lobby Stores, Inc. extended RFRA’s protections to cover for-profit, but closely held, companies acting in accordance with their owner’s beliefs. In that case, the craft store chain succeeded in arguing that it shouldn’t have to provide employees health coverage of contraceptives, which which was required by the federal Patient Protection and Affordable Care Act of 2010.

Davis Wright Tremaine LLP attorney Angela Vogel, who advises employers on accommodation laws, said that employers looking to follow in Hobby Lobby’s footsteps may have a hard time because the PWFA doesn’t require employers to pay for employees to get abortions or travel to another state for an abortion.

It will likely be more difficult for a company to show a true “substantial burden” exists under the PWFA than it was under the ACA in Hobby Lobby, where employers were responsible for funding health benefits that they said violated their religious beliefs.

The EEOC has said its PWFA rules can’t be used to require employer-sponsored health plans to pay for abortion, and that it expects accommodations would likely be limited to unpaid time off for workers seeking the procedure.

The commission plans to handle religious exemption requests on a case-by-case basis, according to its rules.

The agency is revising documents that employers receive when a discrimination charge is filed against them, as well as revamping webpages for employers to better understand how to include a religious defense in response to discrimination charges, EEOC Chair Charlotte Burrows said at a press conference on Monday.

‘Constitutional Vulnerability’

“RFRA exists and ministerial exception exists,” said Burroughs of NWLC. “Every employer can access these and other legal frameworks, but there’s nothing in the PWFA itself that religious employers are not included in PWFA.”

“I don’t think that is consistent with the statutory framework to give a blanket exemption to a workplace, under all circumstances, for any accommodation that could be requested,” she said. “So there’s nothing that permits the EEOC to sort of absolve employers of their obligations under the law. It has to be a case by case inquiry.”

The only group known to have earned a broad PWFA exemption since the law’s enactment is Texas state employees.

A Texas federal judge enjoined the enforcement of the PWFA against employees of the state in February, saying that the law was passed under Covid-19 era proxy voting procedures that violated quorum requirements under the US Constitution.

The success of the Texas challenge could spur more plaintiffs to try this approach.

In her statement, Lucas said she anticipates defendants will continue to raise the question of the PWFA’s “constitutional vulnerability” as a defense until the Supreme Court weighs in or unanimous consensus of circuits is achieved.

There do not appear to be any new lawsuits yet filed by other states challenging the PWFA on the basis of a lack of Congressional quorum.

“If nothing else, the issue of abortion has demonstrated that it makes for some pretty powerful political and policy points that people want to make,” said Fortney. “So it strikes me that this has just been one small battlefront in a much larger war involving how abortion is to be treated.”

—With assistance from Diego Areas Munhoz