The Pregnant Workers Fairness Act (PWFA), enacted with bipartisan support effective June 27, 2023 required employers to provide reasonable accommodations for limitations related to or affected by “pregnancy, childbirth, or related medical conditions” unless it would pose an undue hardship. The Equal Employment Opportunity Commission (“EEOC”) was delegated rulemaking authority regarding the PWFA. Its final rule provided examples of worker limitations including “related medical conditions” and included, among others, such conditions as lactation, miscarriage, stillbirth and “having or choosing to have an abortion.”
In the case State of Tennessee et al v. EEOC, Tennessee and 16 other states (the States) brought an action for injunctive relief, arguing the EEOC rule forced states to accommodate elective abortions in conflict with the States’ current policies. The District Court dismissed the case, finding the States had failed to allege an actual injury as the risk of enforcement was speculative and noted that setting aside the rule would not eliminate the risk that the PWFA on its own would require accommodation of elective abortions.
In State of Tennessee v. EEOC No. 24 -2249, the 8th Circuit Court of Appeals reversed the District court, finding that the regulatory burden imposed by the rule itself causes injury to the state. The court went on to explain that the States, as employers covered by the rule, are injured by the burden of compliance with a regulation that is contrary to the States’ existing policies. Further, the Court in describing injury for purposes of standing found proof of injury did not require the States to show proof of a specific economic harm to the state nor a threat of economic harm associated with enforcement of the rule. It is the regulatory action implementing the rule that caused the injury and established standing to bring a judicial action.
The EEOC argued any injury was speculative as the rule does not compel immediate State action and enforcement is dependent on a request for abortion-related accommodations. The Court disagreed, finding the States were injured by the requirement to immediately comply with a rule that conflicted with existing policies. The matter was remanded to the District Court for further proceedings on the merits.
In May of 2025, on remand, the District Court found the EEOC had overstepped its authority by including abortion as a pregnancy related condition and vacated that portion of the rule.
While this ruling invalidates only the portion of the rule related to abortion, the remainder of the rule and the statute’s broader protections remain in force. If you or your organization have questions regarding the PWFA or other accommodations, contact Wiley Reber Law for legal advice that works.