The EEOC’s inclusion of abortion-related worker accommodations in a pregnancy anti-bias rule will encounter a significant test at the US Court of Appeals for the Eighth Circuit as it reviews a challenge from red state attorneys general.
The 17 state AGs will urge the circuit judges on Tuesday to reverse a district court’s decision that they lacked standing to bring their suit. They seek to block and vacate the US Equal Employment Opportunity Commission’s April final rule under the Pregnant Workers Fairness Act.
The Eighth Circuit will be the first appellate court to hear oral arguments on the regulation as the EEOC’s enforcement of the PWFA has faced conflicting fates in challenges filed by Republican states, as well as some anti-abortion Catholic groups, across the country. An Eighth Circuit decision to allow a pause on the regulation’s enforcement would be a blow to the agency’s rulemaking authority, and could impede on abortion-related workplace accommodations like employee leave.
Two weeks after a lower court’s June 14 decision rebuffing the red states’ challenge to the EEOC’s inclusion of abortion as a “related medical condition” tied to pregnancy under the PWFA, the US Supreme Court overturned the Chevron doctrine.
The red states recently argued that the high court’s decision in Loper Bright Enterprises v. Raimondo , which eliminated the requirement that courts defer to reasonable agency interpretations of laws that are unclear or silent, bolsters the argument that the EEOC overstepped its authority, given that abortion is not mentioned explicitly in the statute.
“The PWFA does not authorize the Final Rule’s abortion-accommodation mandate—especially now that the district court’s reliance on Chevron is off the table,” the states wrote in their opening brief.
Judge
The issue of Loper Bright, along with the states’ arguments the regulation infringes on their sovereignty, though, will be secondary in the Eighth Circuit case, said Madeleine Gyory, a professor at NYU Law School who focuses on pregnancy accommodations in the workplace.
“A pivotal issue that needs to be determined in order for the states to even to get to a merits question is whether they even have standing,” Gyory said.
‘Theoretical’ or ‘Practical’
In their opening reply brief, the EEOC focused on an argument that the states lacked standing, as the district court ruled, in part because they have not established actual or imminent injury.
The EEOC may argue that the situation that the states are raising about how the abortion protections would harm them is a “theoretical issue versus a practical one,” said Alexandra Barnett, a partner at Alston & Bird.
Marshall in his decision said the states did not prove standing as they did not show the EEOC will bring “imminent enforcement action” against them for not providing abortion-related worker accommodations. What’s more, the commission’s rule does not appear to require an employer provide any more than unpaid leave as a reasonable accommodation, the judge said.
The EEOC’s general counsel Karla Gilbride said at a Sept. 12 briefing that she is not aware of any charges under the PWFA related to abortion out of the 1,869 filed in the 11 months following its effective date.
Most have related to employers not providing or delaying accommodations for workers by requiring unnecessary medical documentation, Gilbride said.
“Even if the court finds that the states do have standing, I think the appropriate thing to do would be to send it back to the district court,” said Katie Sandson, senior counsel for education and workplace justice at the National Women’s Law Center, which filed an amicus brief in the case supporting the EEOC.
But it is within the court’s purview to rule on the merits if it chooses and decide on the injunction the states are seeking, meaning questions about the merits of the case are likely to come up.
The states will likely raise a decision in Louisiana federal court that secured a preliminary injunction in Mississippi and Louisiana to block enforcement of the rule, Barnett said.
The US District Court for the Western District of Louisiana on June 17 ruled in favor of Mississippi, Louisiana, and a group of Catholic organizations to shield employers in those states from the abortion mandate.
A federal judge in North Dakota on Monday added a second preliminary injunction against the EEOC’s pregnancy bias rule, preventing the commission from enforcing the PWFA and certain other anti-bias laws and regulations against a different group of Catholic employers.
Another challenge against the PWFA itself—based on congressional quorum requirements—is also pending at the Fifth Circuit.
The 17 states’ attorneys general offices are representing themselves before the Eighth Circuit. The US Department of Justice is representing the EEOC.
The case is Tennessee v. EEOC, 8th Cir., No. 24-02249, oral argument scheduled 9/24/24.