US appeals court revives Tennessee’s challenge to PWFA regulation

The US Court of Appeals for the Eighth Circuit determined that the states, led by Tennessee, can move forward with a lawsuit against the US Equal Employment Opportunity Commission (EEOC) regarding its rule implementing the Pregnant Workers Fairness Act 2022 (PWFA). The 20 February order reverses a lower court decision that Tennessee lacked standing to challenge the rule, which requires employers to make reasonable accommodations for “related medical conditions” under the PWFA. The rule includes abortions as such a condition.

The court found that the states would suffer injury from the EEOC’s rule because they are “direct objects” of the agency’s enforcement and regulation. The rule would require the plaintiffs to “act contrary to their established practices” of “refus[ing] to accommodate state employees who seek elective abortions.”

The PWFA was enacted in 2022 with bipartisan support as part of the Consolidated Appropriations Act 2023. The PWFA requires employers to provide reasonable accommodations for workers who are pregnant, have recently given birth, or have related medical conditions. The EEOC issued rules to implement the PWFA, including one that includes abortion as a related medical condition that can give rise to a known limitation requiring reasonable accommodation.

The EEOC stated in the preamble to the final rule that it had interpreted “pregnancy, childbirth, or related medical conditions” to include abortion decisions for “nearly 45 years.” The EEOC also acknowledged in its rulemaking that reasonable accommodations for employees who seek elective abortions will vary but would generally include job reconstruction and unpaid leave, among other things.

The Republican state attorneys general sought a nationwide injunction against the EEOC’s rule in 2024. The plaintiffs claimed the PWFA had been amended without due process required under the Administrative Procedure Act 1946 (APA) and pointed to the anti-abortion policies present in many of their state constitutions. They argued that the EEOC failed to quantify any costs associated with accommodating abortions and ignored opposition to the proposed version of the rule.

The plaintiffs listed several irreparable harms inflicted by the EEOC’s rule. In addition to improperly imposing accommodation costs on employers, the states claimed the rule infringed on their sovereignty and impaired their anti-abortion messaging.

The US District Court for the Eastern District of Arkansas dismissed the complaint in June 2024, holding that the states lacked standing and failed to show a likelihood of irreparable harm.

However, the 20 February 2025 order greenlights Tennessee’s challenge to the EEOC’s rule. The Eighth Circuit found that compliance with the rule constituted injury, and that enjoining the rule would remedy it.

The plaintiffs may encounter less opposition from the EEOC this time around. US President Donald Trump terminated two Democratic commissioners, leaving the agency with only two members, and named Republican Andrea Lucas acting chair in January 2025.

Lucas has opposed the PWFA rule since 2024. Upon implementation of the rule, she wrote that she was “unable to approve [the rule] because it purports to broaden the scope of the statute in ways that, in [her] view, cannot reasonably be reconciled with the text.”

“The PWFA was a tremendous, bipartisan legislative achievement. Pregnant women in the workplace deserve regulations that implement the Act’s provisions in a clear and reliable way,” Lucas said at the time. “It is unfortunate that the elements of the final rule serving this purpose are inextricably tied to a needlessly expansive foundation that does not. I cannot support the Commission’s final product.”

Now that the EEOC is under Republican control, it remains to be seen whether the plaintiffs will proceed with the suit, or if the agency will continue to defend its rule.