By: Sarah Prazeau

Published on: April 14, 2025

The Pregnant Workers Fairness Act (“PWFA”)[1], ratified February 27, 2024, provides all employees covered under the Act the right to receive reasonable accommodations for pregnancy related conditions.[2]  The PWFA mandates that reasonable accommodations be made for qualified workers affected by “pregnancy, childbirth, or related medical conditions,” unless such an accommodation would impose an undue hardship on the employer.[3]  The ambiguous piece of this statute – the “related medical conditions” component – was subject to regulatory interpretation by the Equal Employment Opportunity Commission (“EEOC”), facilitating clear enforcement guidelines for courts hearing claims brought under the PWFA.[4]

Within the EEOC’s issued guidance for general regulatory implementation, the agency specifically addressed the applicability of abortion services.[5]  Recognizing the massive call by the public on both sides of the issue, the EEOC asserted that abortion is in fact covered under “related medical conditions”.[6]  Because the PWFA only serves as an anti-discrimination law and does not require any employer-sponsored health plans to cover abortion services, abortion may be included to ensure reasonable accommodations are protected for employees who do choose to pursue an abortion.[7]  While those opposing the inclusion of abortion in the definition of “pregnancy, childbirth, or related medical condition” purport that Congress did not expressly intend to include it in the PWFA, the EEOC countered with the overarching intent of the PWFA: to support mothers during pregnancy and childbirth, which includes abortion.[8]

Traditionally, under the Chevron doctrine, the EEOC, as the agency holding authority, would fill the gaps of “specific provision[s] of the statute by regulation.”[9]  Deferring to the expertise of the executive agencies, courts have been obligated to accept the EEOC’s reasonable rulemaking decisions.  Under the Supreme Court’s decision in Loper Bright Enterprises. v. Raimondo, however, automatic deference is no longer the standard.[10]  In its place, the Skidmore doctrine is now the re-enacted standard, which affords deference to agencies based on “consistency, formality, relative expertness, [and] persuasiveness,” but is not an obligatory consideration.[11]

Adhering to the Skidmore standard, several courts have raised issue with the liberal interpretation of the PWFA, imposing injunctions against the EEOC from bringing cases under it within these jurisdictions.In Texas, Judge Hendrix from the Northern District granted a permanent injunction of the PWFA on the basis that it imposes irreparable compliance costs and signified a waiver of the state’s sovereign immunity in bringing forth opportunity for new litigation paths.[13]  The court concluded that the PWFA was unconstitutionally enacted and gave illegitimate authority to the EEOC to demand the right of an employee to a reasonable accommodation for a pregnancy related conditions.[14]  In Louisiana, Judge Joseph in the Western District granted a preliminary injunction against the implementation of the EEOC’s Final Rule including elective abortions in PWFA’s coverage.[15]  The court relied upon the major questions doctrine, concluding that the agency used its regulatory power beyond what Congress could reasonably be understood to have intended.[16]

The American Civil Liberties Union, the National Women’s Law Center, and nineteen other organizations collaborated in filing an amicus brief on June 10, 2024, to the Western District Court of Louisiana in opposition to the preliminary injunction.[17]  These organizations urged the court to understand that enjoining the PWFA altogether because of the Final Rule imposes more public harm than good.[18]  The brief laid out express examples of women who needed legitimate accommodations for abortion services who were unable to receive the requisite medical care because of their employment conflicts.[19]  Amici emphasized in their brief the necessity of abortion access to workers and the importance of consistent enforcement of the PWFA across the country to avoid confusion and injustice.[20]

The strongest argument proposed by opponents of the PWFA is the broad statutory interpretation effectuated by the EEOC, relying on the principle that “every word in a statute [is to] be interpreted to have meaning. . . and withholding of terms within a statute is taken to be intentional.”[21]  The foundation of executive agency regulatory power, however, is the delegation doctrine,[22] under which executive agencies have the power of the sword to .  The intent of Congress can be deciphered in a variety of ways: looking to slip bill variations, looking to press releases from bill sponsors and lobbying partners, significant political events within temporal proximity, the transcript of floor debates, or the language of the bill itself.  With the PWFA specifically, the EEOC’s express adoption of abortion under the protective wing of the PWFA is justified considering (1) the lifetime of the bill amidst the transition of abortion care from Roe to Dobbs in 2022, (2) press releases by the bill sponsor, congressional members, and non-profit organizations lauding the EEOC’s inclusion of abortion services, and (3) adherence to preconceived federal definitions of abortion.[23]  Because the facts and circumstances surrounding the ratification of the PWFA strongly support the inclusion of abortion services in “pregnancy, childbirth, or other related medical conditions,” understandably, the EEOC incorporated this message into its Final Rule guidance.  Despite executive agencies no longer receiving automatic deference, the courts are actively legislating from the bench by sidestepping both agency guidance and Congressional intent of a federal law.  While abortion is a polarizing topic in today’s political climate, the EEOC rightfully acknowledges that the PWFA does not offer security for abortion services, but rather only requires an employer provide a reasonable accommodation to an employee who may have privately chosen to utilize those health services.[24]  Given the limited impact of including abortion services in an anti-discrimination law and the apparent intent from Congress to include such a provision, the EEOC’s Final Rule should survive Skidmore deference and be enforced nationwide.

While the fight for pregnant workers’ rights, including abortion care, is far from over, many questions linger about women’s rights with regard to a post-Dobbs world, instability in federal agency enforcement power, and the political shifts the nation is experiencing.  While there may not ever be clear answers, there is no denying that advocacy groups, legislators, and individuals will continue to fight through the uncertainties until we reach equal opportunities for pregnant workers.

[1] 42 U.S.C. § 2000gg-1 (2024).

[2] See 42 U.S.C. § 2000gg (2024) (enforcing the PWFA against companies employing at least fifteen employees).

[3] 42 U.S.C. § 2000gg-1; see, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2023) (recognizing a reasonable accommodation under the ADA as a mechanism for obtaining the same workplace opportunities amongst qualified workers with various abilities); see also Barnett, 535 U.S. 391 at 400 (defining an undue hardship as an obstacle to an employer’s operation of business, dependent upon facts and circumstances).

[4] See 42 U.S.C. § 2000gg-3(a) (directing the EEOC to create regulatory guidance for PWFA enforcement); Implementation of the Pregnant Workers Fairness Act, 29 C.F.R. § 1636, 3 (2024).

[5] See generally What You Should Know About the Pregnant Workers Fairness Act, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last visited Feb. 12, 2025) (answering rudimentary questions about the PWFA); Implementation of the Pregnant Workers Fairness Act, 29 C.F.R. § 1636, 19 (2024).

[6] Implementation of the Pregnant Workers Fairness Act, 29 C.F.R. § 1636, 19 (2024).

[7] See id. (“the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or recovery,” not compelling an employer to fund any kind of services).

[8] See id. at 26, 28 (rationalizing that “Congress does not hide elephants in mouseholes, and abortion is an elephant in the mousehole of pregnancy, childbirth, or related medical conditions.”) (punctuation omitted).

[9] Chevron U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

[10] See Loper Bright Enter. v. Raimondo, 603 U.S. 369, 412-13 (2024) (overturning Chevron and instructing courts to use their independent judgment to determine the amount of deference to give to agency statutory interpretation).

[11] See United States. v. Mead Corp., 533 U.S. 218, 228 (2001) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944)).

[12] See generally Texas v. Garland, 719 F. Supp. 3d 521 (Tex. 2024); Louisiana v. EEOC, 705 F. Supp. 3d 643 (W.D. La. 2024).

[13] See Garland, 719 F. Supp. 3d at 595 (finding that policies, trainings, processing accommodation requests, and litigation poses a non-recoverable financial cost of approximately $5,225.05 annually).

[14] See id. at 598.

[15] See Louisiana, 705 F. Supp. 3d at 664.

[16] See id. at 659; Cong. Rsch. Serv., IF 12077, The Major Questions Doctrine (2022) (explaining that “if an agency seeks to decide an issue of major national significance, its action must be supported by clear congressional authorization.”).

[17] NWLC Files Amicus Brief Defending PWFA Regulations From Challenge By Louisiana and the U.S. Conference of Bishops, et al., Nat’l Women’s L. Ctr. (June 11, 2024), https://nwlc.org/resource/nwlc-files-amicus-brief-defending-pwfa-regulations-from-challenge-by-louisiana-and-the-u-s-conference-of-bishops-et-al/#:~:text=The%20amicus%20brief%20defends%20regulations%20from%20the,for%20their%20pregnancy%2Drelated%20needs%2C%20including%20abortion%20care.

[18] Brief for ACLU et al. as Amici Curiae in Opposition to Plaintiff’s’ Motions for Preliminary Injunction at 4-5, Louisiana v. EEOC, 705 F. Supp. 3d 643 (W.D. La. 2024) (No. 2:24-cv-629).

[19] See id. at 5-6.

[20] See id. at 5, 8.

[21] See Louisiana, 705 F. Supp. 3d at 658; see also Texas v. Garland, 719 F. Supp. 3d 521, 583 (Tex. 2024) (discussing how “post-ratification adoption or acceptance of practices that are inconsistent with the original meaning” cannot overcome the textual basis).

[22] U.S. Const. art. I, § I (roots of delegation doctrine); see Chevron U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (applying a two-step process allowing clear Congressional intent to control the statute and allowing ambiguous provisions to be reasonably interpreted by executive agencies).

[23] See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 301 (2022) (banning abortions past fifteen weeks of gestational age of the fetus); Press Release, Nadler Applauds EEOC Finalized Rule Implementing the Pregnant Workers’ Fairness Act that Include Abortion Related Accommodations (Apr. 15, 2024) (on file at https://nadler.house.gov/news/documentsingle.aspx?DocumentID=395143); Hisham Jadallah Mansour Shakhatreh, et al., Medico-Legal Aspects of Abortion: Updates on the Literature, 76 Med. Archives 373, 373 (2022) (“the termination of pregnancy before the fetus is viable”) (citation omitted). But see Dobbs, 597 U.S. at 274-76 (negating that “personhood” is contingent upon “viability” because medical advances continuously move gestational success closer to point of conception).

[24] Implementation of the Pregnant Workers Fairness Act, 29 C.F.R. § 1636, 19-20 (2024).

 

I think for a lot of these Fns it could go to the end of the sentence. If it’s a quote with a source that doesn’t apply to the end of the sentence, then feel free to do the FN right after the quote, but in cases like this (FN 4), feel free to put it at the end of the sentence if the source and the information applies generally. (If this makes sense, lmk!) [This applies to further footnotes also I’m just flagging it so i don’t put a new comment every time + take up space]

 

With the state of Louisiana case – I’m finding  a different case name/court than the one cited – the one i’m finding is State v. Equal Emp’t Opportunity Comm’n, 705 F. Supp. 3d 643 (W.D. La. 2024)

 

Is this a quote/wording from someone/a source?If so, pls put in quotes and add a FN!

 

 

Make it consistent throughout the blog – either way whichever you close – it should be ‘final rule’ or ‘Final Rule’ each time its used