From today's decision in Tennessee v. EEOC, decided by Eighth Circuit Chief Judge Steven Colloton, joined by Judges James Loken and Jonathan Kobes:
Tennessee and sixteen other states brought this action to challenge the lawfulness of a regulation promulgated by the Equal Employment Opportunity Commission. The States moved for a preliminary injunction. The district court concluded that the States lacked standing to sue and dismissed the action for lack of jurisdiction. The States appeal, and we reverse and remand….
Congress enacted the Pregnant Workers Fairness Act, 42 U.S.C. § 2000gg, in 2022. The Act declares it unlawful for a covered employer to "not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee," absent a showing of undue hardship to the employer. The statute defines a "known limitation" as a "physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions." The Act applies to state and local governments as employers, and Congress declared that a State shall not be immune under the Eleventh Amendment from an action for a violation of the Act.
Congress tasked the EEOC to issue regulations to implement the Act. After notice and comment, the EEOC promulgated 29 C.F.R. § 1636, a final rule implementing the Act. Among its provisions, the Rule provides an extensive list of example conditions that "are, or may be, 'related medical conditions'" under the Act's definition of "known limitation."
The list includes "termination of pregnancy, including via miscarriage, stillbirth, or abortion." "Reasonable accommodation" varies with the employee's condition and circumstances but generally includes adjustments to work environment, job restructuring, unpaid leave, and the ability to use accrued paid leave. In addition to the cost of providing any given accommodation, the EEOC expects regulated parties to experience one-time administrative compliance costs from such activities as familiarizing themselves with the rules, posting new EEO posters, and updating employment policies and handbooks.
The States believe that the Rule requires them to make reasonable accommodations for state employees seeking an abortion in all circumstances. The States currently refuse to accommodate state employees who seek elective abortions. Different States have different policies about when an abortion is elective, but all of the state policies conflict with the Rule.
