Court Strikes Down Rule Requiring Employer Accommodations for Certain Abortions
A federal judge in Louisiana recently vacated part of a rule that required covered employers to make reasonable accommodations to employees in connection with abortions considered elective, or not medically necessary. The ruling impacts employer obligations under the Pregnant Workers Fairness Act (PWFA).
The Equal Employment Opportunity Commission (EEOC) issued the final rule as part of its duty to implement the PWFA. The PWFA requires employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee,” unless it would impose an undue hardship.
In the final rule, the EEOC included “termination of pregnancy, including via miscarriage, stillbirth, or abortion” as examples of “related medical conditions” that require accommodation under the PWFA. The EEOC further explained in its interpretive guidance that “having or choosing not to have an abortion” is a type of medical condition in which the relation to pregnancy is readily apparent.
Shortly after the EEOC issued the final rule, the states of Louisiana and Mississippi and several religious groups filed suits against the EEOC. They challenged the validity of the rule’s inclusion of elective abortions among pregnancy-related medical conditions on the ground that it was not authorized by Congress. The court agreed, holding that the EEOC’s rule interpreting the PWFA to include an elective abortion accommodation “clearly and unequivocally exceeds” the EEOC’s statutory authority.
The court pointed to the fact that Congress included no reference to abortion in the PWFA and found that the exclusion was intentional. The court explained that, had Congress “wanted to include an abortion accommodation provision in the PWFA, it surely would have done so.”
The court vacated the portion of the final rule that included “abortion” as a “related medical condition” of pregnancy and childbirth. The court also vacated any implementing regulations or guidance to the extent they require or suggest to employers that they must provide employees with accommodations for what the court called “purely elective abortions.”
However, the court made clear that abortions stemming from underlying treatment of a medical condition related to pregnancy remain covered by the PWFA. In such a situation, the crucial fact is the pregnancy-related medical condition necessitating the abortion, and not the abortion itself. In other words, employers are required to accommodate abortions stemming from pregnancy-related medical conditions (subject to the undue hardship exception).
In addition, although the court ruled that the PWFA does not require an employer to accommodate purely elective abortions, the Pregnancy Discrimination Act (PDA) continues to prohibit discrimination against an employee on the basis of pregnancy, childbirth or related medical conditions. The PDA has been interpreted to include an employee’s “decision to have or not have an abortion.” An employer cannot discriminate against an employee because the employee has had (or plans to have) an abortion, whether considered medically necessary or elective.
The court’s ruling means employers are not required to accommodate an employee for an abortion considered purely elective, at least for now. But it does not relieve employers of the obligation to avoid discrimination against an employee for having (or planning to have) an abortion. The line between these duties can be quite murky, so employers should stay aware of their obligations under both the PWFA and the PDA.
Please contact Jess Huffman or any member of the Phelps labor and employment team if you have questions or need advice or guidance.
