The U.S. Court of Appeals for the Eighth Circuit ruled on February 20, 2025, in Tennessee v. Equal Employment Opportunity Commission, that seventeen (17) State attorneys general have standing to challenge the EEOC’s Final Rule interpreting the Pregnant Workers Fairness Act (the “PWFA” or “the Act”). In the first federal appellate court decision to consider the issue, the Eighth Circuit panel held that the plaintiff-States have a sound jurisprudential basis to challenge the Final Rule because the States “are the object of the EEOC’s regulatory action.”

Congress enacted the PWFA in 2023. The Act requires covered employers to provide employees or applicants with reasonable accommodation to known limitations related to, affected by or arising out of “pregnancy, childbirth, or related medical conditions,” unless the accommodation will cause the employer undue hardship. 42 U.S.C. § 2000gg(4). Critical to understanding this employer obligation is the embedded term “related medical conditions,” which Congress left undefined, choosing instead to delegate to the Equal Employment Opportunity Commission (EEOC) the responsibility to “provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000gg-3(a).

In April 2024, after notice-and-comment rulemaking, the EEOC issued regulations broadly defining what constitutes “limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions,” including within its examples, among others, lactation, miscarriage, stillbirth and “having or choosing not to have an abortion.” 29 C.F.R. Part 1636 & app. A. Numerous religious organizations voiced dissent to the EEOC’s broad definition of limitations related to pregnancy and childbirth. Even within the EEOC, there was vocal disagreement about the proposed regulations. Andrea Lucas—who at the time was an EEOC Commissioner but who, on January 20, 2025, was designated by President Trump as the Acting Chair of the EEOC shortly before he terminated two of the three Democratic Commissioners on the five-seat EEOC—vociferously objected to the agency’s broad interpretation of the phrase “pregnancy, childbirth, or related medical conditions,” claiming the phrase conflated accommodations to pregnancy and childbirth with accommodations to the female sex, including female biology and reproduction. Over Ms. Lucas’s objection, the EEOC’s Final Rule issued, with the broad definition of pregnancy-related limitations intact.

Less than one week after the Final Rule took effect, seventeen State Attorneys General, all hailing from Republican states, challenged the Final Rule on behalf of State employers, contending the EEOC exceeded its authority under the PWFA when it included abortions within the scope of pregnancy “related medical conditions.” At oral argument, the States conceded there may be some situations when a State employer should reasonably accommodate an employee obtaining an abortion, such as in the case of an incomplete miscarriage, ectopic pregnancy or when pregnancy-related medical conditions (such as diabetes) imminently threaten the health of the pregnant employee. However, the States objected, the Final Rule also purports to require accommodation for elective abortions “prompted exclusively by the woman’s choice, where no ‘physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions…’ exists, but where getting the abortion creates some limitations on the employee’s ability to do her job.” The States argued that, in many jurisdictions they represented, elective abortions—indeed, almost all abortions—are illegal; therefore, a regulation requiring accommodation for an illegal medical procedure created a non-speculative injury to the State-employers. The EEOC retorted that the States’ request to enjoin the regulation was unwarranted and the States lacked standing to bring the case because the States’ asserted injuries were purely speculative, both with respect to any individual accommodation and the overall cost of compliance with the regulation.

The federal court for the Eastern District of Arkansas agreed with the EEOC and held, on June 14, 2024, that the States lacked standing to challenge the Final Rule. The district court held the Plaintiff-States had not asserted a redressable injury-in-fact, pointing specifically to the EEOC’s inability to bring enforcement actions against State employers and the vagary around the compliance costs the States argued they would bear implementing the regulation. On appeal, however, the Eighth Circuit Court of Appeals reversed, concluding that “[t]he imposition of a regulatory burden itself causes injury.” The appellate court reasoned:

Covered entities must comply with the Rule, and we presume that the States will follow the law as long as the Rule is in effect. An employer cannot meet its obligations under the Rule without taking steps to ensure that its employees know their rights and obligations under the Rule. As a practical matter, the Rule requires immediate action by the States to conform to the Rule, and this action produces an injury in fact.

The case now returns to the district court to hear the States’ arguments on the merits. Should the States prevail on the merits, the Final Rule is likely to be substantially revised. Although EEOC Acting Chair Lucas lacks the authority unilaterally to rescind or modify the Final Rule, she has indicated that the EEOC will reconsider portions of the Final Rule that are “unsupported by the law” once a quorum is re-established. We will continue to monitor and update with developments.