Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—8th Cir.: States have standing to challenge rule they argued requires accommodations for abortions, (Feb 21, 2025)

By Ronald Miller, J.D.

Because the States are the object of an agency action, they are injured by the imposition of new regulatory obligations.

Tennessee and 16 other states had standing to challenge the lawfulness of a regulation promulgated by the Equal Employment Opportunity Commission, which they argued required them to make reasonable accommodations for state employees seeking an abortion in all circumstances. After the states moved for a preliminary injunction, a federal district court concluded that the states lacked standing to sue and dismissed the action. However, the Eighth Circuit determined that the states indeed suffered an injury in fact, and so had standing to pursue the action. As a practical matter, the rule requires immediate action by the states to conform, and this action produces an injury in fact, concluded the appeals court (State of Tennessee v. Equal Employment Opportunity Commission, No. 24-2249 (8th Cir. Feb. 20, 2025)).

Pregnancy discrimination. Congress enacted the Pregnant Workers Fairness Act 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 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.

Regulations. 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.” “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.

Abortion as accommodation. 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.

Injunction request. The states sued the EEOC seeking an injunction against enforcement of the rule and a declaratory judgment that the rule is unlawful. The states advanced four grounds for relief: (1) the rule is arbitrary and capricious; (2) the agency’s definition of “related medical conditions” exceeds the EEOC’s authority under the Act; (3) the rule violates the First Amendment and constitutional principles of federalism; and (4) the EEOC’s for-cause removal structure is unconstitutional under Article II of the Constitution.

Finding that the states failed to allege an injury in fact that could establish standing to challenge the rule, the district court dismissed the action for lack of jurisdiction. This appeal followed.

Standing. At the pleading stage, a plaintiff must “allege sufficient facts to support a reasonable inference that [it] can satisfy the elements of standing.” Those elements are (1) an injury in fact (2) caused by the challenged conduct of the defendant and (3) likely to be redressed by a favorable decision. An injury in fact is “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”

In this instance, the Eighth Circuit concluded that the states have standing to challenge the rule. The states are the object of the EEOC’s regulatory action. They are employers covered by the Act and the rule. Further, the states allege that the rule compels them to provide accommodations to employees that the states otherwise would not provide, to change their employment practices and policies, and to refrain from pro-life messaging that arguably would be “coercive” and thus proscribed by the rule.

Because the states are the object of an agency action, they are injured by the imposition of new regulatory obligations, according to the court. The injury is caused by the agency’s action, and a judicial decision setting aside the action would remedy the injury.

The appeals court rejected the EEOC’s contention that the rule does not compel the states to act and does not produce an injury until an employee requests an abortion-related accommodation.

The agency’s notion of actions undertaken “voluntarily” is inconsistent with the realities facing these regulated parties. Covered entities must comply with the rule. 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.

Accordingly, the appeals court concluded that the states have Article III standing to sue, and it therefore reversed the judgment dismissing the action.

The case is No. 24-2249.

Judge: Colloton, S.

Attorneys: Edmund G. Lacour, Jr., Attorney General’s Office, for State of Alabama. Stephen John Petrany, Attorney General’s Office, for State of Georgia. Virginia N. Adamson, Attorney General’s Office, for State of Tennessee. Laura Bakst, U.S. Department of Justice, for the EEOC.

Companies: State of Alabama; State of Georgia; State of Tennessee; Equal Employment Opportunity Commission

Cases: Discrimination PregnancyDiscrimination Procedure FederalRegulations AgencyNews ArkansasNews IowaNews MinnesotaNews MissouriNews NebraskaNews NorthDakotaNews SouthDakotaNews