Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—W.D. Mo.: EEOC stayed from enforcing PWFA’s abortion accommodations against religious employer, (Mar 19, 2025)

By Todd Harrison, J.D.

Although the EEOC’s acting chair indicated her intent to revisit the final rule once the agency regained a quorum, the EEOC could not presently disavow enforcement or change the rule.

Granting the Stanley M. Herzog Foundation’s motion for a preliminary injunction against the implementation of the Pregnant Workers Fairness Act (PWFA), specifically the final rule’s requirement that employers accommodate employees who obtain abortions in situations where the medical procedure would violate an employer’s sincere religious beliefs, a federal district court in Missouri determined that, despite the EEOC’s current lack of a quorum of commissioners, a credible threat of enforcement remained and the Foundation had, among other things, established an injury-in-fact on this basis (The Stanley M. Herzog Foundation v. EEOC, No. 4:24-cv-00651-RK (W.D. Mo. Mar. 18, 2025)).

The Stanley M. Herzog Foundation is a Christian nonprofit organization that subscribes to the belief that abortion constitutes the unjustified taking of an innocent human life. Based on this belief, the Foundation does not provide workplace accommodations for employees who obtain an abortion. In fact, obtaining an abortion is grounds for an adverse employment action, up to and including termination.

Preliminary injunction. On October 24, 2024, the Foundation filed a complaint alleging violations of the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause of the First Amendment, and the APA. On January 7, it filed a motion for a preliminary injunction requesting that the court enjoin enforcement of the final rule, the PWFA, and Title VII to the extent that they compelled the Foundation to accommodate abortion under the final rule. The EEOC moved to dismiss for lack of subject matter jurisdiction. The court here considered both motions.

Tennessee. First, the court addressed the EEOC’s motion to dismiss for lack of subject matter jurisdiction. Since filing the motion to dismiss, the Eighth Circuit issued its decision in Tennessee v. EEOC, which addressed issues of standing in the context of a pre-enforcement challenge to the final rule by a group of states. The EEOC noted that this decision bears on the injury-in-fact, traceability, and redressability arguments raised in its opening brief. Even if Tennessee establishes standing, the EEOC argued that this case should be dismissed because it is not ripe.

Absent a clear concession of the issue of standing by the EEOC and the Foundation’s lack of an opportunity to brief the issue post-Tennessee, the court considered both standing and ripeness in the present action.

Injury-in-fact. To satisfy the injury-in-fact requirement, the Foundation identified two specific injuries: (1) the burden and costs associated with complying with the final rule; and (2) the credible threat of enforcement of the final rule.

Compliance costs. With regard to the injury associated with compliance costs, the court determined that Tennessee was binding on the question of whether a regulatory burden is sufficient to establish an injury-in-fact in this situation.

Here, the Foundation identified specific actions it would need to take to comply with the abortion accommodation mandate, such as revising company policies and implementing training programs for staff. Accordingly, the court found that, pursuant to Tennessee, the Foundation had established a sufficient injury-in-fact based on the regulatory obligation and compliance costs imposed by the final rule.

Threat of enforcement. As to the threat of enforcement, the Foundation asserted, and the court agreed, that its anti-abortion policies were inherently linked to its religious convictions and were thus affected with a constitutional interest. Further, the court determined that the Foundation’s constitutionally affected conduct was likely proscribed by the final rule. On the question of whether the threat of enforcement was credible, the court noted that the EEOC had not made any promises that it would refrain from enforcing the abortion accommodation mandate against religious employers like the Foundation.

Although the EEOC’s acting chair indicated her intent to revisit the final rule once the agency regained a quorum of commissioners, the court observed that in the meantime the final rule remains the law as a result of the formal rulemaking process, and the EEOC could not disavow enforcement or act to change the rule at this time. In light of the particular facts and circumstances of this case, the court concluded that a credible threat of enforcement remained, and the Foundation had established an injury-in-fact on this basis as well.

Traceability. To satisfy the traceability requirement, the Foundation had to show that its injuries arose, at least in part, from the EEOC’s actions or potential actions. Here, the court found that the EEOC’s actions in implementing the final rule, investigating charges filed by employees, and enforcing the final rule contributed to the Foundation’s alleged injuries.

Redressability. Similarly, to satisfy the redressability requirement, the Foundation must show a reasonable likelihood that the requested relief will address some injury it faces. Although the EEOC argued that even if the final rule is enjoined, the Foundation could still face lawsuits from private individuals, the court explained that if the Foundation was successful in this proceeding, then the court could at least redress the Foundation’s injuries arising from the EEOC’s own actions. Accordingly, the Foundation demonstrated Article III standing.

Ripeness. Having concluded that the Foundation had standing to bring its claims, the court turned its attention o the EEOC’s argument that the Foundation’s case was not ripe. The EEOC argued the matter was not ripe because: (1) delayed review would not cause harm to the Foundation; (2) further factual development was warranted; and (3) judicial intervention would inappropriately interfere with further administrative action.

Delayed review. The EEOC argued that the Foundation would not be harmed by a delay in review because the Foundation will have to choose between compliance with the final rule and its religious beliefs only when and if an employee actually seeks an abortion-related accommodation. The court did not agree, again pointing to the compliance costs the Foundation would incur to familiarize itself with the final rule. Further, the court noted that there was a threat of harm from delay with regard to the threat of enforcement.

Factual development. Regarding the EEOC’s argument that further factual development was required before a court could assess the Foundation’s religious-based claims, the court found that the Foundation had persuasively argued that RFRA’s fact-specific inquiry imposes a rigorous burden on the government to satisfy strict scrutiny at the merits stage of a RFRA action, not a burden on the plaintiff to bring a justiciable claim in the first place.

Administrative action. As to the EEOC’s argument that judicial intervention would inappropriately interfere with further administrative action in light of the acting chair’s statement that she intended to revisit the final rule, the court noted that the EEOC had conceded that it could not currently amend the final rule, and thus it was not persuaded by this argument. As such, the court found the Foundation’s claims ripe for review and denied the EEOC’s motion to dismiss for lack of jurisdiction.

RFRA claim. Next, the court considered the Foundation’s motion for a preliminary injunction, beginning with the likelihood of success on the merits of the Foundation’s RFRA claim. Here, the court found the threat of enforcement to be a substantial burden on the Foundation’s free exercise of religion. As to the compelling governmental interests that qualified employees remain in the workforce and that workplace discrimination against women be eradicated, the court found that the EEOC had not established, at this stage, that it had used the least restrictive means to advance those interests. Accordingly, the Foundation was likely to succeed on the merits of its RFRA claim, and the court thus did not reach the issue on the Free Exercise Clause and APA claims.

Irreparable harm. On the issue of irreparable harm, the court explained that showing the likelihood of success on the merits of a RFRA violation was generally sufficient to establish such a threat. As such, the court concluded the Foundation had shown a threat of irreparable harm in the absence of a preliminary injunction.

Balance of harms, public interest. Finally, considering the balance of the harms and the public interest, the court determined that the risk to constitutional rights in the absence of a preliminary injunction, evidenced by the Foundation showing a likelihood of success on the merits of its RFRA claim, tilted the balance of harms and public interest factors in favor of the Foundation. Accordingly, the court granted the Foundation’s motion for a preliminary injunction.

The case is No. 4:24-cv-00651-RK.

Judge: Ketchmark, R.

Attorneys: Katherine Eliza Mitra (Graves Garrett Greim) for The Stanley M. Herzog Foundation. Daniel Schwei, U.S. Department of Justice, for the EEOC.

Companies: The Stanley M. Herzog Foundation

Cases: RemediesDamages CoverageLiability Discrimination ReligiousDiscrimination PregnancyDiscrimination MissouriNews