Last week, an Eighth Circuit Court of Appeals panel reversed a district court’s dismissal of a lawsuit filed by red state attorneys general challenging the Equal Employment Opportunity Commission’s inclusion of abortion among protected pregnancy-related conditions. The conditions were included in regulations issued pursuant to the Pregnant Workers Fairness Act (PWFA). The PWFA requires employers to accommodate pregnancy-related conditions, including modification of job duties, medical leave, and other measures.

The lower court dismissed the lawsuit on procedural grounds, finding that the plaintiffs did not have legal standing to challenge the rules. The Eight Circuit disagreed, concluding that the plaintiffs' claims that the rules conflict with state law prohibiting abortions provided adequate standing for the case to proceed.

While this decision did not touch on the underlying merits of the claim, the inclusion of pregnancy-related conditions under the PWFA appears in jeopardy due to the change in administrations. The Trump-appointed chair of the EEOC has indicated her intent to revisit the regulations and employers' obligation to accommodate employee medical issues related to abortions. President Donald Trump removed the Democratic members of the EEOC, leaving the commission without a quorum. This means that the rule cannot be amended or rescinded until new EEOC members have been confirmed.

The Eighth Circuit decision means that despite the lack of an EEOC quorum, the states' challenge to the rules will proceed, and could result in a judicial injunction against this portion of the regulations. For now, however, employers that fail to accommodate employees' medical needs associated with abortion care could face EEOC charges or lawsuits filed under the PWFA.

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