06-11-2025
In April 2024, the EEOC issued a final rule regarding the Pregnant Workers Fairness Act (PWFA). The rule allowed individuals to seek accommodations in connection with choosing or not choosing to have an abortion. Beginning in 1972, EEOC guidance treated abortion as a “related medical condition,” and since 1978, it has had guidance allowing employees to take time off related to abortion under Title VII. The PWFA is a workplace discrimination law that the EEOC has made clear does not require any employer or taxpayer to support abortion. The guidance stated that “the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery.” It acknowledged that such time would usually be unpaid. Employers are not required to provide time off where they can demonstrate that doing so would impose an undue hardship.
Mississippi and Louisiana quickly challenged the rule, seeking a declaratory judgment that neither state was obligated to accommodate an employee’s elective abortion. Abortion is illegal in both states. Four Roman Catholic-affiliated organizations sought similar relief. The District Court judge initially issued a preliminary injunction prohibiting the EEOC from investigating any claims alleging a failure to accommodate an elective abortion.
Judge David Joseph of the District Court for the Western District of Louisiana reviewed the matter. He concluded that the EEOC’s abortion related guidance “clearly and unequivocally” exceeded the agency’s authority. He based his decision on the PWFA’s omission of the word “abortion” in its language. Thus, Judge Joseph reasoned that Congress did not intend for abortion to fall within pregnancy-related “medical conditions.” The order directed the EEOC to remove all provisions in its final rule that require employers to consider accommodations for employees’ elective abortions. As a practical matter, employment attorneys note that the PWFA rules limit the documents an employer may request in response to an employee’s request for accommodation. Thus, employers may not be aware of the basis for such a request.