Arkansas, Tennessee file lawsuit over state rule protecting pregnant workers • Georgia Recorder

The attorneys general of Arkansas and Tennessee filed a federal lawsuit Thursday seeking to stop enforcement of a new federal rule that requires employers to accommodate pregnant workers who want or need an abortion.

The rule passed last week by the Equal Employment Opportunity Commission expands the definition of workplace accommodation in the Pregnant Workers Fairness Act of 2022 to include abortion.

The law went into effect in June 2023 and requires employers to consider “known limitations” related to “pregnancy, childbirth or related medical conditions.” But proposed rules that would include abortion in the legal definition of “related medical conditions” faced significant opposition.

In the lawsuit filed Thursday, Tim Griffin of Arkansas and Jonathan Skrmetti of Tennessee argue that the final rule violates the First and 14th Amendments of the U.S. Constitution, Article II's separation of powers and the sovereign immunity of individual states. Griffin and Skrmetti were joined in the lawsuit by 15 other state attorneys general.

The lawsuit asks the U.S. District Court for the Eastern District of Arkansas to declare that the EEOC exceeded its authority by including abortion in the final rule and to declare the rule arbitrary and capricious as well as unlawful and invalid in accordance with the constitution and federal administrative law.

Attorneys general are seeking an injunction to stop enforcement of the rule; It is due to come into force in June. They also demand that the rule be made permanent.

The complaint notes that the PWFA helped fill a gap in labor law by ensuring that employers had workplace accommodations to protect pregnant workers and their “unborn children.”

“A diverse coalition of legislators, business groups and nonprofit organizations supported this family-friendly goal and secured bipartisan support and passage of the law,” the lawsuit says.

“But in a new rule, a slim 3-2 majority of the unelected commissioners of the Equal Employment Opportunity Commission (EEOC) are attempting to hijack these new pregnancy protections by requiring employers to accommodate employee abortions – something that Congress has not approved it.”

The lawsuit alleges that the EEOC ignored the clear meaning of the PWFA's text and the intent of its supporters, who noted that the law would include “reasonable accommodations – 'such as additional bathroom breaks or the ability to work while seated.' “To ensure a healthy pregnancy and baby.”

The rule means employers must accommodate abortions of pregnant employees, regardless of whether they are medically necessary or not. Such accommodations could include abortion leave, “even for elective abortions that are illegal under state law,” the lawsuit says.

“An elective abortion is neither a known limitation nor a medical condition, but rather a voluntary, time-limited procedure intended to terminate a pregnancy,” the lawsuit states.

The complaint states that the proposed rule was met with “significant opposition,” citing some of it in detail, but that the EEOC proceeded anyway.

The attorneys general claim that their states would be irreparably harmed by enforcing the rule, incurring significant costs in lost productivity, shift coverage and additional vacation days, as well as compliance costs.

Forcing states with abortion bans to facilitate the procedure would also irreparably harm those states' right to regulate abortions, the petition says.

The EEOC rule violates the First Amendment's protections of speech and religion, the attorneys general argue, by forcing employers and employees to engage in speech and behavior that could violate their deeply held religious beliefs.

In a press release announcing the filing of the lawsuit, Griffin said the EEOC rule is “another attempt by the Biden administration to force through administrative fiat what it cannot get through Congress.”

“Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they do not authorize employee abortions, even if those abortions are illegal under state law. The PWFA should protect pregnancies, not terminate them.”

The states joining Arkansas and Tennessee in the lawsuit are Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.

This story was first published in the Arkansas Advocate, a sister company of the Georgia Recorder in the States Newsroom.