EEOC must face states' challenge to Biden-era rule on abortion protections

By Daniel Wiessner

Feb 20 (Reuters) - A U.S. appeals court on Thursday revived a lawsuit by 17 Republican-led states challenging a U.S. Equal Employment Opportunity Commission rule that gives workers who have abortions the same legal protections as those who are pregnant or recently gave birth.

A unanimous three-judge panel of the 8th U.S. Circuit Court of Appeals said the states led by Tennessee had legal standing to sue over the 2024 rule because they are employers who must comply with it, reversing a judge who dismissed the case last year.

The rule enacted last April by appointees of Democratic former President Joe Biden is likely to be repealed once Republicans have a majority on the EEOC, which may not happen for months.

President Donald Trump in an unprecedented move last month fired two Democratic commissioners, leaving the normally five-member commission with just two members — Republican Andrea Lucas, who had voted against adopting the pregnancy rule, and Democrat Kalpana Kotagal. Trump appointed Lucas as acting chair of the EEOC last month.

The rule implemented a law that Congress passed in 2022 with bipartisan support and the backing of major business groups requiring most employers to accommodate workers who are pregnant or have related medical conditions, such as by granting them sick leave or time off to see doctors. The EEOC rule said those related conditions can include getting an abortion or using contraception.

Tennessee Attorney General Jonathan Skrmetti in a post on social media site X called Thursday's decision a win for his state, saying the EEOC had attempted to turn the pregnancy law "into an aggressive abortion mandate."

The EEOC did not immediately respond to a request for comment.

The states say in their lawsuit that abortion is not a medical condition that Congress intended for the pregnancy law to cover. They claim that being forced to accommodate state workers' abortions would conflict with state laws barring the use of public funds to provide abortions.

The states are seeking to strike down the provision of the rule covering abortion.

U.S. District Judge D.P. Marshall in Little Rock, Arkansas said last June that those alleged harms were speculative and that the commission was unlikely to enforce the rule against the states, depriving them of legal standing. He also rejected the states' claim that they had standing because they would have to update their employment policies and train staff on the new requirements, agreeing with the EEOC that those actions are voluntary.

The states appealed and the 8th Circuit on Thursday reversed, saying that the states and other employers had no choice but to take affirmative steps to meet their obligations under the rule.

"The agency’s notion of actions undertaken 'voluntarily' is inconsistent with the realities facing these regulated parties," Circuit Judge Steven Colloton wrote.

The panel included Circuit Judges James Loken and Jonathan Kobes. All three judges are appointees of Republican presidents.

The case is Tennessee v. EEOC, 8th U.S. Circuit Court of Appeals, No. 24-2249.

For the states: Whitney Hermandorfer of the Tennessee Attorney General's office

For the EEOC: Urja Mittal

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