Published June 11, 2024
As I discussed yesterday, the Equal Employment Opportunity Commission (EEOC) repeatedly points to the availability of religious defenses in response to religious employers’ concerns over the Pregnant Workers Fairness Act (PWFA) rule and its abortion accommodation mandate. These defenses — which were raised by the United States Conference of Catholic Bishops (USCCB) and the Catholic University of America (CUA) in their lawsuit challenging the rule — include the PWFA’s rule of construction, the Religious Freedom Restoration Act (RFRA), and the First Amendment.
EEOC’s response to USCCB and CUA? Religious employers “may have defenses available” and the EEOC “committed to evaluating” these defenses “on a case-by-case basis.”
But the ability to raise a defense and being protected by a defense are two different things. And the PWFA rule reveals that the Commission will look for any and every way to limit the defenses’ protections, even for abortion accommodations.
For example, the EEOC’s interpretation of the PWFA’s rule of construction would render it meaningless. Under the rule of construction, the PWFA is subject to Title VII’s religious organization exemption, which states “this subchapter [(Title VII)] shall not apply” to a religious organization’s “employment of individuals of a particular religion.” Title VII defines “religion” broadly to include “all aspects of religious observance and practice, as well as belief.” As EEOC’s religion guidance acknowledges, Title VII’s exemption allows a religious organization “to assert as a defense to a Title VII claim of discrimination or retaliation that it made the challenged employment decision on the basis of religion.”
The PWFA rule, however, ignores both the plain text of Title VII’s exemption and EEOC’s religion guidance. While recognizing that religious employers “are exempt from Title VII’s prohibition against discrimination on the basis of religion,” the rule states that they “are still subject to the law’s prohibitions against discrimination on the basis of” other protected classes, even when the challenged employment decision was made for religious reasons. The rule further states that the exemption typically applies only to hiring and firing claims, not claims involving other terms and conditions of employment.
This interpretation calls into question whether the Commission would ever view the rule of construction as an available defense to PWFA claims for denial of accommodation, retaliation, or coercion. After all, every PWFA claim would allege discrimination on the basis of “pregnancy, childbirth, or related medical conditions,” not religion.
When the USCCB and CUA challenged this interpretation, the EEOC was evasive. The EEOC responded that if a religious employer makes a challenged employment decision on the basis of religion and raises the rule of construction as a defense, the EEOC will determine the merits of the defense on a “case-by-case basis.” Of course, in each case the EEOC could always determine the defense is meritless against a PWFA claim because, under the Commission’s interpretation, the defense only applies to claims of religious discrimination.
Similarly, the EEOC indicates its position on RFRA is that it will never provide a successful defense to an abortion accommodation claim. RFRA — which is a “super statute” and provides “very broad protection for religious liberty” — prohibits the federal government from substantially burdening a person’s exercise of religion unless that burden is the “least restrictive means” of furthering a “compelling governmental interest.”
The PWFA rule is quick to state that nondiscrimination laws and policies, including EEOC enforcement of Title VII, “have been found to serve a compelling governmental interest.” Indeed, in EEOC v. R.G. & G.R. Harris Funeral Homes (one of the cases consolidated with Bostock v. Clayton County before the Supreme Court), the EEOC argued that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination. In its response to USCCB and CUA, the EEOC argued that the PWFA furthers “multiple compelling Governmental interests,” including ensuring employees are able to receive abortion while retaining their jobs, and because “an accommodation like leave can only be given by the employer,” the EEOC is unable to achieve its goal by other means. In short, PWFA accommodations will always further a compelling governmental interest and be the least restrictive means of eradicating pregnancy discrimination.
The EEOC completely ignores that in Fulton v. City of Philadelphia the Supreme Court explained that the government cannot claim a “compelling interest in enforcing its non-discrimination policies generally” but must have an interest in denying an exception to the religious organization specifically.
Further, the PWFA rule states that if the EEOC determines that an employer has a valid RFRA defense, the EEOC will (rightly) refrain from bringing an enforcement action. However, by refraining, the EEOC could effectively eliminate the ability of the religious employer to obtain RFRA protections since some courts have held that a RFRA defense can only be raised if the government is a party to a case. As I’ve previously written (and as the Commission is well aware), under those precedents, “The EEOC could put its thumb on the scales and purposely avoid becoming a party in lawsuits against religious employers to deprive them of a potentially winning RFRA defense.”
Next, regarding the First Amendment, the PWFA rule acknowledges the ministerial exception, which provides religious employers an affirmative defense to employment discrimination claims brought by employees who “perform vital religious duties.” In its response to USCCB and CUA and in an effort to avoid a preliminary injunction, the EEOC stated that an employee seeking an abortion accommodation “could very well fall within” the exception. But that is no consolation. The EEOC has a poor track record on this defense. The EEOC argued against the religious employer in two cases that resulted in both important ministerial exception victories at the Supreme Court: The EEOC sued the Lutheran school in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and filed a Ninth Circuit amicus brief against the Catholic school in Biel v. St. James School (the companion case to Our Lady of Guadalupe School v. Morrissey-Berru).
In addition to religious defenses, a religious employer could claim that providing a requested accommodation is an undue hardship. The PWFA defines “undue hardship” as “significant difficulty or expense,” which is determined by considering a number of factors.
Commenters asked the EEOC to recognize that requiring religious employers to provide accommodations that violate their religious beliefs or mission would be a per se undue hardship. EEOC declined, “Creating a per se rule that an employer’s beliefs automatically and always create an undue hardship would be fundamentally inconsistent with this requirement that undue hardship be assessed as a defense on a case-by-case basis, and would therefore be inconsistent with the PWFA.” Naturally, the Commission found no such inconsistency with adopting “predictable assessments” of four reasonable accommodations that in its view won’t create an undue hardship in “virtually all cases.”
The PWFA rule emphasized that the undue hardship definition and factors “typically focus on measurable impacts on business operations,” especially financial difficulty (though not exclusively so). This discussion foreshadows that the EEOC will find no undue hardship for accommodations that violate a religious employer’s beliefs or mission unless the accommodation also creates a financial burden. Indeed, in its response to USCCB and CUA, the EEOC merely stated that requiring religious employers to do something that violates their religion “may” fundamentally alter the nature of their business “depending on the situation.”
Tomorrow, June 12, a federal district court in Louisiana will consider the merits of the PWFA rule’s abortion accommodation mandate, the religious defenses raised by USCCB and CUA, and EEOC’s response. With the PWFA rule set to go into effect next week, the court will determine whether the EEOC can hide behind defenses that “may” be available in the future, while simultaneously going out of its way to limit the defenses’ protections.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s Administrative State Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.
