Published June 10, 2024
On May 22, 2024, the United States Conference of Catholic Bishops (USCCB) filed its first lawsuit in 45 years. The USCCB, along with the Catholic University of America (CUA) and two Catholic dioceses, sued the Equal Employment Opportunity Commission (EEOC) over its final rule implementing the Pregnant Workers Fairness Act (PWFA).
The PWFA filled a gap in employment law: It requires employers to provide “reasonable accommodations” for the “known limitations” related to an employee’s “pregnancy, childbirth, or related medical conditions” unless it poses an “undue hardship” on the employer’s business. The “pro-mother, pro-baby” Act passed with bipartisan support and the USCCB’s blessing.
Congress directed the EEOC to issue a rule implementing the act. However, the EEOC’s PWFA rule, which goes into effect on June 18, turned the act on its head. The EEOC broadly defined “pregnancy, childbirth, or related medical conditions” to include abortion and other nonmedical conditions such as the use of contraception and fertility treatments, including IVF. Under the PFWA rule, employers are mandated to accommodate their employees’ abortions, contraception use, and fertility treatments. The USCCB’s “Annual Report on the State of Religious Liberty in the United States,” published in January, identified the EEOC’s PWFA rule as one of the top five “largest threats to religious liberty in 2024.”
Abortion accommodations raise serious religious-liberty concerns, including for Catholic employers. These concerns, raised by the USCCB, the CUA, and others in a “large number of comments” opposing the EEOC’s proposed PWFA rule, were broadly dismissed by the commission.
The commission explained that in its “historical experience, in more than four decades of enforcing Title VII” (which prohibits discrimination on the basis of “pregnancy, childbirth, or related medical conditions”), “very few employers have actually faced a situation where an employee is expressly requesting leave for an abortion, and the employer declines to grant the leave on religious or moral grounds.” Considering that Title VII does not require pregnancy (much less abortion) accommodations, this is not surprising or reassuring. The commission’s historical experience of discrimination claims under Title VII provides no comfort for religious employers concerning future EEOC enforcement or employees’ claims for abortion accommodations under the PWFA rule.
In response to commenters’ concerns, the PWFA rule repeatedly pointed to the availability of religious defenses, including the PWFA’s rule of construction, which incorporates Title VII’s religious-organization exemption, the Religious Freedom Restoration Act (RFRA), and the First Amendment. As is common practice with Biden administration rules, the PWFA rule noted that any application of these defenses will be made on a “case-by-case basis.”
Deferring analysis to future cases is a win-win for the administration. On one hand, it allows an agency to avoid promising any protection. On the other hand, the agency can point to the possibility of protection under future “case-by-case” determinations in response to any pre-enforcement lawsuits. Indeed, that is the very tack that EEOC took in its response to the USCCB’s and CUA’s lawsuit. While refusing to guarantee the application of the religious defenses, the commission claimed that the Catholic employers don’t have standing since “any enforcement threat from EEOC is highly speculative,” and their religious claims are “not ripe given their fact-specific, contingent nature.”
The EEOC pointed to a single example in the PWFA rule about the availability of a First Amendment defense for a Catholic school that refused to provide leave to an employee to attend prenatal appointments because the teacher is pregnant but not married.
This offensive example, which appears to have been made up by the commission, indicates that the EEOC misunderstands what Catholics believe. Granting an unmarried pregnant teacher leave for life-affirming care doesn’t violate Catholic beliefs; it furthers Catholics’ concern for the preborn. As the USCCB’s and CUA’s joint comment on the proposed PWFA rule explained, Catholic employers share the PWFA’s “goals of better supporting pregnant women and mothers in the workplace” and are “deeply committed” to supporting mothers on their staff. As their complaint further explained, the USCCB’s “religious mission” includes protecting “both mothers and their preborn children,” and it “strongly supports the PWFA’s goal of helping healthy pregnancies and childbirth.” Indeed, the Catholic parish initiative Walking with Moms in Need provides “support to pregnant and parenting mothers in need,” including those who are unmarried.
At the end of the day, this example and the EEOC’s promise to fully consider religious defenses in the future is no guarantee of actual protection in practice.
Under the PWFA rule, religious employers face a constant threat of costly, time-consuming, and intrusive investigation, enforcement, and litigation, even if they ultimately receive protection under a religious defense.
Just last year, the EEOC inserted itself into a Seventh Circuit case, filing an amicus brief arguing that the appellate court should not review a college’s religious defenses until after all the other underlying employment discrimination claims are fully litigated in the district court. As former EEOC general counsel Sharon Fast Gustafson and I noted, that case was “about the EEOC’s using the power and resources of the federal government to force religious employers to muster a lengthy legal defense or capitulate.” The process is the punishment.
The CUA, unfortunately, knows about this all too well. After a teacher brought an employment discrimination claim, the EEOC dragged the university through two years of investigation and four years of litigation (including a one-week trial and appeal) before the D.C. Circuit held that the lawsuit was barred by the First Amendment and RFRA.
Nothing in the PWFA rule or the EEOC’s response to the USCCB and CUA guarantees the same thing won’t happen again.
But don’t worry — religious employers “may raise” religious defenses, and the EEOC will “take great care” in considering them.
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.
