* Brynn C. Chafin, Temple University Beasley School of Law, 2024.
Introduction
On January 20, 2025, President Donald Trump was sworn into office for his second term as President of the United States of America.[1] Although his administration has and will continue to affect all parts of American life, it will impact the Pregnant Workers Fairness Act of 2022 (PWFA or “the Act”)[2] in a unique way because of how new the Act is and because the Act’s coverage overlaps with highly politicized gender issues. Passed in the latter half of President Joe Biden’s term, the PWFA is one of the most recent federal attempts to protect pregnant American workers.[3] In short, it prohibits employers from discriminating against employees based on their “pregnancy, childbirth, or related medical conditions,” requiring eligible employers to provide “reasonable accommodations” to a covered employee’s known limitation.[4]
In light of the ever-changing policies and case law associated with the Act, this post aims to provide attorneys with an initial framework for researching the protections their clients may expect. Discussing first the policy positions that could impact the Act, this post addresses President Trump’s initial executive orders and policy stances. Specifically, first, it addresses his appointment of Andrea Lucas as Acting Chair of the Equal Employment Opportunity Commission (EEOC, or “the Commission”), the agency responsible for enforcing the PWFA,[5] as well as the unprecedented changes made to the Commission.[6] Second, this post addresses President Trump’s opposition to transgender protections. Third, this post addresses his anti-abortion positions. Then, this post highlights caselaw surrounding the Act, including challenges against the Act and cases brought under the Act, before a brief conclusion.
Political uncertainty: President Trump’s policy positions and appointments
Beginning with Acting Chair Lucas, at the time of the PWFA’s passage, Lucas was the sole Republican Commissioner.[7] As an activist Commissioner, she initiated more “Commissioner charges,”—Commissioner-initiated investigations—than any of her colleagues,[8] and she was the sole dissenter against the Regulations to Implement the Pregnant Workers Fairness Act in the Federal Register, the finalized regulations and guidance accompanying the Act.[9]In her dissenting opinion against the regulations, she argued, inter alia, that the regulation “fundamentally errs in conflating pregnancy and childbirth accommodation with the accommodation of the female sex, that is, female biology and reproduction,” accusing the Commission’s interpretation of the phrase “pregnancy, childbirth, or related medical conditions” of being overly broad.[10]
Chair Lucas has not stated exactly how she intends to lead the Commission in enforcing the PWFA; however, her prior statements suggest where she will advocate for a lesser application than her co-Commissioners. For example, in her dissent, although the Chair did not explicitly advocate against the inclusion of abortion within the Final Regulation, she emphasized her view that a “procedure” seeking to remedy a qualifying condition is not covered by the Act, meaning that a procedure—such as an abortion—would not necessarily be protected, even though the pregnancy itself would.[11] This, alongside her strict line-drawing between related medical conditions and non-related conditions of the “functioning, or ill-functioning, of the female worker’s underlying reproductive system,” stands in stark contrast to the interpretation adopted by the other four Commissioners, which state that terminating a pregnancy—including via abortion, with no delineation between elective or non-elective abortion—is covered.[12]
Alone, Chair Lucas would not have the votes on the five-seat Commission to fully promulgate her dissenting views. However, aside from appointing Chair Lucas, the Trump administration displayed immediate aggression toward the Democratic Commissioners, prematurely removing Commissioners Jocelyn Samuels[13] and Commissioner Charlotte A. Burrows[14] from their positions years before their terms were scheduled to end. While it is unclear if the terminations were lawful, President Trump will select new nominees to fill the vacancies. Given that President Trump moved Chair Lucas into her position, it is safe to assume that whoever he appoints to fill the empty seats will share the two’s views. A Republican four to one majority would allow for the Commission to retreat from its position in the Final Regulation. And, just as it has removed materials “promoting gender ideology” from the Commission’s materials online, it is not a stretch to imagine that the Commission has more backtracking planned.[15] In the interim, though, the Commission has only two seats filled: Chair Lucas and Democratic Commissioner Kalpana Kotagal.[16] With just the two, the Commission lacks quorum, and it is uncertain what actions the Commission is willing to take.[17]
Moving forward briefly to the anti-transgender policies under the Trump administration, both President Trump and Chair Lucas have directly opposed transgender protections. In President Trump’s Executive Order 14168, passed on his first day in office, he decreed a definition for “women” as “human females,” and “females” as “a person belonging, at conception, to the sex that produces the large reproductive cell.”[18] In doing so, he declared war on the “false,” “disconnected from biological reality” “gender ideology.”[19] Chair Lucas, echoing the same framework and borrowing his language, has stated her priorities to include “defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work” and combatting “unlawful [diversity, equity, and inclusion]-motivated race and sex discrimination.”[20]
On its face, the PWFA should be insulated from these transphobic policies, since it does not reference gender or biological sex, instead stating that any covered employee of a qualified employer who has a pregnancy, childbirth, or related medical condition is entitled to reasonable accommodations.[21] However, despite what the text says, the open question is how it will be applied. For example, if an accommodation that respects or upholds an employee’s gender identity is more costly or burdensome than one that does not, will disregarding the employee’s gender preferences be considered reasonable if other employees with the same biological sex (but different gender identity) accepted the non-gender-affirming accommodation? The Act and the administration are too young to fully know if and to what extent respecting an employee’s gender identity will factor into evaluating what protections are reasonable.
A separate but related issue is whether the agency will enforce the PWFA against transgender-related claims. Considering reports that the Trump administration has ordered attorneys to pause enforcement of cases it deems undesirable,[22] Chair Lucas’s statements on biological reality,[23] and the three-fifths of the Commission seats ready and waiting to be filled, an enforcement desert is a very real possibility. Or, even if the Commission does pursue transgender-related claims, the Department of Justice and the EEOC have argued opposing views in court before, so there could be inter-government opposition.[24]
Addressing abortions, there has always been opposition against including them within the PWFA’s protection. During debates for the Act on the Senate floor, at least one Senator from both parties expressed that they did not wish the Act to include abortion care.[25] Before the Final Regulations were adopted, comments from anti-abortion groups such as the House Republicans on the Committee on Education and the Workforce[26] and religious objectors were submitted to the EEOC in opposition to abortion’s inclusion.[27] In response to approximately 94,000 public comments about abortion, the Commission clarified it’s then-view that abortion would merely be included for the limited purpose of determining if an employee qualified for an accommodation under the PWFA.[28]
President Trump could affect the Commission’s willingness to advocate for abortion coverage. On January 24, 2025, during his (second) first week in office, President Trump issued Executive Order 14182 to end all uses of Federal funds to “fund or promote elective abortion,” revoking two Biden-era executive orders which promoted access to clinics (including abortion clinics) and which categorized abortion as healthcare.[29] Chair Lucas has also signaled suppoort for this, calling into doubt the idea that she would lead the Commission in a way adverse to President Trump’s order.[30]Even if the Commission had the will to advocate for accommodating abortion, it is unclear if it even can. If the EEOC argues that an employer who refuses to provide reasonable accommodations to an employee seeking an abortion is in violation of the Act, that may constitute promoting abortion care, which would violate Executive Order 14182. Whether the Commission differentiates between access to accommodations to receive an abortion versus promoting the abortion itself is an open question.
Legal uncertainty: Challenges to and from the Act
Aside from the policies that could affect the Act and its enforcement, there are lawsuits illustrative of what types of legal challenges the Act faces, whether they are challenges against the Act or challenges stemming from enforcing it.
Constitutional voting challenges: In Texas v. Garland,[31] the state of Texas challenged the Consolidated Appropriations Act of 2023 (CPA)[32] as invalid on the basis that the House of Representatives violated Article I, Section 5, Clause 1 of the Constitution, the Quorum Clause,[33] alleging that too many members of the House voted via proxy.[34] Texas argued and the district court agreed that the PWFA, included as permanent legislation within the CPA, was passed without quorum, and thus was invalid.[35] As a result, the district court issued a permanent injunction preventing the federal government from enforcing the PWFA against Texas.[36] Notably, Texas did not seek an injunction of the entire Act, merely the application of the PWFA against the state.[37] The federal government appealed, and the case is calendared for oral arguments on February 25, 2025, before the Fifth Circuit.[38]
Constitutional commissioner challenges: In Tennessee v. Equal Employment Opportunity Commission, seventeen states sued the EEOC, challenging its PWFA regulations and seeking a nationwide preliminary injunction or a stay under the Administrative Procedure Act.[39] The United States District Court for the Eastern District of Arkansas, Delta Division, dismissed the complaint on the ground that the states lacked standing.[40] Included in the complaint, but not addressed within the district court’s opinion, was the argument that the EEOC’s status as an “independent federal agency” whose leadership is removable only for cause, not at the President’s will, violates Article II of the Constitution and the Separation of Powers doctrine.[41] The states claim that this unconstitutional structure renders the Commission’s rules unlawful and the regulations void.[42] The Eighth Circuit has not heard oral arguments or issued its opinion yet; however, the argument was raised on appeal.[43] Though at the time of this post the terminated Commissioners Burrows and Samuels have not challenged their termination, there is the possibility that they will, which could also implicate this type of challenge against the Commission, even if Tennessee is affirmed.
Religious challenges: In Catholic Benefits Association v. Burrows,[44] a religious organization sought declaratory and injunctive relief under the Religious Freedom Restoration Act, arguing, inter alia, that the Title VII of the Civil Rights Act of 1964 and the PWFA’s enforcement guidance failed to adopt a blanket exemption for religious employers as it relates to abortion, fertility treatment, and gender identity, including preferred pronouns or single-sex spaces.[45] The district court sitting in North Dakota enjoined the EEOC from interpreting or enforcing the PWFA against Catholic Benefits Association members in a way that would require them to accommodate abortion or infertility treatments.[46]Also, with Executive Order 14182 prohibiting any use of federal money to “fund or promote elective abortion,” it is unclear if the EEOC even can enforce the PWFA against employers for abortion-related accommodations.[47]
Enforcement challenges: Aside from the challenges that threaten to upend the Act, the EEOC has its ordinary enforcement actions. As of the time of this blog, the following cases have been brought under the PWFA:
| Name and Case Number | Summary of allegations | Status |
| Equal Employment Opportunity Commission v. Wabash National Corporation, 5:24-cv-00147 | First PWFA lawsuit; Employer, inter alia, forced an employee to take unpaid leave, failed to accommodate her to a position that did not require laying on her stomach, and unlawfully requested medical documentation. | Ongoing |
| Equal Employment Opportunity Commission v. Polaris Industries, Inc., 5:24-cv-01305-CLS | Employer failed to accommodate absences and attendance, resulting in employee resignation. | Ongoing |
| Equal Employment Opportunity Commission v. Urologic Specialists of Oklahoma, Inc., 4:24-cv-00452 | Employer failed to accommodate break requests, forcing employee to use unpaid leave, terminating her after she stated she would not return without guaranteed breaks. | Ongoing |
| Equal Employment Opportunity Commission v. Kurt Bluemel, Inc., 1:24-cv-02816 | Employer granted maternity leave to an employee. However, when the employee attempted to return to work, the employer had replaced her with non-pregnant employees hired both during and after her requested leave period. | Ongoing |
| Equal Employment Opportunity Commission v. R&L Carrier Shared Services, LLC, 1:25-cv-00528 | Employer placed employee on involuntary leave after she requested pregnancy accommodations, and employer refused to comply with EEOC subpoena for information. | Ongoing |
| Equal Employment Opportunity Commission v. ABC Pest Control, Inc.[48] | First PWFA conciliation; Employer terminated employee after she sought a pregnancy accommodation request. | Settled; Approximately $47,000 in damages, employer appointedEEO coordinator, employer revised its employment policies to include the PWFA, employer provided training to both management and non-management employees, and employer provided quarterly reporting on requests for accommodations and complaints of discrimination to the EEOC. |
| Equal Employment Opportunity Commission v. Lago Mar Properties, Inc., 0:24-cv-61812 | Employer terminated an employee shortly after shortly after she requested leave to recover and grieve a stillbirth in the fifth month of her pregnancy. | Settled; Approximately $100,000 in damages, employer appointed EEO coordinator, employer revised its employment policies to include the PWFA, employer provided training to both management and non-management employees, and employer provided quarterly reporting on requests for accommodations and complaints of discrimination to the EEOC. |
Conclusion
In conclusion, the PWFA’s future is uncertain. Hopefully, the Act will pass through the gauntlet of litigation and will become the expansive, lasting pillar of federal workplace protections that it has the potential to be, since no person deserves to suffer at work due to their pregnancy. However, assuming the Act survives its Constitutional challenges, it is in an unprecedented period of change for how it will be implemented and what its scope will be. This author hopes that any attorney representing clients can use this post as a starting point to find out what changes have been made to the law, what the EEOC’s positions are, and ultimately what protections their clients are entitled to.
[1] The Inaugural Address, https://www.whitehouse.gov/remarks/2025/01/the-inaugural-address/ (last visited Feb. 2, 2025).
[2] 42 U.S.C. §§ 2000gg et seq.
[3] See Equal Employment Opportunity Commission, What You Should Know About the Pregnant Workers Fairness Act, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last visited Feb. 2, 2025).
[4] 42 U.S.C. § 2000gg(4).
[5] Id. at § 2000gg(1).
[6] President Trump Designates Chairmen and Acting Chairmen, https://www.whitehouse.gov/presidential-actions/2025/01/designation-of-chairmen-and-acting-chairmen/ (last visited Feb. 2, 2025).
[7] See Equal Employment Opportunity Commission, Commissioners of the EEOC, https://www.eeoc.gov/history/commissioners-eeoc (last visited Feb. 3, 2025).
[8] Equal Employment Opportunity Commission, Commissioner Charges, https://www.eeoc.gov/commissioner-charges(last visited Feb. 3, 2025); see 42 U.S.C. § 2000e-5(b).
[9] Implementation of the Pregnant Workers Fairness Act, 29 C.F.R. 1636 app. A to pt. 1636 (2024); 42 U.S.C. 2000gg–3.
[10] Andrea R. Lucas, Statement re: Vote on Final Rule to Implement the Pregnant Workers Fairness Act at 1, https://www.eeoc.gov/sites/default/files/2025-01/Lucas_Statement_re_PWFA_Final_Rule_%2804.2024%29.pdf (Apr. 3, 2024).
[11] Id. at 11–12.
[12] Id. at 15; 29 C.F.R. 1636(b).
[13] Equal Employment Opportunity Commission, Jocelyn Samuels, Commissioner, https://www.eeoc.gov/jocelyn-samuels-commissioner (last visited Jan. 29, 2025).
[14] Equal Employment Opportunity Commission, Charlotte A. Burrows, Commissioner, https://www.eeoc.gov/charlotte-burrows-commissioner (last visited Jan. 29, 2025).
[15] Press Release, Equal Employment Opportunity Commission, Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace (Jan. 28, 2025), https://www.eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace.
[16] Equal Employment Opportunity Commission, Kalpana Kotagal, Commissioner,
https://www.eeoc.gov/kalpana-kotagal-commissioner (last visited Jan. 29, 2025).
[17] Equal Employment Opportunity Commission, The State of the EEOC: Frequently Asked Questions, The State of the EEOC: Frequently Asked Questions | U.S. Equal Employment Opportunity Commission (last visited Feb. 18, 2025).
[18] Executive Order No. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, 90 Fed Reg 8615 (2025).
[19] Id.
[20] Equal Employment Opportunity Commission, Andrea R. Lucas, Acting Chair, Andrea R. Lucas, Acting Chair | U.S. Equal Employment Opportunity Commission (last visited Feb. 18, 2025).
[21] 42 U.S.C. § 2000gg(4).
[22] See, e.g., Alanna Durkin Richer, Trump’s New Justice Department Leadership Orders a Freeze on Civil Rights Cases, Wash. Post (Jan. 22, 2025), https://www.washingtonpost.com/politics/2025/01/22/civil-rights-division-justice-department-trump/a195a402-d93e-11ef-85a9-331436ec61e9_story.html.
[23] Equal Employment Opportunity Commission, supra note 19.
[24] Rebecca Klar, Biden-Era Workplace Bias Policies Under Threat with Trump DOJ, Bloomberg Law (Dec. 2, 2024, 5:45:00 AM), https://news.bloomberglaw.com/daily-labor-report/biden-era-workplace-bias-policies-under-threat-with-trump-doj .
[25] 168 Cong. Rec. S7050 (daily ed. Dec. 8, 2022) (statement of Sen. Bob Casey); 168 Cong. Rec. S7050 (daily ed. Dec. 8, 2022) (statement of Sen. Bill Cassidy).
[26] Letter from Rep. Virginia Foxx, Chairwoman, H. Comm. on Educ. and the Workforce, to Hon. Charlotte A. Burrows, Chair, Equal Employment Opportunity Comm’n (Oct. 10, 2023), https://edworkforce.house.gov/uploadedfiles/comment_letter_on_pwfa_proposed_rule_10-10-23.pdf at 4–6.
[27] See, e.g., 29 C.F.R. 1636 at 29104-105.
[28] See 29 C.F.R. 1636 at 29096.
[29] Executive Order No. 14182, Enforcing the Hyde Amendment, 90 Fed Reg 8751 (2025) (revoking Executive Order No. 14076, Protecting Access to Reproductive Healthcare Services, 87 Fed Reg 42053 (2022) and Executive Order No. 14079, Securing Access to Reproductive and Other Healthcare Services, 87 Fed. Reg. 49505 (2022)).
[30] Lucas, supra note 10.
[31] 719 F. Supp. 3d 521 (N.D.Tex. 2024).
[32] Pub. L. No. 117-328, 136 Stat. 4459.
[33] U.S. Const. art. 1, § 5, cl. 1.
[34] Texas v. Garland, 719 F. Supp. 3d at 536.
[35] Id. at 593-94.
[36] Id. at 597-98.
[37] Id. at 598.
[38] Docket, State of Texas v. McHenry, No. 24-10386 (5th Cir., 2025).
[39] Complaint at ¶¶ 131-38, Tennessee v. Equal Employment Opportunity Commission, 737 F. Supp. 3d 685 (E.D.A.R. June 21, 2024) (No. 2:24-cv-84-DPM).
[40] Tennessee v. EEOC, 737 F. Supp. 3d 685, 702 (E.D.A.R. June 21, 2024).
[41] Complaint at ¶¶ 131-38, Tennessee v. EEOC, 737 F. Supp. 3d 685 (No. 2:24-cv-84-DPM), (E.D.A.R. June 21, 2024).
[42] Id.
[43] Brief for Plaintiffs-Appellants at 43-44, Tennessee v. EEOC, No. 24-2249 (8th Cir. July 19, 2024).
[44] 732 F. Supp. 3d 1014 (D.N.D. 2024).
[45] Id.
[46] Id. at 1029-30.
[47] See Executive Order 14182, supra note 28.
[48] Press Release, Equal Employment Opportunity Commission, ABC Pest Control, Inc. Conciliates Pregnant Workers Fairness Act Charge (Sept. 11, 2024), https://www.eeoc.gov/newsroom/president-appoints-andrea-r-lucas-eeoc-acting-chair.