Challenges to EEOC regs keep on coming

Pregnancy regs, harassment guidance under fire.

Not long ago, I reported that a number of state attorneys general had filed suit seeking to block the final regulations interpreting the Pregnant Workers Fairness Act. Their lawsuit is pending in a federal court in Arkansas.

This past Monday, another lawsuit challenging the PWFA regulations was filed by the attorneys general of Louisiana and Mississippi. This lawsuit is pending in federal court in Louisiana.

Texas has yet to act, but I’m sure they will get in on the action soon. Here is the latest, unless something new got filed in the wee hours of this morning:

The legal challenges in both lawsuits focus primarily, but not entirely, on the decision of the Equal Employment Opportunity Commission to apply the PWFA accommodation requirements to abortion.

But it’s not just the PWFA. The EEOC’s final Enforcement Guidance on Harassment is also the subject of a lawsuit that was filed this week, in federal court in Knoxville, Tennessee. The primary basis of this challenge is the Enforcement Guidance position on gender identity, which the plaintiffs contend takes an unjustifiably expansive reading of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. In Bostock, the Court held that discrimination based on gender identity violated Title VII but specifically declined to address issues like bathroom and locker room use. The EEOC Enforcement Guidance takes the position that employers are required to allow transgender employees to use the bathrooms associated with their gender identity and that it is unlawful harassment for employers to do otherwise. 

Here are the states currently challenging the Enforcement Guidance:

The above is subject to change at any time. We’ll keep you posted.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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