The federal courthouse in Little Rock Benjamin Hardy

A federal court on Friday dismissed a challenge from Arkansas and 16 other states to a federal rule giving workers who recently had abortions the same legal protections as pregnant workers and those who recently gave birth.

U.S. District Court Judge D. Price Marshall ruled the states lacked standing to sue the Equal Employment Opportunity Commission (“EEOC”) — the federal agency that enforces laws against workplace discrimination — over the new rule because the states had not shown a likelihood the agency would enforce it against them.

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The lawsuit arose from a provision in the Pregnant Workers Fairness Act, a 2022 law that passed with bipartisan support in both chambers of Congress. In April, the EEOC, pursuant to their statutory authority, published draft rules to implement the act, and they included abortion among the non-exhaustive list of “examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth or related medical conditions.”

Less than a week after the EEOC published the draft rule, Arkansas and Tennessee, along with 15 other Republican-led states, filed suit against the EEOC in federal court in Little Rock. The states sought an injunction prohibiting implementation of the portion of the rule that granted accommodations connected with some abortions. They argued compliance with the rule would interfere with the states’ public policies against abortion and that the rule violates the U.S. Constitution.

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Following a half-day hearing and amicus briefing from several interested third-party groups, Marshall agreed with the EEOC’s argument that the plaintiffs lacked standing to bring the suit in the first place.

In the order of dismissal, Marshall first noted a plaintiff seeking an injunction must show that the plaintiff will suffer actual or imminent harm if the challenged rule is not enjoined, that the rule being challenged is the cause of that harm, and that the harm can be redressed if the injunction is granted. The plaintiffs, Marshall said, established none of these factors.

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Looking first at the “injury” prong, Marshall wrote, “the States don’t claim any actual harm yet, only that they face imminent injury,” which was insufficient according to Marshall because “there is no credible threat of enforcement” by the EEOC. The states’ claim was therefore “too speculative” to create standing to bring the lawsuit.

Moreover, Marshall said, even if the court assumed the plaintiffs had shown an injury, they nevertheless lacked standing because they could not show the EEOC rule caused that injury or that the requested injunction would fix it.

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“Unlike in situations involving private employers,” Marshall wrote, “the EEOC cannot bring enforcement actions against state employers.” Enforcement in such situations falls either to the employee, who could bring a lawsuit against the state in federal court, or to the Department of Justice, who would do a separate investigation before taking any action. Whether the EEOC dismisses a complaint from a state employee or refers the employee’s complaint to the DOJ, Marshall said, “any enforcement action against the States will always result from the independent action of some third party not before the court — the employee or the Department of Justice.” (The DOJ was not a party to this lawsuit.)

Marshall also noted the inherent unfairness in the states’ argument. Under relevant federal law, before an employee can file a discrimination suit, he or she must exhaust all non-litigation remedies that might be available. This includes filing a complaint with the EEOC, which may then issue a right-to-sue letter to the employee, who could then file suit.

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The states, however, wanted the court to “enjoin the [EEOC] from accepting or referring any charge based on an elective abortion [that is] illegal under state law.” This would have essentially removed any legal recourse of an employee against an employer who refused to provide reasonable accommodations (including unpaid time off) to an employee who, for example, goes to another state for an abortion and subsequently has cramping and bleeding after she returns to Arkansas.

This is the second time in less than a month that a federal judge has dismissed a politically charged case brought by Attorney General Tim Griffin for lack of standing.

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In May, District Court Judge Jay Moody dismissed Arkansas from a case challenging a rule from the Department of Alcohol, Tobacco, Firearms and Explosives that clarified who was required to obtain a gun-dealer’s license. Moody noted that Arkansas, unlike other states in that suit, had failed to submit any evidence of an actual or imminent injury the state would suffer under the ATF rule, so he dismissed Arkansas from the lawsuit and transferred the case to Kansas.

Similar to the earlier case, part of the problem here stems from the curious strategic decision to file the case in Arkansas.

Price’s order noted the plaintiffs “lean hard on a Sixth Circuit case” regarding what kind of showing of injury and relief is needed to establish standing, but “the binding precedent from the Eighth Circuit does not adopt [the Sixth Circuit’s] standard.” Under the Sixth Circuit’s standard regarding redressability of an injury, a state might be able to establish standing by showing the requested relief would lessen the state’s injury, even if the relief does not resolve the injury entirely; the Eighth Circuit standard, however, requires the states to “show that the requested relief would eliminate” the alleged injury entirely.

Arkansas is in the Eighth Circuit, so Marshall was bound by that rule. Tennessee — the other lead plaintiff in the suit — is in the Sixth Circuit.

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Griffin’s office did not respond to a question about why the case was filed in Arkansas when they were reliant on a Sixth Circuit decision to establish standing. The office did provide this quote from Griffin about the dismissal in general, however: “I’m disappointed in the court’s ruling, am considering all legal options and remain confident we will ultimately be successful.”

Marshall also found, even if the states had standing, they would still not be entitled to an injunction because they could not show a likelihood of irreparable harm if the injunction was not granted.

Marshall also laid bare the illogic of the states’ arguments in light of their concessions about the parts of the law they were not challenging. According to Marshall:

The States concede that under the Act, which they are not challenging, a qualified employee who has any ‘physical or mental condition related to, affected by, or arising out of pregnancy’ is entitled to reasonable accommodations, even if treatment of the condition will result in an abortion, or if the condition was the result of an abortion. This would seem to apply to most, if not all, cases. What pregnancy doesn’t have accompanying physical or mental conditions?

Based on the states’ lack of standing, Marshall dismissed the lawsuit without prejudice, meaning it can be refiled if the plaintiffs can find a proper party to join — or come up with better arguments — establishing standing. If Griffin chooses to appeal this dismissal, his notice of appeal is due by July 17.