In States of Tennessee et. al. v. EEOC, (ED AR, June 17, 2024), an Arkansas federal district court held that 17 states that are plaintiffs in the case lack standing to challenge an EEOC Final Rule implementing the Pregnant Workers Fairness Act. At issue is the Rule's requirement that employers provide reasonable accommodation for employees' elective abortions. The court said in part:
[The states] press dual theories of injury -- sovereign harms and economic harms. The sovereign harms, the States say, are twofold: the rule will abridge their ability to regulate abortions and their interests in maintaining a pro-life message in dealing with state employees. The economic harms are the rule-related compliance costs the States say they will incur in response to potential enforcement....
The sovereign harms are not imminent because there is no credible threat of enforcement. ...
Even assuming an injury in fact, though, the States' sovereign-injury theory still fails for lack of causation and redressability. ...
Unlike in situations involving private employers, the EEOC cannot bring enforcement actions against state employers.... If an agreement isn't reached within thirty days after a charge is filed, the EEOC "shall take no further action and shall refer the case to" the Department of Justice"....
That leaves the alleged economic harms. The States don't claim any sunk costs. They only say that their compliance costs are imminent.. This economic-harm theory fails for two reasons.
First, the challenged costs-- those resulting only from rule-related compliance activities associated with illegal, elective abortions are neither concrete nor particularized. ...
Second, even assuming some concrete and particularized compliance costs related to illegal, elective abortions, these costs are not fairly traceable to any threat of enforcement....
Beyond the intense controversy surrounding abortion, there are no signs that this is a major questions case. Chevron's general rule applies.
CORRECTION: An earlier version of this post incorrectly said this was decided by a Tennessee federal district court.
A Louisiana federal district court has just reached the opposite conclusion (see prior posting.) [Thanks to Thomas Rutledge for the lead.]
