State of Tennessee v. Equal Employment Opportunity Commission

United States Court of Appeals
For the Eighth Circuit
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No. 24-2249
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State of Tennessee; State of Arkansas; State of Alabama; State of Florida; State of
Georgia; State of Idaho; State of Indiana; State of Iowa; State of Kansas; State of
Missouri; State of Nebraska; State of North Dakota; State of Oklahoma; State of
South Carolina; State of Utah; State of West Virginia; State of South Dakota,
lllllllllllllllllllllPlaintiffs - Appellants,
v.
Equal Employment Opportunity Commission,
lllllllllllllllllllllDefendant - Appellee.
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The Ethics & Public Policy Center,
lllllllllllllllllllllAmicus on Behalf of Appellant(s),
American College of Obstetricians and Gynecologists; Society for Maternal-Fetal
Medicine; Society of General Internal Medicine; Council of University Chairs of
Obstetrics and Gynecology; American Medical Women’s Association; North
American Society for Pediatric and Adolescent Gynecology; American College of
Physicians; American College of Preventative Medicine; American College of
Medical Genetics and Genomics; American Academy of Family Physicians;
National Association of Nurse Practitioners in Women’s Health; American
Gynecological and Obstetrical Society; American College of Nurse Midwives;
American Academy of Pediatrics; American Civil Liberties Union of Iowa;
American Civil Liberties Union of Minnesota; American Civil Liberties Union of

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Missouri; American Civil Liberties Union of Nebraska; American Civil Liberties
Union of South Dakota, North Dakota and Wyoming,
lllllllllllllllllllllAmici on Behalf of Appellee(s),
Small Business Majority; Main Street Alliance; American Sustainable Business
Council; State of New York; State of Arizona; State of California; State of
Colorado; State of Connecticut; State of Delaware; State of Hawaii; State of
Illinois; State of Maine; State of Maryland; State of Massachusetts; State of
Michigan; State of Minnesota; State of Nevada; State of New Jersey; State of New
Mexico; State of North Carolina; State of Oregon; State of Pennsylvania; State of
Rhode Island; State of Vermont; State of Washington; State of Wisconsin; District
of Columbia; National Women’s Law Center; American Civil Liberties Union;
American Civil Liberties Union of Arkansas; A Better Balance; Actors’ Equity
Association; American Federation of Labor and Congress of Industrial
Organizations; American Federation of State, County and Municipal Employees;
American Federation of Teachers; Center for WorkLife Law; Communications
Workers of America; Legal Aid at Work; National Center for Law and Economic
Justice; National Education Association; National Employment Law Project;
National Nurses United; National Partnership for Women and Families; One Fair
Wage; Public Counsel; Service Employees’ International Union; United Food and
Commercial Workers International Union,
lllllllllllllllllllllAmici Curiae - Amici on Behalf of Appellee(s).
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Appeal from United States District Court
for the Eastern District of Arkansas - Delta
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Submitted: September 24, 2024
Filed: February 20, 2025
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Before COLLOTON, Chief Judge, LOKEN and KOBES, Circuit Judges.
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COLLOTON, Chief Judge.
Tennessee and sixteen other states brought this action to challenge the
lawfulness of a regulation promulgated by the Equal Employment Opportunity
Commission. The States moved for a preliminary injunction. The district court
concluded that the States lacked standing to sue and dismissed the action for lack of
jurisdiction. The States appeal, and we reverse and remand.
I.
Congress enacted the Pregnant Workers Fairness Act, 42 U.S.C. § 2000gg, in
2022. The Act declares it unlawful for a covered employer to “not make reasonable
accommodations to the known limitations related to the pregnancy, childbirth, or
related medical conditions of a qualified employee,” absent a showing of undue
hardship to the employer. Id. § 2000gg-1(1). The statute defines a “known
limitation” as a “physical or mental condition related to, affected by, or arising out
of pregnancy, childbirth, or related medical conditions.” Id. § 2000gg(4). The Act
applies to state and local governments as employers, and Congress declared that a
State shall not be immune under the Eleventh Amendment from an action for a
violation of the Act. Id. § 2000gg-4.
Congress tasked the EEOC to issue regulations to implement the Act. Id.
§ 2000gg-3. After notice and comment, the EEOC promulgated 29 C.F.R. § 1636,
a final rule implementing the Act. Among its provisions, the Rule provides an
extensive list of example conditions that “are, or may be, ‘related medical
conditions’” under the Act’s definition of “known limitation.” Id. § 1636.3(b). The
list includes “termination of pregnancy, including via miscarriage, stillbirth, or
abortion.” Id. “Reasonable accommodation” varies with the employee’s condition
and circumstances but generally includes adjustments to work environment, job
restructuring, unpaid leave, and the ability to use accrued paid leave. Id. § 1636.3(h)-
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(j). In addition to the cost of providing any given accommodation, the EEOC expects
regulated parties to experience one-time administrative compliance costs from such
activities as familiarizing themselves with the rules, posting new EEO posters, and
updating employment policies and handbooks. 89 Fed. Reg. 29,177.
The States believe that the Rule requires them to make reasonable
accommodations for state employees seeking an abortion in all circumstances. The
States currently refuse to accommodate state employees who seek elective abortions.
Different States have different policies about when an abortion is elective, but all of
the state policies conflict with the Rule.
The States sued the EEOC seeking an injunction against enforcement of the
Rule and a declaratory judgment that the Rule is unlawful. The States advanced four
grounds for relief: (1) the Rule is arbitrary and capricious; (2) the agency’s definition
of “related medical conditions” exceeds the EEOC’s authority under the Act; (3) the
Rule violates the First Amendment and constitutional principles of federalism; and
(4) the EEOC’s for-cause removal structure is unconstitutional under Article II of the
Constitution.
Without reaching the merits of these claims, the district court dismissed the
action for lack of jurisdiction. The court concluded that there was no case or
controversy under Article III because the States failed to allege an injury in fact that
could establish standing to challenge the Rule.
The court concluded that the States’ alleged sovereign harms were not
imminent because the risk of enforcement is speculative. The court also ruled that
any sovereign injury was not redressable by the court because a decision setting aside
the Rule would not eliminate the possibility that the Act by itself requires the States
to accommodate employees who seek elective abortions. The court next concluded
that the costs of complying with the Rule did not establish an injury in fact. The court
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reasoned that the States could not trace any definite portion of expected one-time
compliance costs to the challenged portion of the Rule and that the costs of providing
accommodations are not traceable to a threat of enforcement. Finally, the court
rejected the argument that the States have standing by virtue of their position as direct
objects of the EEOC’s regulatory action. The district court dismissed the motion for
preliminary injunction as moot and, in the alternative, because the States failed to
show irreparable harm. The States appeal, and we review the district court’s decision
de novo.
II.
Article III of the Constitution limits the jurisdiction of the federal courts to
cases or controversies. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).
A plaintiff invoking federal jurisdiction must establish Article III standing to sue.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). At the pleading stage, a plaintiff
must “allege sufficient facts to support a reasonable inference that [it] can satisfy the
elements of standing.” Animal Legal Def. Fund v. Vaught, 8 F.4th 714, 718 (8th Cir.
2021). Those elements are (1) an injury in fact (2) caused by the challenged conduct
of the defendant and (3) likely to be redressed by a favorable decision. Lujan, 504
U.S. at 560-61.
An injury in fact is “‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504
U.S. at 560). Where a plaintiff is the object of a regulatory action, “there is ordinarily
little question that the action or inaction has caused [the plaintiff] injury, and that a
judgment preventing or requiring the action will redress it.” Lujan, 504 U.S. at 561-
62. A regulated party has “a concrete interest . . . in avoiding regulatory obligations
above and beyond those that can be statutorily imposed upon them.” Iowa League
of Cities v. EPA, 711 F.3d 844, 871 (8th Cir. 2013).
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We conclude that the States have standing to challenge the Rule. The States
are the object of the EEOC’s regulatory action. They are employers covered by the
Act and the Rule. 42 U.S.C. § 2000gg(2)(B), (3)(D). The States allege that the Rule
compels them to provide accommodations to employees that the States otherwise
would not provide, to change their employment practices and policies, and to refrain
from pro-life messaging that arguably would be “coercive” and thus proscribed by the
Rule. Because the States are the object of an agency action, they are injured by the
imposition of new regulatory obligations. The injury is caused by the agency’s
action, and a judicial decision setting aside the action would remedy the injury.
The imposition of a regulatory burden itself causes injury. In West Virginia v.
EPA, 597 U.S. 697 (2022), the Supreme Court held that the plaintiff States were
injured by an EPA regulation because they were “‘the object of’ its requirement that
they more stringently regulate power plant emissions within their borders.” Id. at 719
(quoting Lujan, 504 U.S. at 562). The Court thus deemed it unnecessary to consider
whether the requirement caused any specific economic harms to the States or whether
the States faced a credible threat of enforcement if they refused to comply. Id. This
court similarly held that an association of cities alleging that an agency action
violated its procedural rights had standing to challenge the action because the cities
had a concrete interest in avoiding regulatory obligations that were not authorized by
statute. Iowa League of Cities, 711 F.3d at 871.
The EEOC maintains that the Rule does not compel the States to act and does
not produce an injury until an employee requests an abortion-related accommodation.
Although the EEOC anticipates that employers will update employment policies and
train their staffs on new requirements, the EEOC contends that these are voluntary
measures not required by the Rule.
The agency’s notion of actions undertaken “voluntarily” is inconsistent with
the realities facing these regulated parties. Covered entities must comply with the
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Rule, and we presume that the States will follow the law as long as the Rule is in
effect. An employer cannot meet its obligations under the Rule without taking steps
to ensure that its employees know their rights and obligations under the Rule. As a
practical matter, the Rule requires immediate action by the States to conform to the
Rule, and this action produces an injury in fact. See id. at 870.
The EEOC argues that any injury is too speculative under School of the Ozarks,
Inc. v. Biden, 41 F.4th 992 (8th Cir. 2022). In School of the Ozarks, however, an
institution of higher education sought to challenge a federal agency’s internal
memorandum that did not regulate the college. Id. at 999-1000. The memorandum
merely gave direction to agency staff and did not injure the institution. By contrast,
the States in this case are the direct objects of the EEOC’s rule, and the Rule injures
the States by requiring them to act contrary to their established policies.
For these reasons, we conclude that the States have Article III standing to sue,
and we therefore reverse the judgment dismissing the action. We remand the case for
further proceedings and express no view on the merits of the claims.
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