Comment by Michelle Zeng
Kimberlie Michelle Durham of Arab, Alabama had never flown on a plane before the age of twenty-six. But in 2019, she took her first flight to Washington, D.C., where she urged Congress to pass the Pregnant Workers Fairness Act (PWFA). She testified to the United States Congress about the time she requested a temporary light-duty assignment from her employer to accommodate her pregnancy. Her job as an emergency medical technician required her to lift patients in 100-pound stretchers, but her doctor had advised her not to lift more than fifty pounds during her pregnancy. Durham’s employer denied her request, explaining its accommodation policy only applied to employees suffering from a work-related injury. In need of income, Durham attempted to continue working while pregnant. Shortly after her request, her employer stopped scheduling her work shifts.
Durham’s experience was far from unique. Before the PWFA’s passage in 2022, hundreds of thousands of women faced similar denials to their pregnancy accommodation requests and adverse employment actions. Many employers denied such requests despite medical documentation supporting the need for accommodations. These denials left pregnant workers with an impossible choice: quit their jobs and lose health benefits, or continue working under conditions that increased birth risks. Existing pre-PWFA federal laws offered little protection, as the Pregnancy Discrimination Act of 1978 (PDA) and Americans with Disabilities Act of 1990 (ADA) did not require employers to provide reasonable accommodations for pregnant workers, leaving a critical gap in workplace protections. This gap affected a significant portion of the workforce, since most women in the United States become pregnant at some point during their careers. For many families, the denial of pregnancy accommodations was particularly urgent since mothers typically served as a primary or joint breadwinner.
In 2022, a gridlocked Congress passed the PWFA with broad partisan support. The newly passed PWFA required employers to provide reasonable accommodations to employees who have “known limitations related to the pregnancy, childbirth, or related medical conditions” absent undue hardship. Congress delegated express authority to the Equal Employment Opportunity Commission (EEOC), a federal administrative agency, to implement the PWFA and define what constituted reasonable accommodations and pregnancy-related medical conditions. Two months after the PWFA took effect, the EEOC published its proposed guidelines. In these guidelines, the EEOC listed abortion as an example of a “pregnancy, childbirth, or related medical condition[],” which meant employers needed to provide reasonable accommodations for any employee receiving an abortion.
Hours before the proposed guidelines became final, President Trump-appointee Judge David C. Joseph for the United States District Court for the Western District of Louisiana held in Louisiana v. EEOC that the agency exceeded its statutory authority under the major questions doctrine and rejected the Final Rule’s categorization of abortion as a “related medical condition[]” under the PWFA. The district court reasoned that the PWFA text did not explicitly include abortion in its language and that its legislative history demonstrated a lack of “clear congressional authorization” to mandate abortion care as a reasonable accommodation. The district court concluded that the EEOC implicated the major questions doctrine by improperly introducing abortion—a matter of “political significance”—into its interpretation of the PWFA despite the statute’s silence around the issue.
Meanwhile, the Louisiana decision contradicted the holding in Tennessee v. EEOC, decided months earlier by the United States District Court for the Eastern District of Arkansas. In Tennessee, former President Obama-appointee Judge D.P. Marshall, Jr. held that the major questions doctrine did not apply because the EEOC attached a reasonable interpretation to the PWFA’s use of “related medical conditions” consistent with the existing PDA. The district court reasoned that the EEOC’s Final Rule did not raise any “extraordinary” concerns under the major questions doctrine since it addressed routine workplace accommodations rather than “politically significant” issues, and managing workplace accommodations fell squarely within the EEOC’s regulatory authority.
The district courts’ decisions in Louisiana v. EEOC and Tennessee v. EEOC mark the first time courts have applied the major questions doctrine to uphold or diminish the EEOC’s statutory authority. This Comment examines the differences in each district court’s approach in applying the major questions doctrine, illustrates how the doctrine’s ambiguity creates inconsistent analyses and outcomes, and argues that this inconsistency will produce conflicting future applications of the PWFA while narrowing workplace reproductive rights protections. Part II surveys the major questions doctrine’s evolution throughout the twenty-first century and its emergence as a key tool in restricting the power of administrative agencies. Part III lays the foundational pre-PWFA legal landscape, including Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the ADA, leading up to the creation of the PWFA. Part IV recounts the courts’ decisions and applications of the major questions doctrine in Louisiana v. EEOC and Tennessee v. EEOC. Part V explores how the doctrine’s ambiguity will create variations in PWFA applications and could narrow the scope of its protections around reproductive rights in the workplace. Part VI briefly concludes.
About the Author
Michelle Zeng, J.D. Candidate 2026, Tulane University Law School; B.S. 2016, Cornell University.
Citation
100 Tul. L. Rev. 417