WASHINGTON, D.C. (Law360) — The Fifth Circuit recently struck down an injunction that barred the U.S. Equal Employment Opportunity Commission from enforcing the Pregnant Workers Fairness Act against Texas, in a legal battle experts say could be destined for the U.S. Supreme Court.
A divided three-judge panel on Friday ruled that U.S. District Judge James Wesley Hendrix was wrong when he held last year that the federal government couldn’t enforce the PWFA against the Lone Star State or its agencies.
Judge Hendrix found that House lawmakers in 2022 passed the PWFA as part of a funding package using a COVID-19 pandemic-era rule that allowed remote voting by proxy in violation of the Constitution’s quorum clause. But the Friday’s panel majority found that the quorum clause has no physical presence requirement.
In reaching that conclusion, the panel batted down a trial court injunction that had prevented the EEOC from accepting state employees’ charges alleging violations of the PWFA, investigating those charges, issuing so-called right-to-sue letters to those aggrieved workers, or suing on their behalf.
Although the ruling involved questions of congressional process that don’t arise often, the litigation threatened to derail the nearly 3-year-old PWFA — and the legal fight likely isn’t over.
Here are three things to know following the appeals court’s ruling.
Appeals Are Expected
The PWFA bolsters legal protections for workers who are pregnant or have conditions tied to pregnancy and childbirth by requiring employers to offer them reasonable accommodations to help them on the job.
Four months before the law’s June 2023 effective date, Texas lodged its suit challenging two provisions in the federal government’s omnibus spending package: enactment of the PWFA and funding for unauthorized immigrant social services. Judge Hendrix had rejected the state’s bid to challenge the immigration spending, which Texas did not appeal.
A day after the Fifth Circuit’s decision concluding that the PWFA was enacted through a constitutional process, an order was entered on the case docket stating that a judge had withheld the mandate to the trial court.
Raffi Melkonian, a partner at Texas trial and appellate firm Wright Close & Barger LLP, told Law360 that the clerk’s order “does not necessarily mean that reconsideration will be granted or that a grant of reconsideration is imminent.” But it does give the court time to consider any petition for rehearing, or consider rehearing on its own and conduct a vote, he said.
Other attorneys said they believe the state of Texas and Attorney General Ken Paxton are likely to seek an en banc rehearing, and, potentially, a review by the U.S. Supreme Court if any further proceedings before the Fifth Circuit don’t go the state’s way.
Sean Timmons, managing partner of Tully Rinckey PLLC’s office in Houston, expects Texas would be willing to potentially take the case as far as the nation’s high court, though it remains to be seen if the justices would agree to wade into the matter.
“I don’t know if the Supreme Court will take it up, but certainly I have no doubt Texas will file [a] request for intervention to the Supreme Court to see if they’ll review the decision by the circuit court upholding the law or vacating the injunction against it, at least,” Timmons said.
While the Fifth Circuit’s ruling last week had limited impact outside of Texas, any ruling by the full Fifth Circuit wiping away the panel’s decision could embolden litigants elsewhere to raise the quorum issue, according to Dennis Duffy, a Houston-based management-side attorney at Kane Russell Coleman Logan PC. He added that the “practical effect” of such an en banc ruling would “redound in private litigation and [with] entities other than Texas.”
“For example, if the full Fifth Circuit decides that the quorum clause requires physical presence and therefore this act is void, even though it only affects the state of Texas, that same argument could be made by any private employer or any municipality, et cetera,” Duffy said.
