Trump’s IVF Goal Set to Clash With EEOC Pregnancy Bias Rule Plan

The Republican-controlled EEOC’s anticipated narrowing of its pregnancy bias rules would put it at odds with the Trump administration’s push to make in vitro fertilization more accessible.

Equal Employment Opportunity Commission Chair Andrea Lucas signaled fertility treatment wouldn’t be covered by the agency’s Biden-era Pregnant Worker Fairness Act rules in a likely revision under her leadership.

Eliminating the rules’ requirements to accommodate workers for fertility treatment could push employers in contradictory directions and limit the benefit of President Donald Trump’s proposals to increase IVF access for Americans.

One in eight women at reproductive age say either they or their partner have needed fertility treatment like IVF to get and stay pregnant, though fewer were actually able to access it, a 2024 KFF survey said.

Providing accommodations and lowering costs are “two sides of the access coin” for fertility care, and workers need both, said Hofstra University law professor Madeleine Gyory.

If a worker can’t take time off for appointments, then cheaper treatment and greater health-care options are moot, she said.

Trump in February signed an executive order to expand access to IVF. He’s advanced that agenda including through Labor Department guidance clearing a path for employers to offer more standalone insurance coverage for fertility treatments.

Those accessibility plans have their own limitations in addressing IVF’s high price tag. But a new Republican majority at the EEOC could create a rule change that would make it harder for employees to get accommodations often sought for fertility treatments, like leave and remote work.

“If you’re serious about making fertility treatment available to people, then you don’t allow employers to punish them for seeking those treatments,” said Dr. Jared C. Robins, CEO of the American Society for Reproductive Medicine.

Workplace accommodations, like allowing employees to arrive to work late due to treatment, can be a significant factor for patients during IVF cycles, which require frequent monitoring and routine doctor appointments, Robins said.

EEOC Rules

The EEOC published its final rules on PWFA enforcement in 2024 that explicitly named fertility and abortion as conditions that employers should accommodate for unless it would cause “undue hardship.”

Lucas, then a minority-party commissioner, voted against the rules and published a 16-page statement outlining her opposition to their “needlessly expansive” language. Although her statement didn’t mention abortion, a facet that was challenged in lawsuits by religious groups and Republican-led states, she took more direct aim at fertility treatment as an accommodation for “potential or intended pregnancy.”

The EEOC “paradoxically interprets a statute requiring employers to accommodate a worker’s pregnancy and childbirth into a provision that also requires accommodation of a worker’s inability to become pregnant,” she wrote.

Lucas was unable to hold votes to revise the rules until the recent confirmation of Republican Commissioner Brittany Panuccio, which returned the EEOC’s quorum.

A spokesperson for the commission declined to comment on the PWFA rules and the agency’s plans.

A federal judge in Louisiana already ordered the EEOC to vacate the rules’ language about “purely elective abortions.” But the court declined to make a judgment on the inclusion of medically necessary abortions or fertility treatment, which were part of the US Conference of Catholic Bishops’ challenge to the rules.

“Lucas in her public statements has taken real issue with PWFA applying to women’s capacity to get pregnant. That encompasses fertility treatment,” said Fisher Phillips partner Deniz Uzel Reilly.

“I wouldn’t anticipate fertility treatments to be encompassed in any future definitions,” she said.

Other groups like the Bishops organization have said rules requiring accommodations for infertility treatment, as well as contraception and abortion, violate their religious beliefs.

Even with the order vacating part of the rule, the Bishops said they’re “subject to a legal requirement prohibiting” their right to exercise their religious beliefs.

Workers’ Options

Before the 2022 law, workers relied on the Americans With Disabilities Act or the Pregnancy Discrimination Act, but neither included as expansive or explicit accommodation requirements for fertility.

Reproduction has been interpreted as a “major life activity,” which grants workers experiencing infertility a level of discrimination protections under the ADA, Reilly said.

However, the PWFA created an “avenue for accommodation” for fertility treatment care, Reilly said.

The PWFA makes it easier for an employee to qualify to seek accommodations as they need not prove they’re disabled, only that they have a “known limitation” related to pregnancy.

Unlike the ADA, the PWFA also requires employers to make accommodations even if it would allow a temporary suspension of the essential functions of their job, which is a substantial expansion of the ADA’s standard, according to Reilly.

In fiscal year 2024, the EEOC received 2,729 charges under the PWFA. The EEOC hasn’t reported data breaking down how many involve employees trying to get pregnant.

Fertility Claims

With less room to sue for fertility accommodations pre-PWFA, IVF-related employment law claims have appeared mostly in gender and disability bias suits.

A recent lawsuit filed by a former executive at cryptocurrency exchange Kraken says the company discriminated against her in part due to her efforts to become pregnant, including taking time off for IVF appointments.

While most client inquiries around the PWFA are about accommodating pregnant or breastfeeding workers, Reilly said she’s also received questions about fertility treatment.

“If Chair Lucas was to amend the regulation to explicitly remove that language, employers would no longer feel that obligation to provide employees with that time,” she said.

Necessary time off and remote work accommodations are often less available for low-income workers, who are likely to feel the brunt of such a change from the EEOC even as the administration seeks to lower treatment costs, Gyory said.

“Lowering of the cost really needs to go hand in hand with making sure employers, whether through legal requirements from the EEOC or not, are being flexible with actually allowing people to access the treatment even if it goes down in price,” she said.