There have been several decisions/updates of note recently that have the effect of scaling back changes to the EEOC and related laws from the prior administration. These changes are impacting Maine employment law.
Scope of Coverage under Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA), which became law in June 2023, obligates employers to provide reasonable accommodations for employees with known limitations related to pregnancy, childbirth or a related medical condition. In its regulations, which became effective in June 2024, the EEOC defined “related medical conditions” to include “termination of pregnancy, including via miscarriage, stillbirth, or abortion.” Employers have been obligated to provide reasonable accommodation for employees affected by these situations/conditions. This defining language has been under challenge since its issuance.
On May 21, 2025, a federal judge in Louisiana issued a ruling that struck down the regulations to the extent they included elective abortion as a condition for which an employer had to provide reasonable accommodation. However, the court also affirmed that the need for reasonable accommodation arising from terminations of pregnancy or abortions stemming from the underlying treatment of a medical condition related to pregnancy is not affected by the decision because “such procedures are clearly ‘related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.’”
Workplace Harassment Based on Gender Identity
Since April 2024, the EEOC’s Enforcement Guidance on Harassment in the Workplace has prohibited harassment based on gender identity as a form of unlawful sex discrimination under Title VII. Under the guidance, hostile work environment harassment based on gender identity includes refusing to use an employee’s preferred pronouns (intentional misgendering), denying an employee access to restroom facilities aligned with their gender identity, and similar behavior.
A recent lawsuit, State of Texas v. EEOC, challenged these provisions, claiming that the EEOC was creating new legal obligations rather than interpreting existing law. First, the plaintiffs argued that the EEOC had redefined “sex” under Title VII by expanding the meaning of that term to include gender identity and sexual orientation. The Court agreed with this argument, stating that the EEOC did not have authority to expand the definition of “sex” “beyond the biological binary: male and female.” Second, the Court found that the EEOC’s guidance went too far in requiring employers to implement gender identity accommodations (such as preferred pronouns and bathroom access) and said that refusal of such accommodations does not create a hostile work environment. Therefore, as of May 15, 2025, the Court vacated the gender identity portions of the guidance and those cannot be enforced against any employers. However, while the EEOC is not going to enforce these practices, the ruling does not prohibit employers from permitting recognition of gender identify by using preferred pronouns and permitting bathroom access based on gender identity.
In addition, even if the EEOC will not enforce these provisions under federal law, the Maine Human Rights Act still prohibits discrimination or allowing a hostile work environment based on such action.
NLRB Limits Confidentiality During Workplace Investigations
We have talked about the difficulty employers (both unionized and nonunionized) face in trying to maintain confidentiality during workplace investigations without violating the National Labor Relations Act (NLRA). A May 5, 2025, decision from the National Labor Relations Board (NLRB) illustrates this difficulty.
In the case at issue (Costco Warehouse Corp.), an employee at a retail store accused a co-worker of sexual harassment. All involved employees who were interviewed were asked by management to sign an “Acknowledgement of Confidentiality for Investigations,” which included a statement that the interviewee agree “to maintain the confidentiality regarding this ongoing investigation.” The Acknowledgment also required the interviewee to affirm they did not record the investigation interview and contained a notice that any violation of its terms could result in disciplinary action including termination. The form did advise employees that they could speak to lawyers, government officials and others “about terms and conditions of employment”. At the conclusion of the investigation, the store provided the complaining employee with a letter indicating the accused harasser had been terminated and instructed the employee to keep that information confidential as well.
The NLRB challenged the requirement to maintain confidentiality of the investigation as well as the outcome and the prohibition on recording any part of the investigative interviews on the basis that they violate Section 8(a)(1) of the NLRA by interfering with, restraining, and/or coercing employees in the exercise of their rights under Section 7 of the Act.
The Administrative Law Judge (ALJ) sided with the NLRB, finding the challenged provisions violated the Act because they were overly broad and impermissibly prohibited the employee from revealing matters affecting her and/or other employees’ terms and conditions of employment. The Judge found that the provisions prevented employees from sharing information about harassment complaints, soliciting support from others and discussing the employer’s response. He further found that although there was a “savings clause”, it was not enough to adequately inform employees about their protected rights. The ruling was based on the recent decision in Stericycle, which held that actions that have a reasonable tendency to “chill” employees’ exercise of their Section 7 rights are unlawful.
Not surprisingly, the employer argued that confidentiality is necessary to protect the integrity of the investigation. The ALJ rejected this argument, in part because it found the Acknowledgment was too broad because employees were not able to reveal information beyond what came up during the investigation and because the confidentiality requirement extended beyond the duration of the actual investigation. It is important to note that the prohibition against recording the interviews violated the Act because it limited the employees from recording any conversation between employees and management and was not just limited to the investigation.
Stay Up-to-date On Employment Law Decisions
The decision emphasizes the limitations on confidentiality obligations that are viewed as overreaching. On the other hand, employers have to also be careful to preserve the integrity of an investigative process; finding that balance is increasingly challenging. Rudman Winchell will continue to update you as important employment law decisions are made. If you have questions about how these updates impact your policies or practices, please contact a member of our Employment Team.
