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Abortion-Related Workplace Discrimination Still Banned Post-Roe

July 6, 2022, 9:30 AM

Pregnancy discrimination laws will continue to protect employees from reproductive health-related discrimination and harassment in the workplace even after the US Supreme Court eliminated abortion rights on the federal level.

Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, is expected to have ripple effects for women in the workforce. More workers who might otherwise have had abortions are likely to experience pregnancy-related health impacts that could lead to more leave or disability accommodation requests.

The decision also sets the stage for more challenges from employers that disagree with employees’ reproductive health-care decisions on religious grounds.

Even in states with pro-abortion policies, employees in certain private-sector work environments may fear being harassed or losing their jobs if they seek an abortion.

As it stands, employers can generally still expect to be held liable under the Pregnancy Discrimination Act and Title VII of the 1964 Civil Rights Act if they treat employees differently for having had an abortion, seeking one, or choosing not to have one. Some states—typically those where abortion will remain legal post-Dobbs—also have heightened pregnancy discrimination protections or explicit abortion nondiscrimination statutes.

“This is the time for employers to be taking seriously the need for them to protect employees who could become pregnant,” said Emily Martin, vice president for education and workplace justice at the National Women’s Law Center.

Precedent Favors Protection

Dobbs didn’t touch on employment discrimination, but did say that a state’s regulation of abortion “is not a sex-based classification and is thus not subject to the ‘heightened scrutiny’ that applies to such classifications.” This reasoning could form the basis for an argument that abortion isn’t protected under Title VII’s sex discrimination provisions, said E. Pierce Blue, an employment attorney at Morgan, Lewis & Bockius LLP.

“But that’s going to be a tough argument to make,” he said. Several federal appeals courts and the US Equal Employment Opportunity Commission uniformly have said abortion falls under the umbrella of pregnancy discrimination.

Even the conservative US Court of Appeals for the Fifth Circuit ruled in 2019 that a Louisiana bartender couldn’t be fired for obtaining an abortion. That ruling leaned on similar decisions from the Third and Sixth circuits.

Privacy rules and considerations also provide a barrier to employer inquiries about workers’ reproductive health decisions. Under new guidance from the US Health and Human Services Department, doctors and other health-care providers cannot disclose information about a patient’s pregnancy or abortion unless required by state law or a court order.

The Supreme Court has not opined on the particular question of whether pregnancy discrimination includes abortion. But all it would take is one high court case to wipe out that precedent, Martin said.

“This court’s hostility toward recognizing the ways in which restrictions on reproductive healthcare can constitute sex discrimination, does not fill one with confidence,” she said.

Religious Arguments

Title VII’s protections against sex and pregnancy discrimination also generally override employers’ religious objections. Only religious institutions or organizations, such as a church or temple, fall within Title VII’s religious exemptions.

Courts have taken up multiple cases where religious employers, particularly schools, have argued that they have a First Amendment right to have policies that restrict employees’ reproductive health-care choices. Generally they’ve held that employers can’t discriminate based on sex even if the policy purportedly is based on religious doctrine.

But Title VII’s ministerial exception, which bars clergy members from bringing an employment discrimination claims against religious institutions, can be broad. The reasoning for the exception is to allow churches to organize their leadership without government intervention.

The Seventh Circuit, for example, ruled that an Illinois church could raise the ministerial exception to block a gay music director’s harassment claims.

Further expanding that exception could block women working for religious institutions from filling discrimination claims related to abortion, Martin said.

The Supreme Court also overturned the Lemon test for determining church-state separation when it determined a high school football coach should not be prohibited from praying on the field. The test, which comes from the 1971 ruling Lemon v. Kurtzman, established a three-prong test to determine whether a “reasonable observer” would consider government action an endorsement of religion.

In their most recent decision, the justices said the Establishment Clause of the First Amendment “must be interpreted by reference to historical practices and understandings.” But what that historical approach will ultimately look like is still in question.

The new test may open the door for more public-sector employers to rely on the First Amendment when employees allege harassment or discrimination based on their reproductive choices.

“That’s another very troubling dimension where I expect one of the next rounds of legal battles to be,” Martin said.

Disability Accommodations

The Americans with Disabilities Act, which prohibits workplace discrimination against people with disabilities and requires an employer to provide reasonable accommodations to workers and job applicants with a disability, also provides some protections related to reproductive health.

Pregnancy alone isn’t considered a disability under the ADA unless the person is experiencing complications.

But in states where getting an abortion is no longer an option, more women will likely experience health issues related to pregnancy or childbirth, potentially leading to greater accommodation requests that employers will have to address.

“There will be more situations where a woman would have previously obtained an abortion because of health concerns, but now she may develop health problems requiring reasonable accommodation,” said Brian Sutherland, an Atlanta-based plaintiffs’ attorney with Hall & Lampros LLP.

The US has the highest maternal mortality rate among developed countries, an undersupply of maternity care providers, and relatively low access to postpartum care, according to the Commonwealth Fund, a private health-care foundation.

Abortion restrictions also lead to a rise in unsafe abortions, and households worldwide experience $922 million in income loss because of long-term disability related to those procedures, according to the World Health Organization.

“I don’t think employers can sit on the sidelines when they want their workforce to risk their health by working in states where if somebody needs emergency care that that care may very well not be available even if the consequences are extremely dire, even life and death for that person,” Martin said.

To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com