Republican EEOC Commissioner Andrea Lucas is deploying a rarely used agency procedure to silently initiate targeted discrimination probes against at least three companies providing their employees with abortion travel benefits, five attorneys who have seen the charges told Bloomberg Law.
The “commissioner charges” allege that the employers are favoring workers seeking abortions while discriminating against pregnant workers and disabled workers because they are not offering equivalent benefits for their medical needs, according to the attorneys.
The US Supreme Court’s June 24 Dobbs decision triggered abortion bans in several states, as well as an outpouring of pledges from more than 120 large employers—including major banks, retailers, and tech companies—to cover employee travel needed to obtain abortions in their health-care plans.
The five lawyers, who among them have seen three separate charges signed by Lucas, represent employers that offer abortion travel reimbursement as a benefit and asked that their names not be used for fear of harming professional relationships. They declined to disclose their clients’ names for the same reason.
Lucas’s arguments mirror those made by the agency’s former general counsel, Sharon Fast Gustafson, in a letter sent to employers with such policies last month. The discrimination-based arguments espoused in the charges and the letter are unusual, though abortion travel policies have been criticized on other legal grounds.
Lucas declined to comment for this story, as did the agency. EEOC employees, including commissioners, are prohibited from confirming the existence of ongoing charges or investigations.
Charges Taken ‘Seriously’
EEOC commissioners have the power to launch targeted charges on their own, without informing their colleagues or seeking their approval. But it doesn’t happen often—only three commissioner’s charges were filed in both fiscal years 2021 and 2020.
They are frequently a tool to add new charges to pre-existing cases already brought through the traditional EEOC investigation route, which is initiated by employees of companies where discrimination is allegedly taking place.
As with any charge, a commissioner charge is investigated by an EEOC district office. If the agency believes discrimination occurred, it will try to conciliate with the employer, and if that fails, it can opt to sue. A lawsuit raising novel legal arguments like those articulated in Lucas’s charges likely would require commission approval.
Former Republican EEOC Commissioner Victoria Lipnic said commissioner charges are used judiciously.
“The commissioners take them very seriously, the district office who then has to do the investigation takes them very seriously, and certainly employers who receive them take them very seriously,” she said.
Lucas, appointed by President Donald Trump, has been known to focus on religious rights in the workplace. In late 2020—when Gustafson was still in office and Lucas had just been confirmed—the two participated in a series of listening sessions on religious discrimination. The commission, then chaired by Republican Commissioner Janet Dhillon, later passed updates to its religious discrimination guidance in January without support from Democrats.
Lucas deviates from her fellow Republicans on some issues, arising as a swing vote in the five-member partisan commission. Before joining the panel, Lucas practiced at Gibson, Dunn & Crutcher LLP.
Arguments challenging abortion policies as discriminatory haven’t yet been raised in federal court, but they’ve been cited by a few conservative attorneys targeting these corporate policies.
One America First Legal Foundation, founded by several former Trump administration officials, used some of these discrimination arguments this past summer in a letter asking the EEOC to investigate
Gustafson raised similar discrimination arguments in her letter to employers, which warned of potential commissioner charges, not complaints from employees.
Management-side law firm Littler Mendelson requested in October that the EEOC’s legal counsel investigate Gustafson for “misleading and intimidating employers who lawfully provide travel benefits under their health plans for those who need medical care that is not available in their own states.”
The agency didn’t commit to investigating Gustafson at the time but said her views don’t reflect those of the EEOC.
Employers most often provide abortion access benefits through general health-care travel policies, some of which already existed before the Dobbs decision.
It would be extremely unusual for an employer to have a plan that covers travel for abortion but not for other medical necessities, according to Sharona Hoffman, a professor at the Case Western Reserve University School of Law.
The argument that providing abortion travel benefits is discriminatory to workers who chose to keep their pregnancies or to disabled workers is “creative and novel,” Hoffman said.
While the Pregnancy Discrimination Act of 1978 doesn’t require employers to provide coverage for abortions, it also states that nothing in its text “shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.”
“While it wasn’t precisely designed for this situation, it seems to preclude it in these arguments,” said Emily Martin, vice president for education and workplace justice at the National Women’s Law Center.
—With assistance from Brian Baxter