The U.S. Supreme Court recently decided the Dobbs v. Jackson Women’s Health Organization case (Dobbs). If you’re not familiar with that case’s name, you’re probably familiar with the fact that it overturned Roe v. Wade (Roe). For the last 49 or so years, Roe has granted the constitutional right to an abortion. Now, states are free to pass laws that outlaw abortions.
What effect will overturning Roe have on the workplace? It’s hard to say for sure right now, as the legal situation is fairly fluid with a lot of uncertainty for the foreseeable future. Then there’s the fact that you also have to consider the location of the worker.
Generally speaking, where the employee works (not where the employer is based) decides what state laws apply, whether they’re laws concerning abortion or worker rights. That being said, most workers shouldbe aware of the following potential issues or changes as a result of Roe getting overturned by Dobbs.
Talking About Abortion at Work
Talking about abortion in most workplaces has always been problematic, with almost everyone having a strong opinion on the issue. So it’s understandable that many employers want to restrict employees’ discussion about this polarizing topic.
Employers must be careful about restricting these conversations because these rules could run afoul of the National Labor Relations Act of 1935 (NLRA). This is because the NLRA allows employees, including those not in a union, to discuss the terms and conditions of their employment. This includes pay and benefits, such as healthcare coverage for abortions.
Another issue when talking about abortion at work is when it could lead to the civil tort of defamation. For example, it could be defamation per se if someone spreads a rumor (that’s false) about another worker who got an illegal abortion.
Reduced Healthcare Benefits Relating to Abortions
Title VII of the Civil Rights Act of 1964 (Title VII) allows employers to provide health insurance benefits that cover abortions. However, Title VII doesn’t require employers to provide this benefit, except in situations where continuing the pregnancy would put the mother’s life at risk or when medical complications arise from an abortion.
Employers can also go even further and provide benefits that don’t just cover the abortion itself, but related costs, such as travel expenses. Some companies that have done this include:
• Levi Strauss
There’s the possibility that these travel benefits and insurance coverage for abortion could be in jeopardy because of laws in certain states like Texas and Oklahoma. These states have laws that permit private citizens to bring lawsuits against not just abortion providers, but anyone who “aids or abets…an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise…” These laws also allow these private citizens to collect money if they are successful in their lawsuits.
It’s unclear whether these provisions will survive legal challenges, as cases addressing them are still working their way through the courts. Besides the question of private citizens collecting “bounties” for enforcing state abortion laws, another question is what happens when federal law requires employers to pay for abortions in certain cases (as required by Title VII), but state law says any assistance given to anyone having an abortion is illegal?
At first glance, it seems like Title VII’s abortion coverage requirements should trump state laws outlawing the “aiding and abetting” of abortions. This is because Title VII is a federal law and due to preemption, Title VII should override state law.
Yet in today’s social and political climate, it’s not far-fetched to assume at least some courts will uphold the state aiding and abetting laws, even when they contradict federal law. Another thing to keep in mind is that these private citizen enforcement provisions were enacted to circumvent Roe.
Now that Roe is no longer good law, anti-abortion laws don’t need these private-citizen-bounty provisionsanymore as government officials can now enforce abortion restrictions. So will states get rid of these aiding and abetting provisions? Or will they modify them to allow prosecutors to enforce them instead of private individuals?
Because no one yet knows the answers to these questions, risk-averse employers may decide to stop offering any healthcare benefits relating to abortions. Or this uncertainty could prevent employers from considering such benefits in the future.
Confidentiality of Medical Information
Imagine an employee needs a reasonable accommodation at work for a disability that’s recognized by the Americans with Disabilities Act of 1990 (ADA). During the course of the accommodation request, the employee reveals she recently had an abortion. The employer will need to keep this medical information confidential as required by the ADA.
But what if the abortion was illegal under state law? Would preemption mean the ADA’s requirements still apply and override any state laws to the contrary? Only time will tell.
Title VII prohibits employers from discriminating against employees because they had an abortion or are considering one. Employers are also not allowed to discriminate against an employee because they refuse to have an abortion.
The Pregnancy Discrimination Act of 1978 (PDA) makes it clear that employees are protected from discrimination because of their pregnancy or a related medical condition (which includes abortions).
Again, preemption would seem to keep these discrimination protections in place, even if state law says otherwise. We won’t know for sure if this is the case until these questions get presented in court.
Another type of workplace discrimination is caregiver discrimination. Also known as family responsibilities discrimination, this discrimination occurs because of an employee’s family caregiving responsibilities. These usually include caring for a young child or aging parent. With more pregnant workers presumably carrying to term, there’s potential for caregiver discrimination to increase.
The scariest part is that caregiver discrimination is largely legal. This is because only a handful of states and cities have created protected classes based on caregiving responsibilities.
There are some forms of caregiver discrimination that are illegal at the federal level because they involve other types of prohibited discrimination, like pregnancy, disability or sex discrimination. But many instances of caregiver discrimination don’t involve these forms of discrimination.
Finally, there’s the potential for retaliation. This occurs when an employer takes revenge against an employee for engaging in a protected activity. A protected activity could include standing up for an employee who wants to get an abortion against the employer’s wishes.
The Employee Retirement Income Security Act of 1974 (ERISA) outlines how employers should operate and administer employee benefit plans for their employees. This includes employment health benefits that cover travel expenses for abortions.
ERISA is a federal law, so it should protect abortion-related benefits from state law, right? Maybe not, as ERISA’s ability to preempt state law doesn’t always apply when it conflicts with a state criminal law.
Fewer Women and Minorities in the Workplace
The coronavirus pandemic reminded us that women generally have a bigger burden than men when it comes to unpaid work, like childcare and housework. If restrictions on abortions mean more women have children, then we can expect this trend to continue. As a result, more women will face pressure to stay home due to childrearing obligations instead of working outside the home.
Research indicates that abortion restrictions reduce a woman’s labor participation and earnings. It’s also believed that making abortion inaccessible will have a disproportionate impact on people of color and lower-income groups.
One law already in place that can help parents with childcare obligations is the Family and Medical Leave Act (FMLA). But it has several limitations, such as:
• Not applying to small employers (such as those with less than 50 employees).
• Not being available to employees unless they have worked at least 1,250 hours for 12 months before taking FMLA leave.
• The leave being unpaid and usually limited to 12 weeks over 12 months.
The post-Roe landscape is still unknown, especially in the employment context. Over the next few years, lawsuits will help define what employers can or can’t do in terms of supporting their employees’ ability to get an abortion. For more information on what Roe getting overturned can mean for workers, including additional discussion on some of the above issues, please read Amy Epstein Gluck’s great blog post.