Thursday, May 16, 2019

Abortion discrimination = pregnancy discrimination

Thanks to, among other states, Alabama, Georgia, and Ohio (sorry about that last one), the debate over abortion is raging. Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?

Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.


The latest, Ducharme v. Crescent City Déjà Vu, L.L.C. (E.D. La. 5/13/19), concerned an employee fired after requesting two days off to have an abortion. She claimed pregnancy discrimination, and the court held that Title VII’s prohibition against pregnancy discrimination also prohibits abortion discrimination.

The court finds that abortion is encompassed within the statutory text prohibiting adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.” While an abortion is not a medical condition related to pregnancy in the same way as gestational diabetes and lactation, it is a medical procedure that may be used to treat a pregnancy related medical condition. … [A]n abortion is only something that can be undergone during a pregnancy. Title VII requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” A woman terminated from employment because she had an abortion was terminated because she was affected by pregnancy.

This case aligns with the only two appellate courts to rule on the issue, the 3rd and 6th Circuits, as well as the EEOC’s interpretation of the definition of pregnancy.

Case closed. If you learn that one of your employees is having, or has had, an abortion, do yourself a favor and just let her be. Her choice, for which you cannot punish her. Moreover, unlawful discrimination notwithstanding, I promise you that the decision she is making is painful enough, without you exacerbating her pain by firing her.

For more on this case, head over to the Employer Handbook Blog, where Eric Meyer covered it yesterday.

* Image by TitiNicola [CC BY-SA 4.0], via Wikimedia Commons