Wednesday, June 29, 2022

“Abortion discrimination” = illegal pregnancy discrimination … even after Dobbs

Is it legal to fire an employee who has an abortion? This is question that a lot of employers and employees will now be asking in light of the Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization that that there is no constitutional right to abortion.

As controversial and divisive of an issue as abortion is (perhaps now more than ever), the law is clear that an employer cannot fire an employee for having one. Nothing the Supreme Court did in Dobbs changes this.

In the EEOC's 2015 Enforcement Guidance on Pregnancy Discrimination and Related Issues, the agency made its position clear:
Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.… Title VII protects women from being fired for having an abortion or contemplating having an abortion.
The courts have universally supported the EEOC's position. It's been the law of the 6th Circuit for more than 25 years and the 3rd Circuit for nearly 15 years. Dobbs does nothing to change this.

Yes, there are limited exceptions. The First Amendment, for example, likely protect religious institutions that take adverse actions against an employee because of an abortion.

For the most part, however, you need understand that whether or not you agree with a woman's right to have an abortion (and they still have that right in states that have not banned it, including the right to travel to those states if possible), abortion discrimination equals pregnancy discrimination. Thus, firing an employee who has (or expresses an intent to have) an abortion is no different than firing that employee because of her pregnancy. 

Dobbs may have eliminated the constitutional right to abortion, but it did not alter Title VII's workplace protections for having one.