Tuesday, November 15, 2022

EEOC Commissioner targets companies offering employees abortion travel benefits

In the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization that ended federal constitutional protections for abortions as a fundamental right, many employers in states in which abortions suddenly became illegal started offering employees out of state travel benefits for abortion access.

Now, not even five months later, Bloomberg Law reports that Republican EEOC Commissioner Andrea Lucas has launched targeted discrimination investigations against at least three of those companies. 

Title VII grants each EEOC Commissioner the authority to file a Commissioner charge — a charge instituted by a Commissioner after learning about possible workplace discrimination and not by an aggrieved private party. They are rare and the EEOC's Commissioners use this power very judiciously; only three were filed in each of FY 2020 and 2021. Once filed, they follow the same investigatory route as any other charge of discrimination, which includes conciliation and possible litigation after a probable cause finding.

According to Bloomberg, these charges allege that these travel benefits unlawfully discriminate against pregnant employees who choose to carry their pregnancies to term by not offering them similar benefits for their medical needs.

Two reasons stick out as to why these Commissioner charges are doomed to fail, the first practical and the second legal:

1.)  Are there any women who actually need to travel out of state for childbirth? If there was ever a problem searching for a solution, this is it.

2.) Title VII actually makes it clear on its face that an employer is free to provide abortion benefits to employees.
Title VII's definition of "pregnancy" expressly provides that while the law does "not require an employer to pay for health insurance benefits for abortion," it also does not "preclude an employer from providing abortion benefits." That looks pretty dispositive to me. 

If Title VII does not "preclude an employer from providing abortion benefits," it should not preclude an employer from providing abortion travel benefits to employees in states in which abortion is now illegal. This should be case closed, but politics over a hotly contested issue likely suggests otherwise.