In the weeks following the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, much has been written about the impact on women’s rights and reproductive health. Rather than discuss the socio-political issues raised by the Court’s decision in Dobbs, Syntrio feels compelled to discuss the educational impact of the discrimination on the workforce as a whole and precisely the fact the Court’s decision has no bearing on the illegality of discrimination and harassment based on reproductive-health related discrimination regardless of whether a state where an employee works restrict or eliminates the right to abortion.

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits discrimination in the workplace. The Pregnancy Discrimination Act amended Title VII to include discrimination based on “pregnancy, childbirth or related medical conditions” as prohibited under Title VII’s “sex” discrimination prohibition. Under the federal regulations implementing Title VII, “[a]n employer cannot discriminate in its employment practices against a woman who has had or is contemplating having an abortion.” (42 USC section 2000e(k). Accordingly, abortions (or participating in a process to contemplate having one) are prohibited from discrimination by the Act of Congress. They are illegal under federal law, and national appellate precedent agrees with that theory (see Ducharme v Crescent City Déjà vu LLC, 2019-05-13, 5^th Cor. 2019) (holding employee cannot be fired for obtaining an abortion).

The legal analysis above is essential in the wake of the Dobbs decision because there is (and will continue to be) a wide range of beliefs on the Court’s decision and what it means for employers. Many who hold anti-abortion views see Dobbs as a green-light victory for their opinions on the issue and are likely to make comments and decisions based on those views. For this reason, it is critical to educate your entire workforce on the illegality of discrimination and harassment based on reproductive issues and to ensure your crew is safe from harassment and prejudice regardless of your or their views on the subject. Such action will leave employers open to liability.

It is essential to understand that in the coming months and years, some women may need to travel distances to seek an abortion and request accommodation. Employers will need to be careful in evaluating those accommodation requests to ensure there has been no discriminatory action and that policies are applied within the law. Similarly, where some employees may feel empowered to express their views on abortion in the workplace openly, it is essential to understand sensitivity toward the subject and how such expressions can and likely will amount to harassment if done at work.

With the significant legal and privacy implications and the religious arguments that may be made in this area, it is ripe for litigation. Your organization must conduct an extensive program of discrimination education to protect itself from lengthy and expensive legal battles (as well as the negative press). Syntrio has developed a cutting-edge slate of discrimination courses that you will find value in using to educate your workforce on all issues that could lead to discrimination liability. Our courseware is created in an opinion-neutral fashion and merely for education. It will also be critical for you to work with counsel to develop a firm policy and personal touch on this crucial issue facing employers in the current environment. We welcome the opportunity to discuss how our courses can meet your needs in combating employment discrimination and harassment.