Employers' stance on abortion could spur discrimination claims
For employers, company messaging is not the only area that needs to be approached with care.
In the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade last month, companies that have publicized their stance on abortion will not only need to keep abreast of a growing patchwork of state laws restricting abortion access, but those related to workplace discrimination and employees’ social media use, as well.
Employers that are voicing pro-choice sentiments and rolling out policies that reflect that stance could face hostile work environment or even religious discrimination claims from workers who feel differently, attorneys say. Employers that have vocally celebrated the Dobbs decision could face similar claims.
Related: The reversal of Roe v. Wade: 3 things to know and 3 steps to evaluate your benefits offerings
“You may not even change any of your policies; you may not provide any benefits,” said Emily Harbison, a partner at the Houston office of Reed Smith, referencing the decision by many companies to start providing travel benefits so that employees can access out-of-state abortion services.
“It could be the communication from the company. It could be your manager discussing it in a way [that] … could lead some people to say, ‘I’m being harassed or in a hostile work environment based on my religious beliefs.’”
Harbison referenced a LinkedIn post she came across shortly after the release of the Dobbs decision. Written by a plaintiffs’ attorney Harbison declined to name, the post said the attorney had heard from many employees who were pro-life because of their religious beliefs and were uncomfortable with the pro-choice stances their employers were taking.
“He was saying: ‘If you or anybody that you know feels like you have been experiencing a hostile work environment or harassment due to your religious convictions, you may have a claim,” Harbison recalled.
Employers that have expressed a pro-life stance may not be exempt from worker claims involving religious discrimination, either. In June, a synagogue in Boynton Beach, Florida, filed a lawsuit challenging a state law that bans abortions after 15 weeks of pregnancy. According to the lawsuit, the state law violates the religious freedom of Jews because Judaism dictates that “abortion is necessary if required to protect the health, mental or physical well-being of the women or for many other reasons not permitted (by Florida’s law).”
Workers who practice religions with a similar view of abortion also could have grounds to sue a pro-life employer, citing a hostile work environment or discrimination based on religion, Harbison said.
Such discrimination in the workplace is banned under civil rights laws—including Title VII, which also prohibits employers from discriminating, harassing, or retaliating against workers for having or considering having an abortion—even post-Dobbs.
For employers, company messaging is not the only area that needs to be approached with care. Since Politico obtained a draft of the Dobbs opinion in May, many people have voiced their views of abortion and reproductive health care on social media—sometimes on professional platforms such as LinkedIn, where their employer is identifiable, or with explicit references to their workplace.
Under Section 7 of the National Labor Relations Act, most private-sector employees have a right to band together with their colleagues to discuss their work conditions, including via social media, making it sometimes tricky for employers to determine the extent to which they can regulate employees’ social media activity.
In 2020, divisive issues such as the pandemic and the racial justice protests that followed the murder of George Floyd similarly sparked impassioned social media activity. But two years later, many employers are still struggling to find the best approach for handling social media activity by employees that runs counter to the company’s interests.
“I don’t think employers have found magic language that protects them but also protects employees—you’re threading a very fine needle,” Harbison said.
Adding to the challenge was President Joe Biden’s appointment of Jennifer Abruzzo as general counsel of the National Labor Relations Board, Harbison said. She succeeded Peter Robb, who’d been appointed by President Donald Trump.
Harbison called Arbuzzo ”far more labor-friendly, union-friendly, employee-friendly, and is very, very outspoken about Section 7 rights. My experience is they will go after social media policies … saying, ‘This violates the act.’”
In this legal landscape, making sure managers understand how their conduct concerning abortion issues could brush up against the law is key, the attorney said.
“It’s important for companies to inform their managers that … this is a highly sensitive topic—we need to be respectful of people’s viewpoints on all areas,” Harbison said.
She said companies need to remind “supervisors that just because abortion in and of itself isn’t a protected class under discrimination laws doesn’t mean that a plaintiff couldn’t still make a claim related to conversations or policies or behavior around abortion, or policies related to abortions.”
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