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Abortion
travel benefits newly offered by many American employers constitute intentional discrimination under Title VII of the Civil Rights Act of 1964 and likely under the Americans with Disabilities Act as well.
When the
Supreme Court
released its decision striking down
Roe v. Wade
and allowing states to pass abortion restrictions, companies across the country announced they would offer a new benefit to employees in states where abortion is restricted. Dick’s Sporting Goods CEO Lauren Hobart, for example, recently announced her company will pay up to $4,000 in travel expenses for employees, spouses, and dependents in the company’s medical plan who wish to obtain out-of-state abortions. Some employers offer abortion travel benefits to employees who wish to travel more than a certain number of miles to obtain abortion services.
These benefits, however, are discriminatory — whether the employers realize it or not.
Title VII prohibits employers from discriminating with respect to “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” In 1978, Congress amended the law to expressly include a prohibition against pregnancy discrimination, requiring that all employees, regardless of pregnancy status, “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs.”
Providing financial benefits to employees who wish to travel to terminate pregnancies while providing no equivalent benefits to employees who wish to travel to receive medical care to maintain pregnancies or to receive medical care for children in the womb is pregnancy discrimination. The formerly pregnant employee who returns from her abortion is rewarded with cash benefits. The pregnant employee who returns still pregnant is not so rewarded.
Employers also have perverse profit incentives to provide superior benefits for employees who choose to abort children than those provided to employees who choose to birth and raise children. Those who choose abortion are likely to require shorter amounts of pregnancy-related leave and less family and medical leave to care for sick children or to attend parent-teacher conferences. The employee who chooses abortion is a lesser burden on an employer’s health insurance costs than one who maintains a pregnancy and thereafter raises a child.
However, as the Supreme Court observed in 1983 in the Newport News Shipbuilding v. EEOC case, “discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex.” And, as the Supreme Court held in Young v. UPS in 2015, employers normally can’t provide a benefit to some workers that it does not provide to pregnant workers simply because it is more expensive or less convenient to provide the benefit to the pregnant woman than to the nonpregnant one.
Equal Employment Opportunity Commission guidance notes that Title VII prohibits discrimination against an employee “based on her decision not to have an abortion.” Its guidance also emphasizes that pregnancy- and childbirth-related medical needs must be treated the same as other medical needs and that pregnancy- and childbirth-related benefits must be equivalent to other benefits.
Moreover, the provision of fringe benefits only to those pregnant employees who will terminate pregnancies may contribute to a religiously hostile environment against those pregnant employees whose religious beliefs prohibit abortion.
Employers need to consider not only Title VII’s prohibitions against discrimination based on pregnancy and religion but also the Americans with Disabilities Act’s prohibition against discrimination based on disability. The ADA, which exists to ensure that employees with disabilities are not disadvantaged as compared to others, specifically forbids employers from discriminating on the basis of disability “in regard to [the] privileges of employment,” including employment benefits. The ADA may be interpreted to hold that the employer that provides abortion travel benefits must provide equivalent benefits to persons with disabilities who travel to receive desired healthcare services.
Employers should examine proposed employment benefits in light of the requirements of anti-discrimination laws. And board members and shareholders should assess fiduciary responsibilities in light of such policies.
Sharon Fast Gustafson is a former general counsel of the Equal Employment Opportunity Commission and represents employers and employees in employment-related legal matters.
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