Legal Intelligencer
(By Alexandra Farone and Jessica Altobelli)
Regardless of the outcome of the Dobbs case, key employment discrimination standards on the topics of pregnancy and abortion will remain unchanged absent significant legislative amendment to Title VII.
By now, most of us have heard of the infamous U.S. Supreme Court draft opinion leak in the case of Dobbs v. Jackson Women’s Health Organization. The Supreme Court is expected to officially issue its opinion in early July, and if the leaked opinion is an accurate foreshadowing, the court will overturn Roe v. Wade and Planned Parenthood v. Casey to abolish the previously held constitutional right to pre-viability abortions. The leaked opinion, and the larger topic of abortion generally, are often considered third-rail topics in many workplaces, given the strongly held opinions on both sides of the issue. For the same reasons, current U.S. Court of Appeals for the Third Circuit law concerning pregnancy- and abortion-related discrimination, also tends to be an avoided topic. However, attorneys are likely to see a marked uptick in questions from employer-clients concerning their current legal obligations toward pregnant employees or employees who have sought or obtained an abortion. Regardless of the outcome of the Dobbs case, key employment discrimination standards on the topics of pregnancy and abortion will remain unchanged absent significant legislative amendment to Title VII.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII to prohibit sex discrimination on the basis of pregnancy. Specifically, the PDA extended the definition of “on the basis of sex” to include—but is not limited to—pregnancy, childbirth or related medical conditions. See 42 U.S.C. Section 2000e(k). Courts have interpreted “related medical conditions” to include postpartum medical complications as well. Courts are currently split as to whether breastfeeding or its complications are protected under the PDA, but the current trend tends to hold that they are PDA-covered conditions. The Third Circuit has not yet ruled on the issue.
It is less widely known, however, that the PDA also prohibits discrimination against an employee because she has elected to have an abortion. The Equal Employment Opportunity Commission (EEOC) guidelines interpreting the PDA state that the statute protects against adverse employment action “merely because [an employee] is pregnant or has had an abortion.” EEOC guidelines are not binding authority, but the Third Circuit has adopted this interpretation of the PDA.
In 2008, the Third Circuit decided in Doe v. C.A.R.S. Protection Plus, 527 F.3d 358 (3d Cir. 2008) that the protections of the PDA extend to women who have elected to terminate their pregnancies. In C.A.R.S., a female employee’s doctor recommended that she terminate her pregnancy due to severe health issues of the fetus. Immediately after Doe’s pregnancy was terminated, she requested a one-week leave period from employment to hold a funeral. Doe was terminated while on leave, and after her supervisor made a remark in which he indicated that Doe “did not want to take responsibility.” This statement’s exact meaning was unclear, but the court determined that the remark may raise a reasonable inference that the abortion was a factor in terminating Doe’s employment. After reviewing the PDA, its legislative history and EEOC interpretive guidance, the Third Circuit construed the phrase “related medical conditions” to mean that discrimination against a woman who opts to undergo an abortion constitutes sex discrimination under Title VII. The Sixth Circuit has held similarly. See Turic v. Holland Hospital, 85 F.3d 1211 (6th Cir. 1996).
Because the pending Supreme Court decision will likely only affect the constitutional right to pre-viability abortion, it will not likely affect the statutory language of the PDA or its interpretation. In order for current Third Circuit precedent on the matter to change, Congress would likely have to further amend Title VII to explicitly state that abortion is excluded from the definition of a pregnancy- or childbirth-“related medical condition.”
Most often, the PDA is implicated when a pregnant employee is treated differently than a nonpregnant employee due to the pregnancy itself. For example, pregnant employees may not be singled out to require medical clearances to perform their job duties if such clearances are not required of employees who are not pregnant and have similar work abilities. Similarly, if an employee is absent for pregnancy-related reasons, the employer must hold her job open for the same length of time that jobs are held open for employees on sick or temporary disability leave.
If an employer allows temporarily disabled employees to take disability leave or unpaid leave, the employer must allow an employee who is temporarily disabled due to pregnancy to do the same. Impairments resulting from pregnancy, such as gestational diabetes or pregnancy-related sciatica, may be disabilities under the Americans with Disabilities Act depending on the particular circumstances. Therefore, employers may have to provide a reasonable accommodation for pregnancy-related disability absent an undue hardship. Often, such accommodations are in the form of modified duties such as weight-related lifting restrictions or alternative work assignments.
Notably, the PDA requires that employer-provided health insurance cover expenses for pregnancy-related conditions on the same basis as expenses for other medical conditions, but the PDA specifies that insurance coverage for expenses arising from abortion is not required unless the life of the mother is endangered, or medical complications arise from the abortion.
Employers should review their policies to ensure they contain adequate protections against discrimination. Specifically, employers should consider all practices that may implicate PDA-covered employees to ensure that no disparate impact will result. Such policies most often include sick leave policies, doctor’s note requirements, remote work policies, short-term disability leave and light duty availability. If the leaked Dobbs opinion becomes the official decision of the Supreme Court, eliminating the constitutional right to pre-viability abortions, some state legislatures and governors are likely to follow suit by passing legislation expanding abortion prohibition in their states. If this occurs, employers with multi-state operations should monitor their policies to ensure that pregnant employees traveling to another state to obtain an abortion are treated no differently than employees traveling out-of-state for any nonpregnancy-related reason.
Alexandra Farone is an associate in the litigation and employment and labor groups of Babst, Calland, Clements and Zomnir. Farone’s employment and labor practice involves representing corporate clients, municipalities, and individuals on all facets of employment law, including restrictive covenants, discrimination claims, human resources counseling, grievances, and labor contract negotiations. Contact her at at 412-394-6521 or afarone@babstcalland.com.
Jessica Altobelli is an associate in the firm’s litigation and employment and labor groups. Altobelli has a broad range of litigation experience in several practice areas including employment, general liability, transportation, and school district defense. Contact her at 412- 394-6557 or jaltobelli@babstcalland.com.
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Reprinted with permission from the May 26, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.