Employers Offering Abortion Coverage: Some Legal Considerations
While businesses seek ways to offer reproductive healthcare, one thing seems clear: The vast majority of employees under the age of 40 want to work for a company that supports access to abortion.
A new study from LeanIn.Org, taken after the Dobbs decision, reveals that most employees under age 40, regardless of their political affiliation, want to work for a company that supports safe, affordable access to abortion. The key findings of the study include:
- 76 percent of women are concerned that the overturn of Roe will negatively impact women’s ability to advance in the workforce.
- This sentiment is even stronger among certain groups of women—for example, 84 percent of women under 40, and 82 percent of women of color, are concerned.
- 82 percent of women feel that having control over whether and when they have a child is critical to pursuing their career goals.
The data from the study shows that women overwhelmingly want to work for companies that support access to abortion. Among working women under age 40, 81 percent of respondents said that supporting access to reproductive healthcare (including abortion) demonstrates an organization’s commitment to supporting and advancing women; 76 percent are more likely to want to work for a company that supports abortion access; and 78 percent think their employer should take action to protect abortion access in response to the Supreme Court decision overturning Roe.
Interestingly, the study shows that access to abortion is important to a vast majority of women regardless of political affiliation. A majority of Republicans (63%), Democrats (84%), and Independents (77%) are more likely to work for a company that supports access to abortion, per the report.
Businesses Step up to Provide Access to Reproductive Care
Since the leaked draft of the Dobbs opinion in early May, more and more companies have announced measures intended to help employees who need abortion services and reproductive healthcare, regardless of where they reside. In May, Forbes published a list of businesses that have committed to providing employees with access to abortion, as well as other expanded benefits. Many of the listed companies have adopted a travel reimbursement policy for employees and their dependents to travel out of state for the purpose of reproductive healthcare. Other companies have created a relief fund for women and people across the gender spectrum affected by legislation in states restricting access to abortion.
Ride-share companies Uber and Lyft also developed policies in response to (and anticipation of) the Dobbs decision. In addition to offering health insurance coverage for “a range of reproductive health benefits, including pregnancy termination,” Uber offered to pay legal expenses for any driver sued under state law for providing transportation to a clinic. Lyft, which had previously said it would cover travel expenses for abortions, announced that it was expanding its “legal defense commitment” to protecting drivers who may be sued for taking people to clinics.
Other companies have shown a commitment to reproductive health by offering to pay for expenses associated with medical procedures and by expanding pregnancy loss leave to cover employees who get abortions. Walmart, the nation’s largest private employer, with over 1.6 million workers, said on August 19 that it would expand its healthcare plans to cover abortion and related travel expenses.
One of the businesses to react swiftly to the Supreme Court overturning Roe was Dick’s Sporting Goods. In the hours after the decision, CEO Lauren Hobart declared that Dick’s will provide up to $4,000 in reimbursement for employees to travel to the nearest location where abortions are legally available. She said the benefit will extend to employees’ spouses or dependents enrolled in the company’s medical plan, along “with one support person.”
Discrimination Against Pregnant Women
Just two weeks after the Dobbs decision, a conservative legal group led by Trump adviser Stephen Miller asked the Equal Employment Opportunity Commission (EEOC) to open an investigation into Dick’s for “engaging in unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964.” In a July 13 letter submitted to the EEOC, America First Legal claimed that Dick’s policy discriminates against pregnant women who opt not to abort.
Title VII, as amended by the Pregnancy Discrimination Act of 1978, prohibits discrimination with respect to compensation, terms, conditions, or privileges of employment because of childbirth. The argument is that the company’s decision to provide the travel benefit—which is properly classified both as compensation and as a privilege of employment—to a pregnant woman who chooses to abort her child, while denying any equivalent compensation or benefit to a pregnant woman who chooses to carry the pregnancy to term, facially violates the statute.
Efforts like this appear to be a push for the extension of reverse discrimination laws, unlike the traditional employment law setting where a historically disadvantaged group is provided with protection from discrimination. The fallacy in this argument is that the EEOC has already pronounced that the Pregnancy Discrimination Act protects people from being fired for having an abortion or contemplating having an abortion, and protects employees who choose not to have an abortion from adverse consequences. Policies that support reproductive rights are not facially invalid. To the contrary, they would appear to be facially neutral.
In other efforts to thwart businesses from espousing a purportedly “woke” agenda, some states are looking to ban companies from doing business in the state. In May, a group of Texas state representatives sent an open letter to the CEO of Lyft announcing they would introduce legislation to bar corporations from doing business in Texas “if they pay for elective abortions or reimburse abortion-related expenses.” Other legislators have vowed to criminally prosecute any person or business that aids and abets another person in obtaining an abortion.
As businesses confront abortion and reproductive rights, one thing is clear: The vast majority of employees under the age of 40 want to work for a company that supports access to abortion. An overwhelming majority also want to work for a company that will take action to protect abortion rights in response to the Dobbs decision. Businesses, and the free market in general, are typically very adept at course correction. The sheer number of businesses that are making efforts to support employees who want access to abortion is a likely indication that a course correction may already be under way.
Jeffrey Campolongo is the founder of the Law Office of Jeffrey Campolongo, which, for over a decade, has been devoted to counseling employees, working professionals, and small businesses in employment discrimination and human resource matters.
From: BenefitsPRO