Overturning of Roe v. Wade: What Workers Need to Know

By now, everyone not living under a rock knows that the U.S. Supreme Court has overturned the federally-protected right to abortion that was afforded with the 1973 decision of Roe v. Wade. In the most recent case, Dobbs v. Jackson Women’s Health Organization, the court held that states are now free to pass laws that outlaw abortions.

As Los Angeles employment attorneys, we have been weighing the potential impact this might have on people in the workplace. The ripple effect isn’t yet clear, as this is a legal situation with a lot of uncertainty in the days ahead. Much of it may come down to the state where the worker is employed. (it’s generally the state where the employee works, not necessarily where the employer is based, that decides what state laws apply.) California state law protects the right to an abortion, and recent legislation also protects those in the state from essentially “aiding and abetting” abortion from individuals who cross state lines to obtain one.

But that doesn’t mean there may not be some impact to California workplaces as result of Roe being overturned. Some examples may include:

Discussing abortion at work. Of course, this has always been something of a problematic topic in any social setting because opinions are so strong. It’s understandable – especially under the current climate – that employers may want to enact policies to restrict these discussions on-the-clock, as it may be polarizing and damaging to team dynamics. However, those that do need to be careful that they don’t run afoul of the National Labor Relations Act of 1935. This provision of the law allows employees (even if they aren’t unionized) to discuss terms and conditions of employment. This typically includes things like wages and benefits, but it might also extend to healthcare coverage for abortion. Another potential problem that might arise with abortion discussions at work might be a defamation civil tort. Employees – or even the company itself – could be sued if a false rumor of an illegal abortion gains traction.
Less healthcare benefits where abortion is concerned. Title VII of the Civil Rights Act allows employers to extend healthcare insurance benefits for the purpose of covering abortions. It does not, however, require it – unless situations arise where continuation of the pregnancy would result in medical complications that would put the mother’s life at risk. Employers can even go a step further, if they choose, and extend benefits that go beyond just the abortion, to include related costs, like travel. Lots of companies have underscored their commitment to continue this, even in states where abortion is effectively outlawed. Our Los Angeles employment lawyers are concerned there could be potential legal implications for doing this, given that some states have laws that allow private citizens to pursue litigation against not only providers of abortion, but anyone who “aids and abets an abortion.” That can include paying or reimbursing the costs of abortion through insurance or otherwise. Private citizens are able to collect money if they’re successful in their lawsuits. On the surface, it would seem that the federal Title VII would preempt state laws to the contrary. That said, it’s not outside the scope of possibility that in today’s political climate, there will be some courts that will uphold state provisions on abortion aiding and abetting – even in contradiction of federal law.
Medical confidentiality. Abortion is generally considered a health care matter, and as such, may be subject to an accommodation request per the Americans With Disabilities Act of 1990, and that information must be kept confidential by the employer. But what if the abortion was unlawful according to state law? The rules for employers aren’t quite as cut-and-dried now.

Workplace discrimination. Title VII bars discrimination of employees by employers on the basis of abortion or consideration of one. Similarly, employers can’t discriminate against workers who refuse to have abortions. The Pregnancy Discrimination Act of 1978 disallows discrimination on the basis of pregnancy or a related medical condition – which unequivocally includes abortion. Theoretically, federal preemption should keep this protection in place, regardless of state law, but there have yet to be any direct legal challenges, so it may be a matter of time before we see how this plays out in practice. What we may end up seeing more of with forced pregnancy and birth is caregiver discrimination, also sometimes referred to as family responsibilities discrimination. This is different treatment workers receive from their employer based on the worker’s family caregiving responsibilities. This can include parents caring for young children, as well as adult children caring for their aging parents. Unfortunately, this form of discrimination may not be the foundational basis for litigation because only a handful of states and cities have carved a protected class for caregivers. (California is not among those that recognize caregiver responsibility discrimination.) Lastly, there may be claims of workplace retaliation, which occurs when an employer reacts negatively to an employee’s engagement in protected activity – which may include obtaining an abortion.

The bottom line is that we do not know the full potential impact of Roe‘s reversal in the employment context. There will likely be a flood of statutory changes and litigation leading to new case law that helps define what employers can or can’t do in terms of supporting employees’ ability to obtain abortions. Working with an experienced employment law attorney in Los Angeles is an imperative.

Additional Resources:

In Response to Supreme Court Decision, Governor Newsom Signs Legislation to Protect Women and Providers in California from Abortion Bans by Other States, June 24, 2022, Office of Governor Gavin Newsom