Published September 21, 2022
In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade, corporations have sought creative ways to provide employees access to abortion.
A slew of businesses have promised to pay abortion travel benefits to employees who must travel out of state or long distances to receive desired abortion services. These businesses include Amazon, Bank of America, Comcast, Goldman Sachs, Kroger, Starbucks, Yelp, and the list goes on.
But employers providing such benefits may want to think twice. Their new policies open the door to expensive, time-consuming employment discrimination lawsuits.
Federal employment law includes prohibitions against discrimination based on sex, pregnancy, and religion under Title VII of the Civil Rights Act of 1964, and against discrimination based on disability under the Americans with Disabilities Act of 1990 (ADA). Under both laws, employers must not discriminate with respect to compensation, terms, conditions, or privileges of employment. Travel benefits certainly qualify.
Title VII and its subpart, the Pregnancy Discrimination Act, neither require nor preclude an employer from providing abortion benefits. The employer who chooses to provide abortion benefits, however, must do so in a non-discriminatory manner. In other words, an employer who grants a financial benefit to an employee who travels to access abortion services to terminate a pregnancy must provide an equivalent financial benefit to an employee who travels to access medical services to maintain a pregnancy or to obtain medical care for an unborn child.
Under the newly announced abortion-travel benefits, employers promise a cash benefit to formerly pregnant employees who return from travel no longer pregnant due to abortion while promising no cash benefit to pregnant employees who return from travel still pregnant. This is pregnancy discrimination plain and simple.
The Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing Title VII and the ADA, has issued guidance that makes clear that discrimination based on an employee’s intention to continue rather than terminate a pregnancy violates Title VII. Related regulations explain that benefits for pregnancy-related conditions must be “the same” as for other conditions. In short, any abortion-travel benefit must have a corresponding benefit for pregnant employees who do not choose abortion.
Abortion travel benefits may constitute not only pregnancy discrimination but also disability discrimination. Under the broad protections of the ADA, an employer that provides healthcare travel benefits to an employee who wants to travel for abortion services may need to provide equivalent benefits to an employee with a disability who wants to travel for healthcare services.
In its ADA regulations, the EEOC has recognized that employer-sponsored wellness programs—which are required to be voluntary on the part of employees in order to be nondiscriminatory—can be coercive rather than voluntary when the employer provides a financial benefit to the employee who participates. Similarly, an employer-sponsored abortion program can be coercive rather than voluntary when the employer provides a significant financial benefit to the employee who participates.
Employers should also consider the impact of their abortion benefit policies on employees whose religious beliefs prohibit abortion. As EEOC religious discrimination guidance explains, “Title VII is violated when an employer … explicitly or implicitly coerces an employee to abandon … a religious practice as a condition of receiving a job benefit or privilege.”
The public would benefit from the EEOC’s providing education and guidance on this pressing issue. Under the law, employers must not tip the scales by subsidizing employees’ abortions while disenfranchising employees who choose both career and childbirth.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.
Sharon Fast Gustafson is a former General Counsel of the Equal Employment Opportunity Commission who represents employers and employees in employment-related legal matters.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.