Employers Should Keep Title VII in Mind When Navigating Supreme Court’s Dobbs Decision

Labor & Employment Workforce Watch
October 2022

The Supreme Court’s decision in Dobbs vs. Jackson Women’s Health Organization created various employment law issues for employers. We previously addressed some of these issues in a July 2022 publication.

Following Dobbs, many states, such as Texas, enacted laws banning abortions in most situations, while other states severely limited abortions. Employers should be aware that, despite the various state law abortion restrictions, federal law prohibits employers from taking an adverse action against a pregnant employee who has an abortion, contemplates an abortion, or refuses to have an abortion.

Specifically, the Pregnancy Discrimination Act (the “PDA”) amended Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit employment discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” The U.S. Equal Employment Opportunity Commission (“EEOC”) takes the position that these protections also prohibit discrimination based on abortion:

Title VII protects women from being fired for having an abortion or contemplating having an abortion . . . Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion. For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.

Federal courts have likewise held that Title VII, as amended by the PDA, prohibits an employer from discriminating against an employee who had an abortion. See Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3rd Cir. 2008); Turic v. Holland Hospitality, Inc. 85 F.3d 1211, 1214 (6th Cir. 1996). For example, in Ducharme v. Crescent City Deja Vu, LLC, 406 F. Supp. 3d 548, 552 (E.D. La. 2019), the plaintiff requested two days off from work to have an abortion. While she was off from work to obtain the procedure, a coworker informed the manager that Ms. Ducharme—a bartender—had been drinking on the job. Id. After reviewing security tapes, the employer terminated Ms. Ducharme’s employment for violating company policy and improperly drinking alcohol while working. Id. However, Ms. Ducharme brought suit, alleging the employer discriminated against her for having an abortion in violation of Title VII. Id. at 554–55. While acknowledging that the Fifth Circuit had not ruled on this issue, the district court held that Title VII prohibits employers from taking an adverse action against an employee for having an abortion. Id. at 556.

Accordingly, employers should be aware that they may be liable under Title VII if they take adverse employment action against an employee for having an abortion, contemplating having an abortion, or choosing not to have an abortion—regardless of any state law restrictions on abortions.