Firing For Abortion is Discrimination

Since abortion laws are such a hot topic right now, employers should be warned: firing a woman for obtaining an abortion is discrimination.

The Pregnancy Discrimination Act (“PDA”), which amended the federal discrimination law, Title VII, prohibits employers from taking adverse action against an employee “because of or on the basis of pregnancy, childbirth or related medical conditions”. The EEOC and the courts who have examined this question agree that this definition includes protection for women who chose abortion.

The Equal Employment Opportunity Commission guidance on the PDA states as follows:

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.

While our Fifth Circuit Court of Appeals has not ruled on this question, the most recent court to examine this issue is a federal district court in Louisiana, which answers to the Fifth Circuit. In Ducharme v. Crescent City Deja Vu, LLC (E.D. La. May 13, 2019)(emphasis added), last week the judge plainly stated:

[A]n abortion is only something that can be undergone during a pregnancy. Title VII requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” 42 U.S.C.A. § 2000e(k). A woman terminated from employment because she had an abortion was terminated because she was affected by pregnancy.

The judge in Ducharme found support for this decision in two earlier appellate cases. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3rd Cir.), order clarified on other grounds, 543 F.3d 178 (3rd Cir. 2008) (“Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion. We now hold that the term ‘related medical conditions’ includes an abortion.”); Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (“Thus, the plain language of the statute, the legislative history and the EEOC guidelines clearly indicate that an employer may not discriminate against a woman employee because ‘she has exercised her right to have an abortion.’).

There is another important lesson in this case besides understanding that abortion cannot play any role in an employment decision. The lesson for business owners, managers and supervisors is to think before you speak and keep your strong opinions about sensitive topics like abortion out of the workplace.

Even though the judge’s opinion acknowledged that a woman choosing abortion is protected under Title VII, the ex-employee in Ducharme did not prevail on her claim against her employer in part because she failed to demonstrate that her employer actually fired her for the abortion instead of the on-the-job drinking. A significant part of the court’s reasoning was based on the fact that the employer who did the firing, Ms. Salzer, did not actually demonstrate an anti-abortion bias:

Perhaps most fatal to plaintiff’s pregnancy discrimination claim, however, is the complete absence of any support for any alleged anti-abortion animus by Ms. Salzer. Here, it is uncontroverted that Ms. Salzer had never said anything about abortion or religion to Ms. Ducharme at any time during their 18-month relationship. Ms. Ducharme does not dispute that when she informed Ms. Salzer that she was planning on undergoing an abortion, Ms. Salzer did not attempt to talk her out of it and did not say that she disapproved of the decision. There is no evidence that prior to that, Ms. Salzer had ever said anything to suggest to Ms. Ducharme that she would disapprove of the abortion. Ms. Salzer had never said anything political about abortion. Ms. Ducharme did not think of Ms. Salzer as religious.

So the employer did not:

  • Say anything about abortion or religion to Ms. Ducharme at any time during the 18 months Ms. Ducharme worked there;
  • Try to talk Ms. Ducharme out of her decision to have an abortion;
  • Express disapproval about Ms. Ducharme’s decision;
  • Generally talk about her religious or political views in the workplace.

Consider how differently this case could have gone if the employer was a known abortion opponent who lectured his/her employees on the evils of abortion, strongly objected when an employee asked for time off for an abortion and then fired that employee soon thereafter. That employer’s words and actions on this sensitive medical, religious and political issue would definitely come back to bite the employer in a discrimination case.

Or consider the flipside. What if the employer were very strongly in favor of abortion rights and did not want a top-performing female employee to lose any work time to pregnancy and a maternity leave? That employer’s statements encouraging the employee to end the pregnancy “for the good of the business” and to increase the employee’s chances of advancement could also be strong evidence in a pregnancy discrimination case.

The lesson is that your workplace is not the right place for a boss to pontificate on religious and political hot topics. As an employer, you can be you without hostility or stridency towards who your employees are or what they believe. Successful leaders create more welcoming, tolerant workplaces and give fewer lectures.

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