After the Supreme Court’s decision in Dobbs overturned Roe v. Wade and allowed the States to restrict abortions, some employers have trumpeted that they will pay an employee’s travel expenses (companion expenses included) if she must travel more than so many miles to terminate a pregnancy. The amount of money being offered by some of these employers is enough for the employee to be reimbursed for aborting a fetus on a week-long European tour. One sporting-goods company has announced that it will reimburse employees up to $4,000 for abortion-related travel expenses. As someone who has been practicing employment law for the past 30-some years, I heard in these employers’ offers an unwitting announcement that they intended to violate the Pregnancy Discrimination Act and possibly the Americans with Disabilities Act and the Mental Health Parity Act as well.
So last month, I sent multiple employers a letter warning them that such actions may violate the law and may result in charges of discrimination. I’ve been warning employers for my entire legal career: Don’t force that employee to stay home because she’s pregnant. Don’t refuse to hire that employee because of her hijab. Don’t deny that dying employee the benefits she’s paid into for years. Rehire that technician you fired because of his race, that doctor you forced out on account of his age, that correctional officer you let go for rejecting sexual advances, that bus driver you axed because of his limp, that nurse you terminated for her religious views. Such warning letters sometimes work.
My October letter warned employers that funding abortion travel benefits may violate non-discrimination laws. An employer that provides a benefit to an employee who wishes to terminate a pregnancy--but does not provide the same benefit to an employee who wishes to maintain a pregnancy or care for the health of her unborn child--violates Title VII of the Civil Rights Act of 1964. The EEOC’s Obama-era Pregnancy Discrimination Guidance clarifies that Title VII does not require coverage for abortion. But “an employer [that] decides to cover the costs of abortion ... must do so in the same manner and to the same degree as it covers other medical conditions.” An employer is not permitted to reward with cash benefits the formerly pregnant employee who returns from her medical travel having terminated her pregnancy while not rewarding at all the pregnant employee who returns from her medical travel still pregnant.
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I am not alone in warning these employers of the risks of their plans. Lawyers with expertise different from mine are also warning these employers that they face other legal risks as well: They may become liable not only for employment discrimination but also for violations of a slew of other laws, including ERISA (abortion travel may be a separate welfare benefit plan), the Affordable Care Act including the Mental Health Parity Act (do you give equivalent benefits for mental health needs?), HIPAA (privacy concerns), COBRA (continuation requirements), and the Internal Revenue Code (which I hear limits medical travel reimbursement to only $50/day for lodging and 27 cents/mile before that reimbursement begins to incur income tax liability for the recipient and employment tax liability for the employer), and even criminal laws (aiding and abetting violations of State law restrictions).
I heard these warnings not at a pro-life rally but at a presentation on post-Dobbs issues for employers given by lawyers who were intent on protecting employee access to abortion. According to the pro-choice presenters, there is much risk related to abortion travel benefits. They say the legal landscape is “a minefield.”
Responses to my warning letter have not been friendly. Some have chastised me for making “threats,” but in warning employers about the legal risks of funding abortion travel, my letter is no different from the pro-choice presentation I heard. Employers need to be told about the legal risks they face.
One caller demanded that I tell her my motivation for sending such a letter, but when I asked her name, she hung up on me and didn’t hear my answer. So, here it is:
I sent the letter because I want employers to obey the law. I want them not to subsidize abortion and certainly not to do so to a greater extent than they subsidize the maintenance of pregnancies, medical care for children in the womb, or the treatment of those with disabilities.
I want employers to refrain from subsidizing abortion because it may violate the law and because abortion hurts women. It is the rare pregnant woman who has an uncomplicated desire to end her child's life. Motherhood is one of the great privileges and joys of being a woman, though it is a privilege with great costs. Most women in a healthy environment want a relationship with their offspring. If we saw dogs or cats trying to abort their offspring rather than giving birth, we would examine their environment to determine what was causing this aberration. I suggest we examine the environment of 21st-Century women for an answer to the same question. More importantly, we must ask why employers still believe their employees must terminate pregnancies to advance in their workplaces.
Many women have abortions because they feel they have no choice. I know this because they’ve told me. But until recently, I did not imagine seeing the day when the coercion would come not only from their boyfriends but their employers – especially not made explicit in corporate HR policies.
Some Fortune 500 companies provide abortion travel benefits as if these female employees’ careers depend on it. A woman who aspires to be a mother and have a family life should hesitate to take a job with an employer who presumes that a woman would surely be willing to have an abortion to advance her career.
My answer to the caller’s question about my my motivation goes further, well beyond my letter, beyond employment law, and even beyond pregnant women’s aspirations. I want to discourage abortion because I want to encourage life. I want human beings who have been conceived but not yet born to take their first breath, to enjoy the turning of the autumn leaves, the winter freeze, the thaw, and the summer heat. I want them to have the opportunity to feel even the sadness sparked by a life full of wonder drawing to a close. I want them to hope for life everlasting. I’ve known people whose lives look exquisitely happy and those whose quality of life seems bleak. Almost all of them - even those in adversity - want to live. We must not presume to choose death instead for the unborn.
Finally, my motivation includes a sober truth that yields another warning: We will all stand before our Maker and account for what we have done for the least of these, our fellow humans.
Sharon Fast Gustafson is a former General Counsel of the Equal Employment Opportunity Commission who represents employers and employees in employment-related legal matters.
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