EEOC Commissioner Andrea Lucas has initiated charges against several employers for providing employees with abortion travel benefits in the latest legal fallout from the Supreme Court’s overturning of Roe v. Wade.
Discrimination against pregnant workers: The charges filed by Commissioner Lucas allege that by offering employees reimbursement and other benefits for procuring an abortion out of state, employers are discriminating against pregnant and disabled workers because they are not offering equivalent benefits for their medical needs. Commissioner charges, which can be initiated by a sole member of the Commission, are rarely used.
Not without warning: Former EEOC General Counsel Sharon Gustafson had previously warned companies that the EEOC could take action against abortion benefits, submitting letters outlining her concerns to several companies a few weeks ago. Littler Mendelson P.C., a member of HR Policy’s Legal Advisory Committee, responded on behalf of client companies who received the letters arguing that such benefits are legal under federal law, and calling for the EEOC to investigate the former general counsel for deliberately misleading and intimidating employers providing lawful benefits.
The charges add a new wrinkle to the legal questions raised by providing travel benefits for abortion. While states such as Texas have threatened legal action against employers for providing such benefits under state anti-abortion laws, legal challenges to these benefits on the basis of discrimination have yet to be raised in federal court. Most employers provide abortion travel benefits through general health care travel policies that cover other medical necessities as well, and the Pregnancy Discrimination Act of 1978 specifically allows for employers to provide abortion benefits; proving such benefits are discriminatory, therefore, could be a difficult hill to climb.
Meanwhile, Republican Commissioner Janet Dhillon announced her retirement from the EEOC. Commissioner Dhillon was already serving past her expired term as allowed by law, and thus her retirement does not significantly alter the composition of the Commission – her seat will likely remain vacant until the next administration. Democratic control of the Commission still squarely depends on Senate Democrats’ ability to push a nominee through the Senate – a task that may become easier if Sen. Rafael Warnock (D-GA) prevails in the runoff election for the Georgia Senate seat.
Outlook: Whether or not Commissioner Lucas’s charges have legal merit, they once again place employers in the public spotlight over abortion benefit coverage and remind us that the legal thicket created by the overturning of Roe v. Wade will take years to untangle.