Protecting Reproductive Rights in the Workplace
In August 2023, the New Jersey Supreme Court ruled against an unmarried teacher fired from her Catholic school job after she became pregnant. In 2021, a company run by radio personality Dave Ramsey admitted to firing nine employees for having sex outside of marriage. In 2018, a bank teller at a Florida Central Federal Credit Union was fired for taking leave to receive an abortion. The National Women’s Law Center has been tracking similar instances of employees across the country who were fired or demoted for receiving abortions, having sex before marriage, and using assisted reproductive technology. Many of the examples occurred at religious schools, where employers frequently use the ministerial exception to skirt anti-discrimination protections. Workers and their families should be able to make reproductive and sexual health decisions without facing negative employment consequences. Yet across the country, Americans can and do face discrimination at their workplaces for seeking care and exercising their reproductive rights.
Reproductive Health and Federal Employment Law
In 1978, the Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964, codifying that employment discrimination based on “pregnancy, childbirth, or related medical conditions” is a form of a sex discrimination. According to current EEOC guidelines and multiple federal court decisions, the phrase “or related medical conditions” encompasses abortion and in-vitro fertilization (IVF). But after Dobbs, reproductive freedom is in jeopardy. Any employee challenging an abortion-related firing, for example, is doing so in an environment where Americans receiving abortions now face criminal prosecution, jail time, restrictions on leaving the state, and the denial of emergency medical care. Attempts at federal legislation in support of reproductive rights have been futile, and federal courts are increasingly hostile to reproductive rights.
When President Trump was in office, he attempted to roll back the sex discrimination protections in Section 1557 of the Affordable Care Act, which protects patients from discrimination in healthcare and uses similar language and enforcement mechanisms to Title VII. Future administrations could make a similar attempt to gut Title VII and refuse to interpret the Pregnancy Discrimination Act provisions to encompass IVF and abortion. Additionally, federal courts have already held that the sex discrimination provision in Section 1557 cannot be read to include abortion discrimination. There is a risk that federal court judges would make the same decision regarding Title VII if faced with a similar challenge. With national reproductive rights protections increasingly fraught, employees may be chilled from exercising their federal reproductive rights protections in the workplace.
Reproductive Health and State Employment Law
State and local protections are an important counterweight to uncertainty at the national level. Even prior to Dobbs, several states (including Hawaii and Delaware) began codifying reproductive health decisions as a protected category in state employment discrimination law. In 2017, St. Louis, Missouri passed an ordinance protecting employees from pregnancy and reproductive health decision discrimination. New York City passed a law in 2019 that includes broad protections for both reproductive and sexual health decisions, such as emergency contraception, gender-affirming care and hormone therapy, and STI prevention and treatment.
In the wake of Dobbs, more states have begun passing similar laws. In 2023, New York state passed SB 4172, which prohibits employers from taking adverse employment action against workers for their reproductive health decisions. The law also forbids employers from “accessing an employee’s personal information regarding the employee’s… reproductive health decision making,” a provision that could prove crucial in light of the large number of employers who have promised to fund their employees’ abortion travel.
California similarly passed the Contraceptive Equity Act of 2022, which protects residents from employment discrimination based on “reproductive health decisionmaking,” including a “decision to use or access a particular drug, device, product, or medical service for reproductive health.” Michigan Governor Gretchen Whitmer also recently signed Senate Bill 147, which bars employers from discriminating against workers who receive abortions (the law previously existed, but only covered instances where the abortion sought was life-saving). These measures won support from civil rights and reproductive rights groups.
Efforts to fight reproductive health employment discrimination are not limited to Democrat-majority states. A bill introduced in Texas, for example, would prohibit discrimination based on a person’s reproductive health decisions, including marital status at the time of pregnancy and the use of assisted reproduction. The bill might appear to have little chance of passing in the Republican-controlled state, but the success of abortion rights advocates in recent Kentucky and Kansas referendums demonstrate that reproductive rights wins elections. Voters are fighting back to defend reproductive freedom.
Reproductive Rights are Workers Rights
When Washington D.C. attempted to pass a reproductive health discrimination protection law back in 2014, the House of Representatives struck it down along party lines. The New York state protections, also known as the “Boss Bill,” are currently being challenged in federal court. Unlike Title VII, the Boss Bill allows for no ministerial exception. Evergreen Association, a “Crisis Pregnancy Center,” challenged the law, arguing it violated their First Amendment rights to free speech, free exercise, and expressive association. The district court dismissed Evergreen’s challenge, but the Second Circuit reversed on the issue of expressive association, holding that Evergreen stated a plausible claim that the law unconstitutionally forces them to associate with employees whose actions are contrary to their anti-abortion views. The case has been remanded for further consideration on this issue. Similar challenges are likely to occur in response to other anti-discrimination legislation of this kind, particularly if the legislation, like the New York law, lacks religious exemptions.
As reproductive healthcare access becomes increasingly expensive, legally fraught, and difficult to obtain, workers need guarantees that their healthcare decisions won’t impact their job security. The benefits of reproductive healthcare access are severely diminished if workers can be fired or demoted for seeking that care. States like Michigan, California, and New York are instructive in their efforts to include reproductive and sexual health decisions as a protected category in employment discrimination law. Though legal and political challenges are certain, workers’ rights advocates should support reproductive health decision protections and fight to ensure Americans don’t have to choose between their reproductive health and their livelihood.