Employers must not treat pregnant employees differently from those with the same abilities and limitations.
Pregnancy Discrimination Act and Abortion
- The Basic Federal Law
- Do These Laws Protect Women Who Have Had Abortions?
- How Can an Employee Demonstrate That Discrimination Occurred?
- Overturning of Roe v. Wade
- Can Employers Discriminate Against Workers Who Get Abortions?
- Is it Possible for a Group Health Insurance Plan to Exclude Coverage for Abortions?
- Do Employers Have to Keep an Employee’s Abortion Information Private?
- Is it Legal for Employers to Pay for Employees to Travel to Another State for Abortions?
- Can Employees Discuss Reproductive Rights at Work?
- Do I Need a Lawyer for My Pregnancy Discrimination Case?
The Basic Federal Law
Pregnancy discrimination is prohibited by the Pregnancy Discrimination Act (PDA). All employers with at least 15 or more employees are subject to the Act. Pregnant women or women suffering from pregnancy-related conditions should be treated the same way as any other employee. If a pregnant employee cannot perform her duties due to pregnancy, her disability should be treated on the same basis as any other disability.
Employers with 15 or more employees are prohibited from discriminating against employees based on their gender under Title VII of the Civil Rights Act. The Civil Rights Act prohibits employers from discriminating against employees solely based on their gender. Employers are also prohibited from engaging in any forms of sexual discrimination.
Pregnant and non-pregnant women should be treated equally, both in terms of benefits received and in all other respects. The PDA prohibits discrimination against pregnant women in several areas of employment, including hiring, firing, seniority rights, job security, and fringe benefits.
The PDA specifically states that pregnant employees should be provided with the same benefits as other employees. Even though employers are not required to provide health insurance benefits for abortion, there are certain situations in which the employer may be required to pay. There are two types: either a) cases where the abortion was necessary and conducted to save the mother because carrying the child to term would be harmful to the mother; or b) cases where the abortion resulted in any medical complications.
However, employers may be required to pay abortion benefits to employees if they and the employee have previously agreed on that.
According to the PDA, no pregnant woman should be subjected to discriminatory practices because she is pregnant or may become pregnant. Pregnancy discrimination can occur long before a woman becomes pregnant. During the hiring process, employers may show prejudice towards applicants who may require parental leave in the future. The PDA forbids such discriminatory practices and says that no employee should be treated differently because she is pregnant or may become pregnant.
Do These Laws Protect Women Who Have Had Abortions?
Courts traditionally have focused on pregnant employees, not those who have abortions.
Some U.S. courts have recently ruled that this law applies to women who have had abortions. An employer cannot fire or refuse to hire an employee simply because she had an abortion in these states. These courts consider abortion a “related medical condition” and cover it.
How Can an Employee Demonstrate That Discrimination Occurred?
As in all cases involving employment discrimination, the employee will have to demonstrate that the employer was motivated by the fact that she had an abortion, and not another, legitimate factor, such as job performance. In this case, the employer has a chance to show that they had a legitimate business reason to fire the employee.
Overturning of Roe v. Wade
Roe v. Wade being overturned by the Supreme Court may bring about several compliance-related questions at work. As an employer, you should understand what issues may arise and what legal developments should be monitored.
Can Employers Discriminate Against Workers Who Get Abortions?
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA), protects women against discrimination and harassment in the workplace based on pregnancy, childbirth, or related medical conditions, including abortion.
The Equal Employment Opportunity Commission states that an employee who has an abortion, does not have an abortion, or is contemplating an abortion is protected. It would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, to keep their job, get better assignments, or progress in their career.
Is it Possible for a Group Health Insurance Plan to Exclude Coverage for Abortions?
Title VII does not require employers that provide health insurance to cover abortions except in cases where the fetus would endanger the mother’s life if it were carried to term or if medical complications occur after an abortion. Likewise, the statute clarifies that, although not required, an employer is allowed to offer health insurance coverage for abortions.
There is no requirement that abortions be covered as an essential health benefit under the Affordable Care Act.
Each state’s insurance laws will differ regarding what coverage may or may not be offered in fully insured group plans and public employer plans. State laws may prevent these plans from covering certain abortions.
A self-insured plan is governed primarily by the Employee Retirement Income Security Act, not state regulations, so state law does not typically restrict coverage. Although some abortions might not be available in a particular state, a self-insured plan could cover them in other states.
Do Employers Have to Keep an Employee’s Abortion Information Private?
Employers should keep this information confidential, even if it is not technically required by law. If used against an employee, sharing this information could expose an employer to a discrimination or harassment claim under Title VII or state discrimination laws. Sharing this information could also violate state privacy laws.
Americans with Disabilities Act (ADA)
According to the ADA, employers must treat medical information obtained from a medical inquiry or examination (including information from voluntary health or wellness programs) as confidential medical records. Even though it is unusual, if an employer learns about an employee’s abortion through such an inquiry, it would be considered a confidential record under the ADA.
Health Insurance Portability and Accountability Act (HIPAA)
HIPAA requires employers to maintain the confidentiality of employee medical information derived directly from group health plans. Summary claims reports from the insurance carrier or plan administrator provide this information. It would be rare for an employer to discover directly from a group health insurance plan that an employee had an abortion since these reports do not generally identify individuals with claims activity. That information would be protected under HIPAA.
Information that an employee tells their employer about a health issue or treatment they have received is not covered by HIPAA.
Is it Legal for Employers to Pay for Employees to Travel to Another State for Abortions?
Employers can usually provide this benefit through some vehicle, but there are several things to consider regarding how this benefit will be offered. Compliance or taxation issues must be considered regardless of whether it’s a group health plan, a flexible medical plan, or something else.
Can Employees Discuss Reproductive Rights at Work?
In some limited circumstances, they might.
Many employees believe they have a right to free speech at work, but that’s simply not true. Free speech rights in the First Amendment pertain to the government’s inability to prohibit speech, not private employers. A public employer can discipline employees’ speech to ensure the efficient operation of their offices.
However, employers cannot limit all employee speech. The National Labor Relations Act (NLRA) requires both union and non-union employers to allow “protected concerted activity,” which can include discussing topics about the “terms and conditions” of employment, such as group insurance coverage for abortions or related travel expenses.
State off-duty conduct laws and the NLRA might also protect employees who post comments on social media about reproductive rights that might incite employee discussion. Employers should always consult with their attorney before taking negative employment action against an employee based on their views.
Nevertheless, prohibiting unprotected speech related to reproductive rights is unlikely to stop these conversations and is generally not recommended. Because of this, many employers will remind employees of policies requiring respectful interactions among workers, and some may choose to address the issue more directly.
It is possible to achieve greater workplace inclusion if managers are equipped with the skills to facilitate “productive conflict.”
Do I Need a Lawyer for My Pregnancy Discrimination Case?
If you’ve been discriminated against at work for having an abortion, contact a discrimination lawyer to discuss your case. Use LegalMatch to find the right discrimination lawyer for your needs today.
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