Attorney Blog, Human Resources

Is Abortion Covered Under the Pregnancy Discrimination Act?

Attorney Harrison Oldham

With the recent news out of Alabama of the “Alabama Human Life Protection Act,” it is timely to look at how abortions may relate to the workplace.

You may have heard about the Pregnancy Discrimination Act (“PDA”) before, but did you know that it extends to much more than “pregnancy”? In fact, the PDA prohibits adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

Because of this language, the PDA has broadly been construed to protect various aspects of pregnancy and pregnancy-related medical conditions. But the question here today is, does the PDA’s coverage extend to employees who have abortions?

Recently, the US federal court in the Eastern District of Louisiana faced exactly that question.

Back in 2017, a Louisiana woman claimed that she told her employer that she had become pregnant and that she was planning on having an abortion. The woman then requested time off work to have the procedure performed.  The woman’s employer granted the time off, but then terminated the employee while she was away to have the procedure.  The woman filed suit against the employer, alleging that the company violated the PDA by firing her.

The answer to the question of whether abortions are protected under the PDA is not clear by looking at the language of the PDA alone. Although, the PDA does not preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion, there’s nothing explicit in the PDA about discrimination based on having an abortion.

In addition, prior to this case, no court in the Fifth Circuit had directly addressed this issue.  As a result, the court first had to look for additional guidance. In making its determination, the court noted that other federal appellate courts had found that abortions are protected under the PDA. For instance, if this case was pending in the Third Circuit (PA, NJ, DE, USVI) or the Sixth Circuit (KY, MI, OH, TN) the employee would have a valid claim under the PDA. In addition, 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.  Finally, it’s relevant to note that the legislative history of the PDA supports the same conclusion. Congress talked about how the PDA’s “basic language covers decisions by women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.”

On the other hand, the woman’s employer argued that the employee’s pregnancy discrimination claims should be dismissed because Title VII does not recognize abortion as a protected characteristic. Specifically, the employer argued that “abortion is not pregnancy, childbirth, or a medical condition related to pregnancy and that Congress could have included abortion as a protected characteristic but did not do so.”

So, what did the court do? It sided with the courts that had previously addressed this issue:

The court finds that abortion is encompassed within the statutory text prohibiting adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.” While an abortion is not a medical condition related to pregnancy in the same way as gestational diabetes and lactation, it is a medical procedure that may be used to treat a pregnancy-related medical condition….If a person has to have an abortion because she is suffering from anemia as a result of a pregnancy, she, too, is protected from termination. Moreover, an 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.” A woman terminated from employment because she had an abortion was terminated because she was affected by pregnancy.

Accordingly, the court held that Title VII as amended by the PDA extends to abortions.

What does this mean for employers? Simply that it’s important to remember that the PDA extends to much more than just “pregnancy,” and instead prohibits adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas.

You can learn more about him by visiting his website, at: http://lonestarbusinesslaw.com/.

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