A Louisiana woman claimed that, back in September 2017, she told her employer that she had become pregnant and that she was planning on having an abortion. The woman then alleged that, during her time off from work, the company violated the Pregnancy Discrimination Act (PDA) by firing her.
Let’s assume that the company did fire her for getting an abortion. Does that violate the PDA?
Not under the letter of law.
The PDA, which amended Title VII of the Civil Rights Act of 1964, prohibits employers from taking adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.”
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.
But, the PDA gets broadly construed.
If this case was pending in the Third Circuit Court of Appeals (PA, NJ, DE, USVI), she would have a valid claim under the PDA. Back in 2008, the Third Circuit concluded (here) that “the plain language of the statute, together with the legislative history and 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.”
Ditto in the Sixth Circuit in this case.
And the legislative history of the PDA supports this conclusion too. 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.”
So, what would the Louisiana court do?
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.
The takeaway for employers.
You’ve probably heard of the PDA before? But, don’t be fooled into thinking that the P in PDA means that the PDA only covers pregnancy. The PDA prohibits adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.”
And we haven’t even scratched the surface in the post on the obligation to accommodate under the PDA. Or under state/local law.
Let’s save that for another day.