Is it legal to fire someone for getting an abortion?

Yesterday, we covered whether the Family and Medical Leave Act allows women who have an abortion to obtain leave for a serious health condition.

Today, we’ll talk about the Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964 to prohibit employers from taking adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

The PDA does not “preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.” However, the statute is silent about whether an employer violates the PDA if it fires a woman for getting an abortion.

Until last week, the answer was yes.

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.”

Yes, the official position of the U.S. Equal Employment Opportunity Commission is that an employer cannot discriminate in its employment practices against a woman who has had or is contemplating having an abortion.

Congress also 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.”

Other courts have reached the same conclusion. The Sixth Circuit agreed that firing a pregnant employee because she contemplated having an abortion violated the PDA. Other district courts (like this one and this one) concur. A federal judge in Illinois analyzed it as an Euler diagram:

If the coverage of the PDA is thought of in concentric circles, discrimination based on the fact of being pregnant might be thought of as the core wrong that the PDA was meant to address, or the inner-most concentric circle. The next concentric circle might contain the abortion decision. The court can find no reason why the same circle that contains termination of a pregnancy would not also include the initiation of a pregnancy.

But how about post-Dobbs?

To answer whether it’s legal to fire someone for getting an abortion, the answer may depend on geography.

For example, abortion is still legal in New Jersey. Suppose a woman who works in New Jersey gets an abortion in New Jersey. In that case, her employer violates federal (and state) anti-discrimination law if it fires her for getting an abortion.

The outcome would be the same with an employer in a state like Texas, where most abortions are illegal, and an employee working remotely in a state like New Jersey, where abortion is legal. The employer could still violate the PDA by firing the employee because she obtained an abortion legally.

But how might the Supreme Court’s ruling in Dobbs impact the decision to terminate an employee because she obtained an abortion illegally? Many states have very relaxed rules (or none at all) governing employer use of employee criminal records — even arrests — to make employment decisions. Theoretically, an employer who fires someone who obtained an abortion illegally could argue that:

• The illegal action motivated the adverse employment action, and
• it would make the same decision for any employee charged with any felony; therefore,
• the company would not base its employment decision specifically on the gender or pregnancy status of the woman.

However, the employee could counter that her sex/pregnancy undoubtedly was one of the motivating factors in the decision to terminate her employment. Put another way, the company would only fire women for getting abortions because men can’t have them, and treating pregnant women adversely based on their gender/pregnancy violates Title VII and the PDA.

Since the ink on the Dobbs decision is still wet, this scenario has yet to play itself out.

Who wins? The lawyers, I assume. It depends.