Thursday, November 17, 2022
Republican EEOC Commissioner Andrea Lucas is deploying a rarely used agency procedure to silently initiate targeted discrimination probes against at least three companies providing their employees with abortion travel benefits, five attorneys who have seen the charges told Bloomberg Law.
The “commissioner charges” allege that the employers are favoring workers seeking abortions while discriminating against pregnant workers and disabled workers because they are not offering equivalent benefits for their medical needs, according to the attorneys.***
Lucas’s arguments mirror those made by the agency’s former general counsel, Sharon Fast Gustafson, in a letter sent to employers with such policies last month. The discrimination-based arguments espoused in the charges and the letter are unusual, though abortion travel policies have been criticized on other legal grounds.***
It would be extremely unusual for an employer to have a plan that covers travel for abortion but not for other medical necessities, according to Sharona Hoffman, a professor at the Case Western Reserve University School of Law.
The argument that providing abortion travel benefits is discriminatory to workers who chose to keep their pregnancies or to disabled workers is “creative and novel,” Hoffman said.
Two reasons stick out as to why these Commissioner charges are doomed to fail, the first practical and the second legal:
1.) Are there any women who actually need to travel out of state for childbirth? If there was ever a problem searching for a solution, this is it.
2.) Title VII actually makes it clear on its face that an employer is free to provide abortion benefits to employees.
Title VII's definition of "pregnancy" expressly provides that while the law does "not require an employer to pay for health insurance benefits for abortion," it also does not "preclude an employer from providing abortion benefits." That looks pretty dispositive to me.