Dallas Employment Lawyer Blog
The dissolution of abortion rights that should be guaranteed as substantive due process rights have a direct impact not only on healthcare, but on employment. I know that’s odd to say, but it’s a person’s personal health decision that should not be interfered with, even by their employment. However, with the Supreme Court’s decision a flurry of companies began to step in to protect abortion rights in a private sector way. This is untenable as a solution. While helpful in the short-term, it creates a complex picture for employment discrimination.
As a hypothetical, let me set up Grayson. They are currently pregnant and would like to access abortion in a different state. Their employer is Be Free Sporting Goods who has promised that they will give time off and leave to allow Grayson the opportunity to pursue abortion access outside the restrictive laws of states like Texas. Despite this being a personal healthcare choice between them and their doctor, Grayson now has to disclose their decision to access abortion to their human resources department. Be Free is a big corporation – their decision is not communicated to one person, not even two people, but several people must work on the request before it is approved. Grayson’s request is then denied because Marla in the human resources department has a sincerely held religious belief that abortion is wrong. And this juncture is where the private sector’s “solutions” to abortion access fall short.
On one hand, Grayson should have the absolute right to make private healthcare decisions about their own body without interference. Yet, an employer’s approval process just puts more strain on their decision, one that did not exist pre-Dobbs – before the Supreme Court made a judicial decision that appeared more political. The denial of Grayson’s leave requests invokes employment law in a myriad of ways. The right to abortion only affects individuals with the ability to become pregnant, but is it pregnancy discrimination if the intention is to access abortion thus ceasing the pregnancy? Is it sex discrimination because a transman, who has the capacity to become pregnant “shouldn’t be pregnant” and so the human resources department discriminates based on sex because of this man’s decision to become pregnant?
At the same time, Marla has a sincerely held religious belief. This belief is recognized as a basis for discrimination. If Marla is fired because she denied Grayson’s request to have abortion access, then Marla’s religious beliefs are the reason for her termination, and this violates the law. Marla has the option of receiving a religious accommodation, but then Marla has to disclose her beliefs to other members of her department and Grayson’s private healthcare decision is then reviewed by yet another person.
The tangles become tighter and more convoluted as Title VII demands peoples’ rights are accommodated or recognized, but at the same time it also leaves behind questions when the rights of one person are in conflict with the rights of another. Title VII is supposed to grant a workplace free from religious, sex, and pregnancy discrimination, but private businesses being forced to step into the ring to protect what should be private healthcare decisions of their employees may find that Title VII’s promises become strained. These situations are why we need to keep fighting for Federal protection for abortion access. These situations are why the private sector is not a long-term solution for abortion access for millions of individuals in the country that may need to make personal decisions regarding their bodies. These situations are why the law must step-in to nullify this legal decision that will further obscure, confuse, and render Title VII weak in the face of this unforeseen judicial activism by the current court. That’s why we need the right to choose. If you are an employee wanting to understand your rights under difficult circumstances, or find that your rights are in fact being violated, our attorneys are available for consultation.