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The Impact of the Dobbs Decision on the Workforce: How Should Employers React?

September 13, 2022

By Kevin Hylton

The landmark U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade on June 24th, reversed decades of established precedent that established a woman’s constitutionally protected right to an abortion in the first two trimesters of pregnancy. Dobbs returned the U.S. to the pre-Roe world in which individual states can decide for themselves on whether to allow or prohibit abortion within their jurisdictions.

NPR reported that more than a dozen states already had so-called “trigger bans” in place that were designed to prohibit abortion as soon as Roe was overturned, some of which took effect immediately. Other state legislatures quickly passed abortion bans of one degree or another. And while some of these new state laws have been blocked or delayed by litigation, at least eight states have implemented total or near-total abortion bans.

This stunning development is quickly turning into a major flashpoint in the worlds of American medicine, politics and culture — but it is also having a significant impact on labor and employment issues for American businesses.

For example, abortion is now classified as a crime in Texas and Oklahoma. Yet in other nearby states, procedures remain legal. For companies working across state lines, these dramatic variances from one jurisdiction to the next have created many difficult employment issues that have in-house counsel seeking clarification over their precise legal obligations.

“I’ve been looking at this issue mainly through the lens of employers who are trying to navigate the Dobbs decision and mitigate the risk of claims of discrimination or other mistreatment of employees,” said Evandro Gigante, partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration Group at Proskauer Rose in New York. “This entails whether — and how — an employer can put into place policies that provide certain benefits to employees looking to obtain an abortion but are unable to do so based on the state in which they work or reside.”

This initial assessment requires in-house counsel to have access to the latest facts on the ground regarding how each state has proceeded to regulate abortion in a post-Roe world. Lexis Practical Guidance has created a helpful tool, State Abortion Laws Tracker After Dobbs v. Jackson Women’s Health Organization, which monitors where different state laws stand on abortion access.

Gigante points out that most of the Dobbs-related legal questions boil down to two fundamental labor and employment considerations for in-house counsel:

  1. Whether providing benefits that cover an abortion procedure could create some sort of discrimination claim against the company; or
  2. Whether an employer’s communication of their stance on this issue could create problems within the workplace that might trigger potential claims of discrimination or harassment.

But beyond these central employment law considerations, another interesting legal question for in-house counsel involves how employers may govern their employees’ public comments and reactions to such a sensitive topic as abortion.

“With social media being as prevalent as it is, it’s really a platform for employers and employees alike to say what they want about social issues, workplace issues and broader issues that affect the world,” Gigante said. “So employers tend to think about creating policies that establish guardrails for what employees can and cannot say over social media. Likewise, general workplace rules around anti-harassment and anti-discrimination are often applied to social media posts and comments.”

Gigante has observed in working with clients that a major challenge they are confronting in the aftermath of the Dobbs decision is determining when and whether to interfere if an employee’s online statements — either for or against the decision — run the risk of making other employees feel mistreated in the workplace.

“When these workplace discussions start to touch on highly sensitive and personal areas that involve protected categories, such as religious beliefs, employers have to think carefully about how to approach an employee,” he explained. “The key is to not to create even the appearance of taking issue with someone because of their religion — as opposed to some remarks they made that were offensive, inappropriate or otherwise not aligned with the company’s workplace policies governing speech. You want to make sure that any warnings or disciplinary actions for inappropriate abortion-related comments are being taken for reasons that are entirely unrelated to the employee’s protections under employment law.”

He also noted that certain states have laws protecting employees’ rights to participate in outside activities, which may include posting on social media or participating in political demonstrations, so it is important for employers operating in multiple jurisdictions to be aware of all the laws that apply to their various workplaces.

To learn more about the Dobbs decision and its impact on labor and employment issues, please review the Dobbs v. Jackson Women’s Health Organization Resource Kit from Lexis Practical Guidance.

I had the privilege of interviewing Gigante on a recent episode of our new “Practical Guidance: Labor and Employment Series” podcast, where we invite experts to provide insights on timely employment law issues facing legal practitioners. Listen now or download the episode regarding the impact of the Dobbs decision on the U.S. workforce and some of the related employment law issues confronting businesses.