Abortion travel benefits, which are now being offered by many American employers, are illegal under Title VII of the Civil Rights Act of 1964 and, most likely, under the Americans with Disabilities Act as well.
When the Supreme Court issued its decision overturning Roe v. Wade and allowing states to enact abortion restrictions, businesses across the country announced a new benefit for employees in states where abortion is restricted. For example, Dick’s Sporting Goods CEO Lauren Hobart recently announced that her company will pay up to $4,000 in travel expenses for employees, spouses, and dependents enrolled in the company’s medical plan who wish to obtain out-of-state abortions. Some employers provide abortion travel reimbursement to employees who travel more than a certain number of miles to obtain abortion services.
These benefits, however, are discriminatory — whether the employers realize it or not.
Employers are prohibited by Title VII from discriminating in “compensation, terms, conditions, or privileges of employment based on such individual’s race, color, religion, sex, or national origin.” Congress amended the law in 1978 to expressly prohibit pregnancy discrimination, requiring that all employees, regardless of pregnancy status, “be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs.”
It is pregnancy discrimination to provide financial benefits to employees who wish to travel to terminate pregnancies while providing no equivalent benefits to employees who wish to travel to receive medical care to maintain pregnancies or to receive medical care for children in the womb. The formerly pregnant employee who returns from her abortion is compensated financially. The pregnant employee who returns still pregnant is not rewarded in the same way.
Employers also have perverse profit incentives to provide better benefits to employees who choose to abort children than to employees who choose to have and raise children. Those who choose abortion are more likely to need less pregnancy-related leave and less family and medical leave to care for sick children or attend parent-teacher conferences. Employees who choose abortion place a lower burden on an employer’s health-care costs than those who continue a pregnancy and raise a child.
However, as the Supreme Court stated in the Newport News Shipbuilding v. EEOC case in 1983, “discrimination based on a woman’s pregnancy is, on the surface, sex discrimination.” Furthermore, as the Supreme Court stated in Young v. UPS in 2015, employers cannot normally provide a benefit to some workers that they do not provide to pregnant workers simply because it is more expensive or inconvenient to provide the benefit to the pregnant woman than to the nonpregnant woman.
Title VII prohibits discrimination against an employee “based on her decision not to have an abortion,” according to Equal Employment Opportunity Commission guidance. It also emphasizes that pregnancy and childbirth-related medical needs must be treated the same as other medical needs, and that pregnancy and childbirth-related benefits must be equal to other benefits.
Furthermore, limiting fringe benefits to pregnant employees who will terminate their pregnancies may contribute to a religiously hostile environment toward pregnant employees whose religious beliefs prohibit abortion.
Employers must consider not only Title VII’s prohibitions on pregnancy and religion discrimination, but also the Americans with Disabilities Act’s prohibition on disability discrimination. The ADA prohibits employers from discriminating against employees with disabilities “in regard to [the] privileges of employment,” including employment benefits. According to the ADA, employers who provide abortion travel benefits must also provide equivalent benefits to people with disabilities who travel to receive desired healthcare services.
Employers should consider proposed employment benefits in light of anti-discrimination laws. Furthermore, board members and shareholders should evaluate their fiduciary responsibilities in light of such policies.