Employers Seek Clarity On Reproductive Healthcare Benefits Litigation Following EEOC Commissioner Filing – Discrimination, Disability & Sexual Harassment

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After the US Supreme Court decision i Dobbs v. Jackson Women’s Health Organization, many employers extended travel benefits to women who live in states where abortion or reproductive health procedures may now be illegal. Recently, the US Equal Employment Opportunity Commissioner (EEOC) Andrea Lucas filed a Commissioner’s Charge against at least three companies alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act of 1990 (ADA). ). Although these charges are not public, they are believed to reflect a letter recently sent by former EEOC General Counsel Sharon Fast Gustafson. en masse of employers across the country also alleging that such travel programs violate federal anti-discrimination laws. The EEOC has since issued a statement that Gustafson’s views are her own and do not necessarily reflect those of the EEOC.

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When Title VII was amended in 1978 with amendments to the Pregnancy Act, language was added requiring treatment of pregnancy, childbirth and related medical conditions. fairly with other medical addresses under employer “fringe benefit programs”. Lucas asserts that travel benefits for those seeking an abortion give preferential treatment to women, making it gender discrimination. She also contends that travel benefits also discriminate religiously by favoring those who terminate pregnancies over those who carry a child to term for religious reasons. Her final contention is that the provision of travel benefits violates the ADA, which she claims requires equality of benefits for those with physical disabilities.

Employers are now asking whether Lucas and Gustafson’s position could be the start of litigation from the EEOC or private plaintiffs and whether they can take steps to address the legal arguments being raised.

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First, it is doubtful that the EEOC will sue. Although Title VII and the ADA authorize an individual commissioner to file a Commissioner’s Charge, that Charge will be investigated like any other charge of Discrimination. If cause is found, EEOC procedure in cases that attract public attention (which it certainly does) requires that litigation may be initiated only if a majority of the Commissioners (minus the Commissioner who brought the Charge) vote in favor of doing so. In the absence of a quorum, only the EEOC General Counsel may initiate suit. At this time, Lucas does not seem to have such votes.

Second, employers can and should draft these claims in preparation for private suits. Specifically, such travel benefits should cover not only abortion and/or reproductive health, but also all covered services or procedures not available within a covered person’s state or area of ​​residence, regardless of the individual’s gender , on pregnancy or birth status, or on their disability status. . This would make the benefits “available” to everyone.

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Finally, there is a suggestion that even with such drafting, this travel benefit will still be used primarily by non-Christian women, which will support a disparate impact claim based on religious discrimination. This is outreach. Title VII claims require an adverse employment action such as an employee who requests a travel benefit but is denied it because of his religion; here, that would be a zero row.

The content of this article is intended to provide a general guide to the subject. Specialist advice should be sought about your specific circumstances.

COMMON ARTICLES ON: Employment and Human Resources from the United States of America


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