Issue Spotting for Employers in a Post-Roe Era

Alerts / June 29, 2022

Unless you have had all media of every kind shut off the past few days, you have seen that on June 24 the U.S. Supreme Court held in a 5-1-3 opinion that Roe v. Wade – a nearly 50-year-old Supreme Court opinion providing the right to an abortion in this country – should be overturned. See Dobbs v. Jackson Women’s Health Organization (available at Irrespective of whether an employer agrees with the opinion, there is no denying that employers must prepare for issues that may arise in the workplace as a result of the decision. In this article, we provide a few action items for employers to consider as they enter a post-Roe era.

Check Your Policies

  • Activities Outside Work – Remember that many states have rules regarding legal activities that take place outside work, regardless of whether an employer supports such activities, so be sure you are not restricting any legal off-work activities in any policies or in how you enforce certain policies.
  • Anti-Bullying – Embrace the concept that employees don’t have to agree with their coworkers but they do need to treat them with respect and professionalism.
  • Antiharassment/-discrimination – Ensure your policies are up to date to include all protected classes (including at the federal, state and local levels) and provide examples of how harassment can manifest (e.g., outside the office, jokes, comments on current events, texts, social media).
  • Dress Code – Make sure your dress code is clear about whether employees are permitted to wear clothing, pins, hats, etc., that include political messages in the workplace, but craft the policy in a way that does not implicate any National Labor Relations Board (NLRB) or Title VII protected rights.
  • NLRB – Remember that the NLRB, even more so now that it is backed by a Democratic administration, protects employees’ rights to discuss the terms and conditions of their workplace. You should consult with counsel to understand whether you are able to restrict speech or actions related to workplace conditions.
  • Reasonable Accommodations/Leaves of Absence/Family and Medical Leave Act – Policies should make clear when someone is permitted to take a leave of absence or otherwise be accommodated for certain disabilities and pregnancy or pregnancy-related issues along with the steps necessary to make such a request.
  • Relocation – It is possible that some employees may wish to relocate permanently or for some period of time in order to obtain an abortion; thus, employers should ensure that their policies are up to date to avoid a scenario where decisions are being made on a case-by-case basis (which could lead to discrimination claims) and that each policy should be clear and applied uniformly.
  • Social Media – Let employees know that any opinions they share on social media should make clear that they are not made on behalf of the company; also, reinforce the notion that employees may not make public statements on behalf of the company without permission from the necessary parties.

Keep Your Ear to the Ground

  • Managers and supervisors should be vigilant about what they are hearing from their teams – e.g., someone making a comment about someone’s religion, race or pregnancy under the auspices of discussing abortion may be or become harassing and/or discriminatory, and such issues are better not discussed at work to avoid them reaching the level of harassment/discrimination.

Look Before You Leap

  • Even well-intentioned statements and policies may have legal repercussions, so an employer should weigh making such a statement or enacting such a policy with the reactions employees may have to them against not saying anything at all.
  • There are state laws that criminalize aiding and abetting an abortion, which may or may not include payment for travel out of state. It remains to be seen how such laws will play out and whether they will be enforceable, particularly against in-state employers. 
  • States are enacting and/or promising to enact new laws each day, which may complicate an employer’s plan to provide certain benefits.
  • The threat of additional laws looms large. These are not just laws preventing abortions but laws specifically targeted at preventing employers from providing the means to an abortion, permitting boards of directors and executives to be sued, allowing for the retraction of business licenses, etc.
  • Even if employers find a way to word their policies to potentially avoid state anti-abortion laws, they may run afoul of antidiscrimination statutes, depending on the policies and the implications (e.g., providing additional leave only to women).
  • A statement regarding the opinion may cause backlash from employees and incite complaints of a hostile working environment for women or on the basis of religion.
  • If employers speak out on this issue, employees might expect a comment on all issues.

Final Thoughts

Just as employers have needed to carefully consider and act on #MeToo issues, the global COVID-19 pandemic, social justice and diversity initiatives, remote work arrangements, the Great Resignation and talent war, and what may be on the horizon for the economy, they must now carefully consider and act on the Dobbs decision.  This article is not intended to cover all labor and employment issues that will stem from that decision but instead provide thinking points for employers as they plan for a new era.

BakerHostetler’s Labor and Employment Group remains available to assist. Please contact Amy J. Traub, the practice group chair, with any questions you may have.

Baker & Hostetler LLP publications are intended to inform our clients and other friends of the firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience.

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