As we head towards mid-term elections, the U.S. Supreme Court’s decision overturning Roe v. Wade’s constitutional right to an abortion has become a hot-button subject that may evoke political, religious, and deeply-held personal beliefs. What’s an employer to do when employees’ beliefs clash at the water cooler—or in our virtual environment, when those beliefs clash in Teams chats, on Zoom, or in social media posts? Do employees have the right to express their opinions in the workplace? What if doing so creates interpersonal conflicts and threatens productivity? Are employers vulnerable to claims if they restrict these discussions or discipline employees for expressing their political, personal, or religious views in the workplace?
In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, workplace conversations have veered towards topics about abortion that are central to employees’ political, personal, and religious beliefs. Indeed, such conversations may even lead employees to reveal deeply private matters, such as their medical history or traumatic experiences involving abortion or pregnancy. And conversations around reproductive health care may impact employees differently, depending on gender, race, national origin, religion, and immigration status.
What’s more, federal, state, and local governments and voters continue to react to the overturning of Roe. Take for example the strong opposition by Kansas voters to a proposed constitutional amendment that would have limited abortion rights. The Seattle City Council also recently passed an ordinance that would make it an unfair employment practice to discriminate in employment against an individual based on their “actual, potential, perceived, or alleged pregnancy outcomes,” which Mayor Bruce Harrell signed into law on August 15, 2022.
Employers whose operations cross multiple states will likely have employees with beliefs across the political spectrum. Given the contentious nature of conversations outside the workplace on this subject, employers may be concerned with how these conversations may unfold in the workplace. Indeed, employers may wish to consider ways to ensure that these sensitive discussions do not lead to hurt feelings or worse yet, hostile work environment claims.
Federal and state anti-discrimination laws prohibit workplace discrimination based on employees’ religious beliefs or practices. For some employees, the subject of abortion implicates their religious beliefs. Recently, a Texas jury concluded that a flight attendant was wrongfully terminated after expressing her pro-life, anti-abortion Christian beliefs on her Facebook page and in emailed communications that came to the employer’s and the union’s attention. The jury awarded a substantial amount in damages, including punitive damages. The airline employer is currently challenging the jury’s multi-million dollar award, and opposing her reinstatement, citing animosity that would divide and disrupt the workplace.
Religious groups themselves have also joined the reproductive rights debate. In Florida, a synagogue filed a lawsuit against the state and governor, alleging that their fundamental right to exercise religious freedoms was violated by recent state legislation criminalizing providing or obtaining an abortion. This lawsuit highlights the diversity of opinions among religious communities regarding reproductive health care. Workplaces often bring together people of diverse religious faiths, whose beliefs influence their stances on reproductive health care.
Public employees have certain constitutional free speech rights to voice their opinions, but those rights are subject to regulation by employers for the purpose of maintaining an efficient and cohesive workplace. In one recent case, a federal appeals court ruled that a police officer’s off-duty speech denigrating Muslims violated the department’s social media policy, and could likely impede his job performance, undermining the department’s work, so the police officer’s speech was not protected.
Employees working for a private sector employer generally do not have free speech protections under the U.S. Constitution. Employees sometimes seek protection under the National Labor Relations Act (NLRA), enforced by the National Labor Relations Board (NLRB). Indeed, one tech company faced an NLRB charge after it fired an employee who made sexist remarks about women while criticizing the company’s diversity policy. However, the NLRB determined that his speech was not protected under the NLRA because his remarks relied on stereotypes based on purported biological differences between women and men that were discriminatory and offensive.
Private sector employees may also find some free speech protections under state and local laws that allow them to voice political opinions. For instance, Section 1101 of the California Labor Code prohibits employers from making policies that restrict or control employees’ political activities. Washington State’s Constitution does not provide political free speech rights to private sector employees; however, employees cannot be subject to discrimination based on party affiliation or electoral activities. And employees working in the City of Seattle cannot be subject to discrimination based on political ideology.
Employers must tread lightly when it comes to confidentiality issues arising from employees’ medical history, including whether an employee may have sought or had an abortion. Claims can arise from improper disclosure or reliance on employee medical information. As one example, the federal Americans with Disabilities Act prohibits employers from sharing confidential medical information. In addition, employers who make decisions based on employees’ medical history could be sued for actual or perceived disability discrimination under federal and state laws. Employers also cannot discriminate in employment decisions based on pregnancy, including the decision to have an abortion, under the federal Pregnancy Discrimination Act.
Lane Powell’s team of labor and employment attorneys is here to help your organization comply with state and local laws, and develop and implement the strategy that supports your business and your employees. For more information, contact Katheryn Bradley, or visit our firm's Labor, Employment, and Benefits page. Special thanks to Lane Powell's 2021/2022 Summer Associate Antonia Gales for her assistance in authoring this Legal Update. Keep up-to-date by subscribing to Lane Powell’s Legal Updates.
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