A closely divided Supreme Court, a reversal of long-standing precedent, headline-grabbing litigation and an increased assertion of religious liberty rights by employees have thrust employers into an unprecedented and extraordinarily difficult social and legal environment following the Court's decision in Dobbs v. Jackson Women's Health Organization.
Many employees wonder what their employers will do in the face of Dobbs and have begun asking their employers what their intentions are in terms of offering employees reproductive care benefits and other assistance in obtaining such services. Indeed, employers themselves wonder what they can do.
Unfortunately, from a legal perspective, employers have few clear answers in these early days following the Dobbs decision. Much is in flux. Old state laws are being asserted as criminal bars to abortion in certain states. New judicial decisions are enjoining the enforcement of some of these laws. Other states are moving to implement new bans. President Joseph Biden has suggested the need for congressional action to restore abortion rights as a federal matter and the removal of the filibuster, if necessary, to do so. In short, the current legal environment is unstable and uncertain.
In such an environment, the most prudent practice from a strictly legal perspective may be to wait and see how the legal developments play out before implementing any new policies, while simultaneously evaluating whether existing employer policies, which were not subject to question prior to Dobbs, now run afoul of certain state laws.
Adding to this complexity, the past two years also have seen an increased focus on employees' religious liberty rights, such as through seeking exemptions from compliance with COVID-19 vaccination policies and in the context of another recent Supreme Court decision, Kennedy v. Bremerton School District, in which a high school football coach successfully appealed, on religious liberty grounds, his termination for praying following football games. Although Kennedy involved a public employer, that case, along with all the media attention that surrounded vaccine mandates, will no doubt elevate employees' awareness of their potential religious liberty rights. Given that the abortion debate often involves religious overtones, it is easy to see how Dobbs and religious liberty considerations may be conflated in the eyes of some employees.
Absent decisive federal action, the answers to legal questions surrounding these issues can be determined only on a state-by-state basis. One state in which many national employers do business - Texas - highlights the potential difficulty in taking affirmative steps in the employment context. For example, as employers contemplate whether they will provide health insurance and employee benefits coverage for abortion or offer assistance to employees who travel to other jurisdictions to obtain abortions, in addition to the complex employee benefits law, privacy law and criminal law considerations associated with such actions, employers should also consider the potential for claims by employees who either object to such assistance on religious or other grounds or take action to stop the implementation of an assistance policy using the civil liability provisions of the Texas statute.
Texas' so-called heartbeat law places extensive restrictions on obtaining and assisting others in obtaining abortions. It also places the enforcement of the law in the hands of private individuals and offers monetary awards to those who pursue claims against anyone who, among other things, "aids or abets the performance or inducement of an abortion; including paying for or reimbursing the costs of an abortion through insurance or otherwise."
More specifically, the Texas law permits a prevailing claimant to receive "injunctive relief sufficient to prevent the defendant from violating" the statute or from "engaging in acts that aid or abet violations" of the statute. It also permits statutory damages "of not less than $10,000 ... for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted." The Texas law also allows the claimant to receive "costs and attorney's fees"; however, this provision is one-sided, as courts may not award costs or attorney's fees to "a defendant in an action brought under this section." The statute then goes on to list seven additional items that do not constitute a defense to such claims. The statute also has a venue provision favorable to the claimant. In short, the statute is extraordinarily favorable to plaintiffs to the point of practically begging litigation.
What might this mean? If employees are asked to assist in developing or administering programs arguably in violation of Texas law, they might refuse to engage in such work either because it would, in their view, violate their religious beliefs or because of concerns that such conduct might violate Texas law. If separated from employment or subject to other adverse employment acts, an employee might sue under Title VII or for relief under Texas' Sabine Pilot doctrine. Under Sabine Pilot, plaintiffs may bring a claim if (1) they were required to commit an illegal act that carries criminal penalties, (2) they refused to engage in the illegality, (3) they were discharged and (4) the sole reason for their discharge was their refusal to commit the unlawful act.
In the normal employment context, one way around this issue might be to accommodate those individuals who object to the employer policy by not requiring them to assist with the program. However, this traditional approach may not work in this context given the Texas law's private enforcement mechanisms. As employees of all political stripes have been more active in seeking employer action on issues of social import, some may feel that the Texas statute empowers them to bring claims against their employers even if the employee is not asked to participate in the employer program. Given the strong economic incentives in favor of bringing such claims, it is not inconceivable that post-Dobbs, employer assistance programs will render an employer the target of employee claims.
Instead of bringing finality, Dobbs has created tremendous uncertainty for employees and employers alike. This legal uncertainty requires employers to carefully assess, on a state-by-state basis, whether their policies will subject them to potential employee claims as well as their tolerance for risk.
More will follow as events develop.
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