Illegal to Discriminate Because of an Abortion

On May 30, 2008, in the case of Doe v. C.A.R.S. Protection Plus, Inc, the United States Court of Appeals for the Third Circuit ruled that Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e, et seq. (“Title VII”) protects a woman from discrimination because she had an abortion. The Third Circuit is the federal appellate court that includes the state of New Jersey, as well as Pennsylvania, Delaware, and the Virgin Islands.

Title VII makes it illegal for employers with 15 or more employees to discriminate against an employee because of his or her race, color, religion, sex, or national origin. The Pregnancy Discrimination Act of 2000 amended Title VII to clarify that the prohibition of discrimination because of sex includes discrimination because of “pregnancy, childbirth, or related medical conditions.” In C.A.R.S., the Court concluded that since an abortion is a pregnancy-related medical condition, it is illegal to fire or otherwise discriminate against an employee because she has had an abortion. This was the first time an appellate court covering the state of New Jersey had considered whether it is illegal to fire an employee because she had an abortion.

In reaching the conclusion that the Pregnancy Discrimination Act prohibits employers from discriminating against individuals who have had an abortion, the Third Circuit relied on the 1996 decision of the Sixth Circuit Court of Appeals, Turic v. Holland Hospitality, Inc., which reached the same conclusion. The Court also gave significant consideration to a regulation of the Equal Employment Opportunity Commission (“EEOC”) which specifically states that a woman is protected from being fired because she is pregnant or has had an abortion. It also considered the legislative history of the Pregnancy Discrimination Act, which expressly recognizes that no employer may, for example, “fire or refuse to hire a woman simply because she has exercised her right to have an abortion.”

In C.A.R.S., the employee’s lawyer also argued that, since the Pregnancy Discrimination Act makes it illegal to retaliate against an employee who opposes a practice the Pregnancy Discrimination Act prohibits, it also prohibits discrimination an employee who “contemplates having an abortion, or who supports the rights of women who do so.” However, the Court did not find it necessary to decide whether the law actually extends that far, leaving that issue to be decided in a future case.

Jonathan I. Nirenberg is an employment lawyer and a civil rights attorney who represents employees in New York and New Jersey.