Essay of Interest: Michael DiChiara’s A Case of First Impression: The Third Circuit Recognizes That Having An Abortion Is Protected By Title VII

Over the last few months, I have been working on a Submission Guide for Online Law Review Supplements. While doing my research for the Guide, I came across an interesting volume of the  Rutgers Law Record, the online supplement to the Rutgers Law Review. The journal recently published a volume on Emerging Trends in Labor and Employment Law. One of the essays in that volume,  A Case Of First Impression: The Third Circuit Recognizes That Having An Abortion Is Protected By Title VII, by Michael DiChiara, addressed an issue that especially got my attention and will likely draw the attention of courts across the country for years to come: Does Title VII  apply to women who have abortions?

DiChiara’s essay is mainly focused on the Third Circuit’s recent opinion in Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358 (3rd Cir. 2008). In Doe, the plaintiff was a graphic artist at C.A.R.S. Protection Plus, Inc.  who became pregnant and was told by her physician that diagnostic tests revealed that her child would have severe deformities. Following her physician’s recommendation, Doe decided to have an abortion, and either her husband or she contacted Doe’s supervisor and received approval for absences related to the abortion and its aftermath. But Doe was later fired, and she believed that the firing was based upon her abortion (One piece of evidence in her favor was the claim of Leona Dunnett, Doe’s sister-in-law and the C.A.R.S.  office manager, who alleged that after Doe’s firing, she heard the supervisor say that “Doe didn’t want to take responsibility.”).

Based upon her belief, Doe eventually filed a lawsuit against  C.A.R.S., alleging employment discrimination based on gender, a violation of  Title VII, as amended by the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k). The district court granted  C.A.R.S.‘ motion, and the Third Circuit thereafter reversed but only after finding that  Title VII  applies to women who have abortions. It did so for three reasons.

First, the court cited with approval the Sixth Circuit’s opinion in Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Cir. 19996), which found that “an employer may not discriminate against a woman employee because ‘she has exercised her right to have an abortion.’ ”

Second, the court focused on the language of the PDA. It noted that  42 U.S.C. § 2000e(k)  states that

the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

The Third Circuit then noted that this language supported Doe’s claim because the EEOC  guidelines interpreting this section provide that

The basic principle of the [PDA] is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired…merely because she is pregnant or has had an abortion.

Finally, and from my perspective, most importantly, the court noted that the legislative history to  42 U.S.C. § 2000e(k)  contains the following language:

Because [the PDA] applies to all situations in which women are “affected by pregnancy, childbirth, and related medical conditions,” its basic language covers women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.

Because of these multiple lines of support for the Circuit’s opinion,  DiChiara  concludes that other courts will reach similar conclusions, and I also think that they will although it will be interesting to see whether more conservative circuits engage in more restrictive readings of the PDA.  DiChiara  also cautions, however, that First Amendment  considerations could lead to a different result if the employer firing an employee who has an abortion is a religious employer, and I direct readers to DiChiara’s essay  for a full discussion of that issue.

-Colin Miller