In June 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts. Experts across fields have explored the decision’s effects on health, economic security, medical privacy, the patient-physician relationship, access to assisted reproduction, marriage equality and other LGBT+ rights, constitutional sex equality, disability rights, and medical research. Less attention has been given to the impact of Dobbs on employment law and women workers. To fill this gap, this Article examines the post-Dobbs landscape in which workers’ reproductive experiences and capacities may be used to justify employment discrimination.
Part I provides the sociomedical and legal landscape upon which this Article’s arguments rest. Specifically, Part I.A. demonstrates that common reproductive health experiences such as abortion, infertility, and miscarriage are often indistinguishable, as the symptoms and treatments for these conditions significantly overlap. Given this overlap, after Dobbs, all of these reproductive health events are becoming more complicated (and potentially dangerous) medically and uncertain legally. Part I.B. provides a brief overview of four major federal employment statutes relevant to workers’ reproductive freedom and reproductive lives—the Pregnancy Discrimination Act of 1978 (PDA), the Americans with Disabilities Act of 1990 (ADA), the Pregnant Workers Fairness Act of 2022 (PWFA), and Family and Medical Leave Act of 1993 (FMLA). My emphasis is on how (with the exception of the PWFA, which is new), federal courts have significantly undermined federal protections for workers affected by common reproductive health conditions despite Congress’s broad remedial purposes in passing federal employment statutes and the EEOC’s loyal interpretations of them.
Part II goes on to examine more closely some of the judicially imposed gaps that render federal employment statutes particularly ineffective in addressing workers’ reproductive lives. In particular, Part II examines the weak or nonexistent medical privacy and antiretaliation protections provided by federal antidiscrimination and family leave laws, largely due to constraining lower court interpretations. It also examines the mismatch between the culture of secrecy surrounding workers’ common reproductive health experiences such as abortion, infertility, pregnancy, and miscarriage and federal employment statutes and legal doctrines that require workers to share private health information as a precondition to receiving legal protections. As Part II argues, the criminalization of abortion in the wake of Dobbs is likely to exacerbate these legal and cultural conditions that render federal employment law particularly ineffective in this realm.
Part III turns to solutions, inviting introspection and regulatory shifts to include the full spectrum of a person’s reproductive life in mainstream employment law. Among other reforms, Part III examines the recently-passed Pregnant Workers Fairness Act (PWFA), a new federal law providing a basic right to reasonable workplace accommodations for pregnancy and related medical conditions. The PWFA is a significant victory for pregnant workers and women’s rights. But, as Part III argues, in some significant respects, the PWFA does not go far enough, because it does not sufficiently shore up privacy and antiretaliation protections that workers need to meaningfully access reasonable accommodations in a legal landscape where abortion is a crime and even a miscarriage or failed IVF cycle may be prosecuted as an abortion. Therefore, as Part III argues, enhanced medical privacy and antiretaliation protections in all of our federal employment statutes are required. Without such protections, the entire legal regime of substantive protections from sex and disability discrimination at work will be severely weakened for women workers post-Dobbs. Finally, Part III argues that it is time for a national paid sick leave law in the United States. Such a law is also necessary to address the unique vulnerabilities of women workers in a post-Dobbs world.
To read this Article, please click here: Reproductive Justice at Work: Employment Law After Dobbs v. Jackson Women’s Health Organization.
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