The leaked draft of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization et al, made headlines and sparked protests across the country. Now that the Supreme Court has issued the final decision, which overrules the constitutional right to abortion recognized in Roe v. Wade, employers may face increased social media activity by employees, passionate discussion around the water cooler, and employees wearing badges or T-shirts or other clothing which takes one side or the other on the abortion rights debate. Prudent employers will think carefully about employee rights to engage in protected concerted activity before deciding whether to take disciplinary action against such employees. In addition, because the abortion rights debate is often intertwined with religious doctrines, employers should weigh the risk of a hostile work environment claim from an employee who feels that his or her religious beliefs are being attacked or denigrated during discussion of the ruling.
Many employers may think abortion rights discussions are just political discussions and that any private employer can ban political discussion during work hours or in work-related forums and can prohibit employees from making personal social media posts that name their employers. However, depending on the context of employee discussions and posting, there may be protected under the National Labor Relations Act (“NLRA”). The NLRA protects both unionized and non-unionized employees who engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. This includes speech designed to benefit a group of workers relating to the “terms and conditions of employment.” Employee discussions about employer support for abortion through coverage of abortion care under its benefit plans could be considered speech related to terms and conditions of employment. The current General Counsel of the National Labor Relations Board, which enforces the NLRA, has indicated that her office holds a very expansive view of the activities which are protected by the NLRA, including employee concerns relating to social justice issues and political protests. In addition, speech by a single employee can be protected concerted activity if it is directed at co-workers and seeks to initiate, induce, or prepare for group action, or is directed to management.. Employee speech, protest, or social media posts about abortion rights must be evaluated for NLRA protection. Certainly, such speech or activity directed towards pressuring an employer to provide abortion care under its benefit plans, for example including travel cost reimbursement for employees who cannot obtain an abortion in their own states, should be carefully evaluated prior to issuing discipline
Most employers are aware that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination or harassment based on religious beliefs, and may require accommodation of some religious expression in the workplace. However, employers have to walk a careful line between not discriminating against employees based on religion and avoiding claims from employees who feel harassed because they may not share the same religious beliefs as other employees. Given that some religious doctrines prohibit abortions, while other religious doctrines support abortion, and that the definition of “religion” under Title VII is very broad, employers will want to carefully monitor any discussion of abortion rights to avoid the unintended creation of a hostile work environment. Additionally, employers who allow some religious expression in their workplaces should be careful to avoid discriminating against employees who want to express support for or opposition to abortion based on religious beliefs. Permitting some religious speech, but prohibiting other religious speech, could lead to a discrimination claim.
In summary, employee discussion, protest, or social media posting about the decision in Dobbs v. Jackson Women’s Health Organization et al presents a host of potential problems for employers. Each situation must be analyzed separately, as the decision on whether speech implicates Title VII or constitutes protected concerted activity under the NLRA is fact-specific. Now is a good time to review social media policies and ensure that you have counsel to advise you if these situations arise.
