Pregnancy Discrimination Act Forbids Firing an Employee Because She Had an Abortion
In 2008, the Third Circuit Court of Appeals, in a case of first impression, considered whether the Pregnancy Discrimination Act (PDA) recognizes a claim for discrimination based on having an abortion. The Court concluded in Doe v. CARS Protection Plus Inc. that the PDA prohibits employers from discriminating against women who have had an abortion. http://law.lexisnexis.com/practiceareas/Featured-Content/Labor--Employment/Free-Download-Mealeys-Litigation-Report-Employment-Law
The court noted that the PDA requires that women affected by pregnancy, childbirth, or “related medical conditions” be afforded the same treatment as other employees in the workplace. The Court concluded that an abortion falls within “related medical conditions” and therefore, affords a female employee who has had an abortion the same protection as a pregnant female employee.
In order to establish a prima facie case of discrimination under PDA, the female employee in Doe v CARS, had to establish: (1) she was pregnant (2) her employer knew she was pregnant (3) she was qualified for the job (4) and suffered an adverse employment action. Additionally, the female employee had to show that there was “some nexus between her pregnancy and the adverse employment action.” Some of the evidence presented by the female employee included: the company’s less than compassionate leave policy, separate set of vacation and sick leave rules for each employee, and the vice president’s comment having an abortion meant “she didn’t want to take responsibility.” The court concluded that the evidence presented created a factual dispute sufficient to defeat summary judgment.
On January 22, 1973, the Supreme Court, in the landmark case Roe v. Wade, affirmed a woman’s right to choose to terminate her pregnancy. The Third Circuit Court of Appeals, which has jurisdiction over appeals from the federal court of Pennsylvania and New Jersey, female employees in PA and NJ, has made clear that women cannot be discriminated against in the work place because they have had an abortion.