Freedom of choice

Recording Vice President's report

Volume 122, No. 7July, 2022

Harvey Mars

In this month’s report, I will explore how the overturning of Roe v. Wade (the Dobbs decision) impacts workplace issues. I will also address a current obstacle to union organizing campaigns. These two issues may seem to be unrelated, but perhaps they are not. They both involve freedom of choice.

Now that the Supreme Court has overturned Roe v. Wade, it is important for our members to consider what the legal consequence of this determination is, especially in the workplace. While there is no longer a constitutionally protected right for a woman to have an abortion, there are federal statutes that do provide some degree of protection to woman who exercise their right to choose whether or not to abort a pregnancy. Regardless of the existence of state legislation legalizing abortion, the Pregnancy Discrimination Act of 1978 protects women against discrimination and harassment in employment based upon pregnancy, childbirth, or related medical conditions, including abortion. According to EEOC regulations, an employee having an abortion, not having an abortion, or even contemplating having an abortion would be entitled to protected under the act. Thus, it would be impermissible for an employer to retaliate against an employee who decided to have an abortion. Conversely, it would be illegal for an employer to discriminate against an employee who decided not to abort (see source here). While this provides little solace to those who are distressed by the Supreme Court’s decision, the Pregnancy Discrimination Act does protect employees in the workplace with respect to making the choice whether to abort. Employers who penalize employees for having an abortion are subject to liability.

Further, both the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act (HIPPA) require employers to keep confidential any medical information they acquire regarding their employees. This obligation would extend to medical information concerning an employee obtaining an abortion. Most often an employer would learn of this through medical claims information from its health insurance provider. However, medical information is not protected under HIPPA if it is voluntarily disclosed by the employee. Thus, if an employee wishes to retain their right to confidentiality, disclosure of the fact they had an abortion should be avoided.

Note that the Affordable Care Act dos does not consider abortion to be an essential health benefit. There is also no requirement that health insurance providers cover abortions. However, coverage could be required under Title VII or the Pregnancy Discrimination Act, if the mother’s life would be endangered if the fetus were carried to term.

Finally, as a rule, employees do not possess an unfettered right to discuss reproductive rights in the workplace. Private employers have the right to place limitations on speech in the workplace, so long as they do not restrict employees right to engage in discussions protected under NLRA Section 7, such as discussion related to union organizing and legally protected concerted activity.

It is undeniable that we are living in very difficult times. Years ago, SCOTUS determined that the constitution contained within its provisions a “penumbral” right to privacy. (Prenumbal rights are a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights.) Part and parcel of that right was the protection of a woman’s right ability to decide whether to terminate a pregnancy. However, the right to privacy has many other facets. It extends to our ability to control our own lives and bodies without intrusion by the government. The precedent established by Roe was the keystone of this right. One cannot help wondering that if this precedent is subject to reversal, what other precedents could be reversed?

(Bonus reading: statements condemning the Supreme Court decision from the Local 802 Executive Board, the AFM, and the AFL-CIO.)


Organizing and negotiation are two ways to effectuate social change, especially in these tumultuous times. However, the deck has always been stacked against organized labor. The NLRA specifically requires that union elections be free from undue influence, and that employees’ right to choose representation be free and open. Regardless of the verbiage of the law, employees’ right to choose has never truly been free and open. One means that employers use to quash union organizing activities is to employ consultants to communicate anti-union rhetoric and campaign materials. In April 2016, the NLRB issued guidance requiring employers involved in a union organizing campaign to disclose to employees who these consultants are and what information is being provided by them. This was called the “persuader rule.” Understandably, this rule was extremely unpopular with employers and was repealed shortly after it was enacted.

The spate of recent union organizing activity should convince everyone that the NLRB needs to re-enact the persuader rule. Employers are now resorting to more sophisticated tactics to defeat union organizing campaigns. The reenactment of the rule will serve to return some transparency to this process and restore freedom of choice to employees involved in a union representation election.