Washington Lawyer - November/December 2022 - 21

FEATURE
do not necessarily have the means and the time to be able to take
unpaid leave or may not have the flexibility to take unpaid leave. "
" So, the question for employers is, are you going to be granting some
kind of special leave for employees to travel outside the jurisdiction in
order to get these procedures? Is that leave going to be paid or unpaid?
That certainly is going to create issues, " Summers adds.
PREGNANCY DISCRIMINATION
On another battleground, courts will have to decide how the Pregnancy
Discrimination Act (PDA) protections interact with a state's anti-abortion
laws. " I think we are going to have a renewed discussion of what pregnancy
discrimination means, " says Summers.
Before Dobbs, employers were prohibited from discriminating against
employees who may have had an abortion or who may have decided to
end a pregnancy. " The landscape predating the decision was that the
[U.S. Equal Employment Opportunity Commission] and many of the
federal courts, including some of the more conservative circuits like the
Fifth Circuit, had basically said that abortion comes under the gambit of
pregnancy discrimination, " says Summers. " I think there is going to be
renewed focus on whether that changes now. "
" Say an employee takes a leave of absence and gets an abortion out
of state, or they are a new hire and the employer finds out they had
an abortion when they were not working for the employer. Can the employer
decide that it is going to fire the employee on that basis? Right
now, [given] the existing legal framework, the answer should be a clear
no, " Summers says.
Dobbs throws this into question, according to Summers. She ponders
whether some lawmakers will remove abortion from the PDA protections
" to say you are protected if you are pregnant, but if you end a pregnancy,
[you] may not be protected. "
Ahern weighs in. " Right now, there is no anti-discrimination law based on
your state of residence. The silver lining is the authority from substantive
due process such as Title VII, the Pregnancy Discrimination Act, and
the Americans With Disabilities Act. Those are all intact and have not
changed - for the time being, at least. "
MATTERS OF PRIVACY
In a post-Dobbs world, can your employer collect data about your pregnancy,
maternity leave, or miscarriage? What sort of pressure will women
be under to disclose to their employers their reasons for taking medical
leave?
" Your employer really should not be asking why. I always counsel my
clients [that] you want to get as little medical information about your
employees as possible, " says Ahern.
Collecting medical data is a balancing act, Ahern adds. On the one hand,
employers need sufficient information to make reasonable accommodations
when employees have health needs. On the other hand, employers
want to avoid discrimination. If an employee is perceived to have a disability,
there can be a discrimination claim.
" You always, as an employer, need to safeguard medical information of
an employee and be really careful about not collecting medical information
that you don't need, " says Ahern.
Now companies may have to rethink how they handle confidential
health information. " Do we take someone's word for it that they need an
abortion? Are we going to ask for a doctor's note? Are we going to ask
for proof that they have undergone the procedure? Are we going to ask
for travel receipts? " asks Ahern.
When it comes to how these privacy concerns will be interpreted by the
courts, " we're in a really scary place when it comes to Fourth Amendment
protection because so much hinges on reasonableness, " said
Premal Dharia during an August panel discussion about Dobbs by the
South Asian Bar Association of Washington, D.C.
Dharia, executive director of the Institute to End Mass Incarceration at
Harvard Law School, referred to Katz v. United States (1967), which found it
unconstitutional under the Fourth Amendment to conduct a search and
seizure without a warrant - eavesdropping in this case - anywhere that
a person has a reasonable expectation of privacy, unless certain exceptions
apply.
" Katz has been the standard for how we define what a reasonable expectation
of privacy is. And Katz has been critiqued for decades now for
leaving wide open what 'reasonable' means. And for allowing courts to
determine without real guidance what the law should allow, " Dharia said.
" There are all these forms of instability moving forward when it comes to
privacy and how courts interpret and allow for it. "
Dharia sees a further erosion of privacy protections, particularly for
pregnant women. " I read an article recently that said that every pregnancy
is going to be a potential crime scene now. And I think that that's
right. It's not just about abortion. It's every miscarriage. It's every time
someone's searching for fertility information. It's every pregnancy or
potential pregnancy, " she said. " That's a much more expansive way of
understanding what's happening. From my perspective, a huge reason
that this erosion of privacy matters is that it sets the groundwork for
increased criminalization. "
CRIMINAL EXPOSURE
What happens when what was once constitutionally protected health
care becomes a criminal offense?
The usual privacy safeguards do not apply, says Ahern. Medical health
records have protections, but in a criminal prosecution, authorities could
demand emails and personal records.
" I fear that in places where abortion is criminalized - I think there will be
states where it is just across-the-board criminalized, no exceptions for
anything. An HR department would be allowed to say, 'Well, this person
is committing a crime or intends to commit a crime,' " says Ahern. " You
can fire a person for far less. You can fire a person for looking at you the
wrong way, so certainly you can fire them for committing a state-level
crime or intending to. "
Asked what he thinks the future holds for employment litigation in the
wake of Dobbs, Ahern responds: " A lot of creative lawyering. " Dobbs has
unleashed too many unintended consequences, even for those opposed
to abortion. " It doesn't seem sustainable. It just seems too horrible to
last, " he adds.
Tracy Schorn is a freelance writer based in the Washington, D.C., area.
NOVEMBER/DECEMBER 2022
* WASHINGTON LAWYER 21
Washington Lawyer - November/December 2022

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