Littler: Former EEOC general counsel ‘intimidating’ employers over abortion travel benefits

Littler: Former EEOC general counsel ‘intimidating’ employers over abortion travel benefits

This audio is auto-generated. Please let us know if you have feedback.

A letter addressed to the U.S. Equal Employment Opportunity Commission Oct. 21 claims that the EEOC’s former general counsel, Sharon Fast Gustafson, sent messages to multiple employers encouraging them not to adopt travel benefits for employees seeking an abortion and cautioning them that doing so violates federal anti-discrimination laws.

Management-side employment law firm Littler Mendelson’s Workplace Policy Institute sent the letter to EEOC, according to a copy published by Bloomberg Law. The letter, which is signed by Michael Lotito, shareholder at the firm and co-chair of the institute, included an exhibit containing the purported message from Gustafson to a redacted employer postmarked Oct. 14.

In its letter to EEOC, Littler said Gustafson sent such messages to “a large number” of U.S. employers, including some of the firm’s clients.

“Ms. Gustafson is misleading and intimidating employers who lawfully provide travel benefits under their health plans for those who need medical care that is not available in their own states,” the firm continued. “This letter has caused our clients significant confusion and concern.”

The firm asked the EEOC’s Office of Legal Counsel to formally investigate the matter, and it asked the broader commission “to move swiftly to dispel any notion that Ms. Gustafson’s letter was authorized by or reflects the Commission’s current position with respect to employers providing abortion-related travel benefits.”

Lotito confirmed the authenticity of the letter to HR Dive. Gustafson did not immediately respond to a request for comment.

Gustafson served as EEOC general counsel from 2019 to 2021. An appointee of former President Donald Trump, Gustafson was set to serve as general counsel through 2023, the end of her term. But the incoming Biden administration controversially ousted Gustafson ahead of that time.

“Sharon Gustafson is no longer an employee of the U.S. Equal Employment Opportunity Commission,” the EEOC told HR Dive in an email. “She lacks the authority to speak on behalf of the EEOC.” The agency pointed to a webpage containing information about issues pertaining to pregnancy discrimination and pregnancy-related disability discrimination.

In the Oct. 14 letter cited by Littler, Gustafson identified herself as “a recent General Counsel of the [EEOC] with 31 years of experience practicing primarily employment law.” Gustafson’s message argued that an abortion travel benefit may conflict with anti-discrimination statutes, including Title VII of the Civil Rights Act and the Americans with Disabilities Act.

For example, Gustafson said the unnamed employer “may violate [Title VII] if it provides such benefits for employees, spouses, or dependents, while not providing equivalent benefits for those who wish to access healthcare that would help them conceive a child, maintain a pregnancy, or care for the health of their unborn children.”

Gustafson also claimed that the employer’s benefit “will likely have a disparate impact on those who, for reasons of religious belief, are less likely to have abortions and more likely to give birth.”

In response to Gustafson’s letter, Littler said EEOC “has not publicly stated that providing abortion-related travel expenses is discriminatory” while adding the the firm was unaware of any charges brought against employers for providing such benefits.

“Further, the position that providing travel benefits related to abortion is discriminatory is highly questionable,” Littler said. “Health plans are required to cover pregnancy-related healthcare expenses under Federal law, and importantly, healthcare services for full-term pregnancies are not restricted by state law.”

The incident comes at a time in which some employers have explored benefits that cover travel and other expenses incurred by employees who seek an abortion or similar reproductive care that is unavailable to them in the jurisdictions where they live. Candidates, too, may be drawn to work for employers that offer such benefits, one study suggested.

But the push to address access to reproductive care has not been without its challenges for employers. Interest groups have sought legal action against employers that offer abortion-related benefits. In previous interviews, sources told HR Dive there also may be tax and worker privacy implications for employers to consider when implementing such benefits.