Third Circuit Rules It Is Illegal to Discriminate Against an Employee For Having an Abortion

This post was initially published on March 23, 2009: Third Circuit Rules It Is Illegal to Discriminate Against an Employee For Having an Abortion

In a recent and controversial ruling by the United States Court of Appeals for the 3rd Circuit, it was decided that Title VII of the Civil Rights Act - and by extension, the New Jersey Law Against Discrimination - prohibits an employer for discriminating against an employee for having an abortion. This was a case of first impression.

Because Title VII and the LAD bar discrimination on the basis of sex, these same laws also pertain to pregnancy. Pregnancy, in turn, has been defined as including child birth or related medical conditions. As long as a woman is "affected" by pregnancy, that counts as "pregnancy," and thus as gender or sex.

The plaintiff in this case had contended that she had undergone a surgical abortion and that she was discriminated against and terminated as a result. The defense to that particular claim had been that there was no protection under the law for an individual who had decided to have an abortion.

While the 3rd Circuit has been normally somewhat conservative as of late, and while employees generally don't enjoy a high rate of success there, the 3rd Circuit obviously did the right thing here. As long as a woman's right to chose is still alive, and as long as it is a constitutionally protected right, an employer cannot discriminate simply because a woman exercises that right or experiences complications or medical issues as a result.

The plaintiffs' employment bar is encouraged by this correct and reasonable decision.