Best Practices - Abortion and Miscarriage
The Pregnancy Discrimination Act of 1978 applies to protect women who are or may become pregnant. It’s not obvious to everyone that these circumstances include women who have either an abortion or a miscarriage. Additionally, the Family and Medical Leave Act of 1993 provides leave for covered employees who experience a serious medical condition – which may include abortion and miscarriage.
- Provision of paid leave to a woman who has an abortion or miscarriage. If a faculty member, post-doc or graduate student employee would be entitled to paid leave to physically recover from a non-pregnancy-related, short-term medical disability, then paid leave must be provided on equally favorable terms to a professor who has an abortion or miscarriage. It is a violation of Title VII to make the provision of such leave conditional on whether or not an abortion is elective – even if your college or university maintains a religious affiliation with a faith that prohibits abortion. (29 C.F.R. §1604, Appendix, Question 35) If no paid medical leave policy exists, then best practices would be to adopt one.
- Health insurance coverage of abortion-related expenses. It’s mandatory, under Title VII, for a college’s or university’s health insurance plan to fully cover expenses for abortions that are performed because the life of the mother would otherwise be endangered – even when the institution maintains a religious affiliation. All colleges and universities may choose, but are not required, to cover elective abortions under their group health insurance plans. In circumstances where the health insurance plan does not cover elective abortions and an elective abortion procedure results in medical complications (e.g., excessive hemorrhaging) then the health insurance plan must cover the additional health care costs of the complications, but not the cost of the actual abortion. It is not a best practice to adopt a health insurance plan that provides less favorable coverage (co-payments, deductibles, etc.) for elective abortions than it provides for other medical procedures – when the institution decides to provide coverage for elective abortions. (29 C.F.R. §1604, Appendix, Questions 35, 36 & 37
- Using a past abortion as grounds to adversely change a professor’s employment status. Do not treat a woman professor who had an abortion less favorably than other equally qualified faculty in decisions regarding hiring, firing, promotion, and other terms and conditions of employment – even if your institution maintains a religious affiliation. Specifically, the Pregnancy Discrimination Act prohibits employment discrimination against women based on pregnancy or pregnancy-related conditions – including the condition of having had an abortion. (29 C.F.R. §1604, Appendix, Question 34). While religiously affiliated educational institutions are permitted under Title VII to discriminate based on religion (e.g., by showing a preference for hiring members of their own faith). Under federal law, in non-ministerial (e.g., faculty) positions, such schools are not exempted from prohibitions against discrimination based on sex (EEOC v. Mississippi College, 626 F.2d 477, 1980; Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166, 1985; ) The sole exemption permitted religiously affiliated institutions is the choice not to cover elective abortion under employer-provided group health insurance plans.