After the Supreme Court overturned constitutional abortion rights last June, employers around the country announced they would assist their employees to travel out of state to access abortion healthcare. Now, a Trump-appointed member of the Equal Employment Opportunity Commission—Andrea Lucas—is working from inside the civil rights agency to attack these employer benefits.
Lucas claims that the offer to pay for out-of-state abortions favors workers seeking abortions, while discriminating against pregnant workers and disabled workers, because they are not offered equivalent benefits for their medical needs. In other words, conservatives are arguing that these travel benefits favor people choosing abortion over people carrying a pregnancy to term, in violation of the Pregnancy Discrimination Act.
In reality, though, the Pregnancy Discrimination Act of 1978 states that nothing in its text “shall preclude an employer from providing abortion benefits.”
Currently 136 companies with 500+ employees are offering abortion travel benefits, including banks, tech companies, retailers, media companies and more. Another 56 companies with fewer than 500 employees also offer these benefits—which include subsidies for childcare, travel, lodging and paid time off of work to get abortion healthcare out-of-state.
Lucas has reportedly opened at least three investigations into companies offering this type of travel benefits. EEOC cases are usually initiated by employees alleging discrimination. Here, Lucas is bringing the cases herself, deploying a rarely used power commissioners have to launch targeted charges on their own, without informing other EEOC members or seeking their approval.
Lucas is known for prioritizing religious discrimination over other forms of discrimination investigated by the EEOC, which includes race discrimination, sex discrimination and sexual harassment. Before joining the EEOC, Lucas practiced law at Gibson, Dunn & Crutcher LLP, a high-powered conservative law firm, currently challenging the Indian Child Welfare Act as reverse discrimination against white people because the law prefers Native American people in the adoption of Native American children.
In late 2020, Lucas and former EEOC general counsel Sharon Fast Gustafson held a series of listening sessions on religious discrimination, then later spearheaded the passage of updates to the EEOC’s religious discrimination guidance, which passed without any Democratic-appointed commissioners. U.S. Rep. Bobby Scott (D-Va.), chairman of the House Committee on Education and Labor, wrote a letter to the EEOC at the time expressing concern that the guidance “may embolden religiously motivated discrimination against individuals in the workplace” and undermine the EEOC’s mission.
In October, Gustafson—currently practicing law independently in Virginia, after being fired by the Biden administration—sent a letter to a large number of U.S. employers, suggesting the EEOC would initiate charges against employers that provide medical travel benefits for employers. This action spurred calls for an ethics and rule violation investigation, since she was no longer working for the EEOC and had no authority to initiate such an investigation.
Lucas’ charges against employers offering abortion travel benefits will likely be assigned to EEOC district offices for investigation. If these offices conclude discrimination occurred, they will try to settle the case with the employers. If that fails, the EEOC could then sue the employer—but a lawsuit raising Lucas’ novel legal arguments would likely require full commission approval, which is unlikely.
In a country where race and sex discrimination in employment runs rampant, this attempt to redirect the government’s limited civil rights resources to attacking women’s rights is evidence of the continuing harms caused by the Trump administration to women.
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