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Employment practices liability implications Post-Dobbs

Financial, Executive and Professional Risks (FINEX)
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By Talene M. Carter | July 22, 2022

The Supreme Court’s decision has started to result in the creation of a patchwork of laws across the country making it extremely difficult for employers to navigate.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade and conferred the right to regulate abortions to individual states. This has started to create a patchwork of laws across the country, making it extremely difficult for employers, particularly multi-state employers, to navigate. In the wake of this decision, employers are assessing the potential employment practice liability risks that may arise. While the decision does not present any new employment practice liability risks for employers, it does create the potential for an increase in certain types of claims, such as discrimination, harassment and invasion of privacy. These types of claims would trigger coverage under an Employment Practices Liability (EPL) insurance policy, but certain exclusions may apply.

The Dobbs decision and the topic of abortion is arguably one of the most hotly contested issues in the U.S. at this time. This is evident as we have seen abortion laws vary widely from state to state. Just as the laws vary, so too will the opinions among employees in the workplace. Differing views relating to a divisive issue potentially could lead to increased claims of discrimination and/or harassment, including, for example, claims related to religion due to the connection between the abortion issue and religion. To mitigate risk in this area, employers should ensure that their policies are facially neutral and applied consistently throughout the organization.

There is also the potential for an increase in pregnancy discrimination and gender discrimination issues. It’s not clear yet how federal employment laws (Title VII, Pregnancy Discrimination Act, etc.) will interact with state laws that ban abortion, especially those that criminalize it. It is yet to be determined whether Title VII’s anti-discrimination protections preempt an employer’s policy that allows for termination if an employee is convicted of a crime and whether certain provisions of the Pregnancy Discrimination Act apply to women who are seeking or who have had an abortion.

Employers across the country are considering how to assist their employees through their benefit plans, while also remaining compliant with the various laws. As this issue involves an individual’s medical information, there is the potential for an increase in privacy claims. A best practice is to keep medical benefit information confidential and separate from the employee personnel file.

Similar to other social justice movements, individuals may engage in off-duty conduct, such as posting on social media, attending protests, etc. Employers must be clear as to what their policies are regarding off-duty conduct. There is the potential for discrimination and retaliation claims if policies are not facially neutral and applied consistently. There may also be an increase in employees wearing accessories that state their position on this issue. This could again lead to an increase in hostile work environment/harassment claims if there are others in the workplace that hold a different opinion. Employers again must be clear as to what their dress code and related policies are and to ensure they are facially neutral and applied consistently.

Section 7 of the National Labor Relations Act (NLRA) applies to both unionized and non-unionized employees and protects concerted activity by employees. In the post-Dobbs workplace context, employees expressing their opinions over social media (or otherwise) about the issue and/or the employer’s response (or lack of) to the issue could trigger NLRA implications. EPL coverage for these claims would be limited to the extent there is an allegation of retaliation for their concerted activity.

EPL insurance policies provide coverage for claims alleging employment practice violations such as those noted above. It also provides third-party liability coverage for discrimination and harassment claims made by third parties against the organization or its employees. As stated at the outset, the types of employment practice liability claims that may arise would likely trigger coverage. However, depending on the nature of the allegations, the following exclusions may apply: bodily injury, benefits (there is no coverage for failure to pay disability benefits, worker’s compensation, unemployment, however, there should be a retaliation carveback for this exclusion), FMLA (typically there is no coverage for FMLA violations but the policy should include a carveback for retaliation), NLRA (most EPL policies preclude coverage for violations of the duties imposed by the NLRA or any law that governs the right of employees to engage in union or other collective activities, strikes, lockouts, collective bargaining and any other similar rights;however, there should be a carveback for retaliation) and deliberate criminal conduct exclusion (if there is a final adjudication that such conduct occurred).

Disclaimer

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).

Author

National Employment Practices Liability Product Leader,
FINEX North America

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