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Roe v. Wade: Abortion Discussions in the Workplace

Orlando Attorney Joseph Shoemaker
Joseph Shoemaker, a litigation attorney and partner with the law firm Bogin, Munns & Munns in Orlando.

The issues associated with the U.S. Supreme Court’s recent decision to overturn Roe v. Wade could certainly have some impact upon employers and their employees. With that said, in Florida employment is generally at will absent some sort of employment contract (such as a union collective bargaining agreement). What that means in plainest English is that employers can hire or fire employees for good reasons, bad reasons, or perhaps even no reason at all provided they do not violate the various laws that provide some protections to employees.

Wrongful termination claims, when they do arise, usually involve the employer terminating the employee for exercising some sort of protected rights. Contrary to common belief, an employee does not have protected rights to do or say whatever they wish, but they do certainly have rights.

Of course, the issue of abortion is a contentious one for many people, but it has become “front and center news” and a common point of discussion for many folks as of late based upon the recent decision of the Supreme Court.

Can I be fired or disciplined if I express my beliefs about this topic at work?  

Possibly. Of course, please remember that the employer does not need to provide a specific reason to terminate or discipline an employee. However, they cannot violate the laws that do exist to protect employees.

The employer does not have to allow discussions of this sort in the workplace as it certainly may present a contentious issue for folks on both sides of the issue of abortion. In that regard, an employee that chooses to ignore an employer’s policy of prohibiting discussions of abortion rights in the workplace might possibly be terminated without violating the law. However, with that said, it is certainly not hard to imagine that the topic will be discussed among employees in many workplace settings as it is a timely issue that many people have strong feelings about and employers may wish to perhaps allow or even facilitate some limited discussion of the issues.

In that regard, if an employer allowed certain employees to express their opinion on the subject of abortion in the context of religion and chose to only discipline or terminate those that either supported or opposed the practice of abortion based upon their religious beliefs then the employer may possibly violate federal and/or state laws that prohibit discrimination based upon religion. Likewise, if the employer only terminates or disciplines folks of a certain gender that express an opinion related to this issue, an unlawful workplace practice based upon gender discrimination may also arise.

Can employers limit workplace discussions on social media?

Yes. It is not uncommon to see employees posting all manner of things (good and bad) on social media. Comments that were perhaps once only limited to the space around the water cooler are now often posted online for many folks to possibly view. The employer can certainly implement a social media policy to limit or even prohibit employees making posts about certain topics on social media. An issue can, however, arise if the employer discriminates in how they choose to implement or enforce such a policy if the employer only chooses to apply or enforce such a policy with certain employees. Generally speaking, any policies or rules that an employer chooses to implement, should be enforced the same way for all similarly situated employees.

What if I disclose to my employer that I had an abortion? Can I be fired or disciplined?

Probably not. An employer that chose to terminate an employee that had an abortion would potentially violate both gender discrimination laws as well as laws that specifically prohibit discrimination based upon pregnancy status.

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