The Pregnancy Discrimination Act (PDA) is a federal civil rights law which prohibits employers from treating pregnant employees less favorably than they would treat employees with other short-term disabilities. Last week, in only the second reported case of its kind, the Third Circuit Court of Appeals concluded that the PDA also prohibits employers from discriminating against employees who have an abortion. In Doe v. C.A.R.S. Protection Plus, Inc., the plaintiff developed complications, and followed her doctor’s recommendation to terminate the pregnancy. She was terminated by her employer the day after the procedure, when she missed work to attend the baby’s funeral.

In its defense, the employer claimed that the employee had not called in to say she would not be at work that day, and therefore had abandoned her job. The plaintiff countered by introducing evidence that the manager who terminated her disapproved of her decision to have an abortion, and that other employees had not been terminated after missing work days for other medical conditions.

The Third Circuit reversed summary judgment for the employer and sent the case to a jury trial. The court concluded that the PDA protects not only pregnancy, but an employee’s right to legally terminate a pregnancy. This decision is consistent with an earlier Sixth Circuit opinion, as well as the enforcement position taken by the EEOC in administrative charges.

Employers should train managers to understand that their personal views regarding abortion cannot be used as a basis for decisions that affect an employee’s terms and conditions of employment. While pregnant employees or those who have had an abortion do not need to be treated more favorably than employees with other medical conditions, the employer should consistently follow its leave policies in all cases.