EEOC Disavows Former General Counsel’s Letter on Abortion Travel Benefits

We understand a former general counsel of the Equal Employment Opportunity Commission (EEOC or Commission), Sharon Fast Gustafson, recently sent a form letter to various employers alleging that providing abortion-related travel benefits to their employees could result in unlawful discrimination. Specifically, Gustafson’s letter avers that offering abortion travel benefits without also offering travel benefits for other health conditions may constitute several types of discrimination, including pregnancy and childbirth discrimination under Title VII of the Civil Rights Act of 1964, disability discrimination under the Americans with Disabilities Act and religious discrimination.

The letter does not actually threaten any litigation and appears designed to advance Gustafson’s personal agenda. However, recipients may be concerned that Gustafson’s views could be conflated with those of the EEOC, since the letter’s opening paragraph describes Gustafson as a “recent General Counsel of the Equal Employment Opportunity Commission (EEOC) with 31 years of experience practicing primarily employment law.”

The EEOC has since confirmed that the letter does not represent its views. More specifically, an October 28, 2022 letter from the EEOC states, “Ms. Gustafson is not an employee of the EEOC, and she lacks authority to speak on behalf of the agency. Accordingly, her letter should be understood to represent her own views, not those of the Commission.” The EEOC’s official positions on pregnancy and pregnancy-related medical conditions can be found on its website: Pregnancy Discrimination and Pregnancy-Related Disability Discrimination | U.S. Equal Employment Opportunity Commission (eeoc.gov).

Gustafson was appointed by former President Donald Trump but was removed by the Biden Administration in 2021 after refusing to resign from her four-year term.

Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, No. 19-1392, 597 U.S. ___ (2022), many employers have started to offer or supplement existing employee benefits to defray the cost of travel for employees seeking abortions out of state due to increasing state-level restrictions. If you have questions about the abortion travel benefits letter or abortion benefits generally, please contact a member of the Faegre Drinker Benefits & Executive Compensation team.

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