News & Insights

Delaware Employment Law Now Addresses Abortion – Effective December 30, 2016

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On May 2, 2016, I published a blog (available here) regarding multiple legislative actions – including a bill pertaining to “reproductive health decisions.” That bill (House Bill No. 316) was signed into law on June 30, 2016. The full text of the engrossed version of the bill can be found here.

In sum, starting December 30, 2016, every Delaware employer with four or more employees will be prohibited from discriminating (in hiring, firing, compensation, terms, conditions, or privileges of employment) based on an employee’s “reproductive health decision.” That term/ class includes, for example, any employee’s decision “related to” to termination of a pregnancy. Notably, the exception for religious organizations that applies to discrimination based on sexual orientation or gender identity does not apply to this new protection.

Sponsored by Rep. Debra Heffernan and Sen. Nicole Poore, the bill that became this law was dubbed by many as the “Not My Boss’s Business” bill. A similar effort (similarly dubbed and supported by Delaware Sen. Tom Carper but filibustered) existed federally following the Hobby Lobby decision from SCOTUS (which has generated a lot of debate regarding access to “reproductive-related health care”). Some (women, men, and businesses) view an issue like abortion to be a civil rights issue for the unborn. Therefore, such characterization of the issue (i.e., “not my boss’s business”) might, to some, be viewed as rather minimizing of strongly-held beliefs about a delicate and important balance between individual liberty and the sanctity of life (religious beliefs for some and, for others, social beliefs).

In any event, the State has spoken. Beginning December 30, 2016, an employer in Delaware with four or more employees, regardless of whether that employer feels passionately about abortion (and even if based on core religious missions/ beliefs) will (according to this law) not be able to exercise lawful speech on this topic in the form of making abortion-related employment decisions.

In this current, very-active legislative period in time, where employment laws are under tremendous change (and growth), employers should definitely beware. And employees should also know their rights. As the labor and employment law attorneys at Connolly Gallagher advocate for clients on both sides of the employer/ employee fence, we will do our best to keep employers and employees informed.

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