The Workplace After Roe: 4 Key Questions & Resources

The Supreme Court’s landmark decision to overturn Roe v. Wade will have an outsized impact on the health choices and lives of millions of American women and complicate (and likely consume) the country’s already fractious political landscape.

It will also raise a host of tricky legal and political issues for CEOs and their companies—especially if they have female employees in the states where outright bans or restrictions on abortion will take effect immediately.

Here are four key questions to bring up with your leadership team, and some resources that may help:

• If we’re in a state where abortion is now banned, what are the immediate implications for our healthcare coverage and HR policies? Hopefully your HR department has already been preparing for this and has reviewed policies in advance of this well-telegraphed ruling, because it will definitely have an impact in some way. The Society for Human Resource Management has a useful resource center that tackles many of the key challenges your HR team is likely to face in the days ahead. SHRM Guide >

• What are the likely legal implications for our company in states where abortion has been banned? This is a very tricky area for companies to navigate and perhaps an underestimated trapdoor. According to the national law firm Morgan Lewis, who published a useful guide to navigating the legal issues, employers would not be able to pay for or reimburse expense related to prohibited procedures occurring within specific states, but could cover costs associated with “permissible procedures.” Morgan Lewis Guide >

• What are risks to companies with operations in states, such as Texas and Oklahoma, which have laws barring the “aiding and abetting” the performance of an abortion? Could a company, for instance, run afoul of the law if they pay for travel costs to another state, as some companies have promised? Or offer to reimburse expenses to employees who work in other states? This is a very gray area, according to Morgan Lewis. The texts of those state statutes don’t have clear answers and there will be plenty of litigation to follow here. Morgan Lewis Guide >

• What if this becomes a debate in our workplace? The overturning of Roe was well telegraphed by a leak of the court’s decision earlier this year. But given the strong feelings on both sides of the issue, widespread conflict over the decision is a certainty. This is a very big change after 50 years of being settled law and will very likely—as is the case with every seismic change—spill into workplace discussions.

Back in 2020, we published a leadership guide to navigating fractious political issues in the office, with some pragmatic suggestions from SHRM CEO Johnny C. Taylor. The subject of abortion is about as heated and divisive a topic as exists in our society and it is hard to see how any management team can navigate—or facilitate—some kind of open debate on the issue. But Taylor’s pointers will likely prove useful nonetheless as you think through the challenges. Here’s what he had to say:

1. It’s About Diversity, Not Politics. Diversity means all differences, not only the ones we’ve grown comfortable with. That’s where companies need to be honest with themselves—if you truly want diversity, you must embrace those rules more broadly. We have to remind our employees that this is a part of our culture. It’s not about politics—it’s about diversity. People are different and have a right to different political views—that’s why we have two parties. In the 21st century workplace, you simply can’t say, “I want you to bring your authentic and true self to work” and then impose negative consequences when they do. That’s no different than hiring a Black person and then telling them, “We don’t want you to talk about being Black in the workplace.” If we mandate that our culture be committed to diversity, we must accept political affiliation as simply another aspect of that diversity.
2. Discuss, don’t debate. When you’re driving open and honest dialogue, you should emphasize that the purpose of getting together is discussion and a free exchange of ideas—it’s not about debating, winning, shouting down or disproving the other person’s position. It is a discussion to put all people’s perspectives on the table.
3. Abide the rules of civility. If you can’t get yourself comfortable hearing something that will make you uncomfortable, then don’t participate. If it’s going to devolve into incivility, disrespect, name-calling, then we’re not going to have the conversation. Know that you will have disagreement, but how you disagree matters. And just to be clear, we’re not talking about hate speech. This is about the respectful expression of views.
4. Create a welcoming environment free of retaliation and judgment. I’ve never been comfortable with “safe space” language because it buys into the concept of victimization. Frankly, if we didn’t want anyone to feel unsafe, we would never have conversations about race in the workplace, because they make some people feel very unsafe. The goal is a space free of judgment—will I be seen or treated differently? And will this impact my ability for promotion? It is critical for these discussions to take place in a welcoming environment free of retaliation and judgment.
5. Leaders cannot push an agenda. CEOs have political views, and they shouldn’t have to hide them…But as CEO, I have to make it clear that a) I’m not taking a position on behalf of the company and b) you don’t have to agree with me. Leaders must make it crystal clear that their employees do not have to support their candidate and will not be penalized professionally for expressing views that differ from theirs.