By now, most of us have heard of the infamous U.S. Supreme Court draft opinion leak in the case of Dobbs v. Jackson Women's Health Organization. The Supreme Court is expected to officially issue its opinion in early July, and if the leaked opinion is an accurate foreshadowing, the court will overturn Roe v. Wade and Planned Parenthood v. Casey to abolish the previously held constitutional right to pre-viability abortions. The leaked opinion, and the larger topic of abortion generally, are often considered third-rail topics in many workplaces, given the strongly held opinions on both sides of the issue. For the same reasons, current U.S. Court of Appeals for the Third Circuit law concerning pregnancy- and abortion-related discrimination, also tends to be an avoided topic. However, attorneys are likely to see a marked uptick in questions from employer-clients concerning their current legal obligations toward pregnant employees or employees who have sought or obtained an abortion. Regardless of the outcome of the Dobbs case, key employment discrimination standards on the topics of pregnancy and abortion will remain unchanged absent significant legislative amendment to Title VII.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII to prohibit sex discrimination on the basis of pregnancy. Specifically, the PDA extended the definition of "on the basis of sex" to include—but is not limited to—pregnancy, childbirth or related medical conditions. See 42 U.S.C. Section 2000e(k). Courts have interpreted "related medical conditions" to include postpartum medical complications as well. Courts are currently split as to whether breastfeeding or its complications are protected under the PDA, but the current trend tends to hold that they are PDA-covered conditions. The Third Circuit has not yet ruled on the issue.