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Law Firm Requests EEOC Investigate Former GC Suggesting Abortion Travel Benefits Discriminatory

Sharon Gustafson formerly served as General Counsel to the U.S. Equal Employment Opportunity Commission. Littler’s Workplace Policy Institute (WPI) says Gustafson has recently sent letters to "a large number of U.S. employers" suggesting the EEOC will "initiate charges against employers that provide medical travel benefits if those benefits are related to obtaining an abortion.” In a letter to the EEOC’s Office of Legal Counsel, the WPI states this letter has caused their clients "significant confusion and concern." The WPI says Gustafson's letter implies that she is acting with the support of the EEOC.

In her letter, Gustafson asserts the EEOC may bring pattern-or-practice discrimination claims based on an employer's offer of abortion travel benefits. She states an employer:

"may not lawfully withhold from a pregnant employee. . .an insured fringe benefit based on her decision not to have an abortion. To provide a cash travel benefit only for abortion is to encourage employees to have abortions, and such encouragement has been found to be evidence supporting a class claim of pregnancy discrimination."

The WPI notes the EEOC has neither publicly stated abortion-related travel expenses are discriminatory nor brought claims against an employer for providing those benefits. The WPI also questions whether such benefits are discriminatory. The WPI asserts Gustafson is using her former position to intimidate employers interested in providing this benefit. The WPI asks the EEOC to formally investigate whether Gustafson's actions equal a breach of ethical rules or regulations. It also asks the EEOC to clarify whether Gustafson is authorized to represent its position. Bloomberg Law published the WPI's letter, and Gustafson declined to comment in response to a request by Bloomberg Law. President Biden terminated Gustafson after she refused to resign in March 2021.