Without regard to who is communicating these policies or understandings, one aspect that employers must keep at top of mind is the difference between discussions of the leaking of the document (who did it, why it violated trust, etc.) versus discussion of the content of the leaked document (abortion and the overturning of Roe v. Wade). When employees begin to discuss the content of the proposed decision—the overturning of Roe v. Wade or abortions in general—employers need to be mindful of employee’s thoughts and opinions which may be directly (or indirectly) tied to religion.

For private employers, recall that employees do not have First Amendment Rights and employers can limit speech (as long as it does not otherwise interfere with other rights granted under state or federal law). Employers cannot, however discriminate against an individual based on their religious beliefs or disability status (including disabilities related to pregnancy). Most employers may initially think that this is referencing only employees who support the overturning of Roe v. Wade, but employers need to be mindful that the definition of religious belief is extremely broad. While many religious beliefs do not take a position on abortion, some take the stance that abortion is wrong, and others have set forth the right to an abortion as falling within a tenant of its religion.

The Satanic Temple is a religion that believes in empathy between people and advocates for justice and common sense. The third tenant of the religion is “One’s body is inviolable, subject to one’s own will alone.” The organization has brought numerous lawsuits attempting to argue that state abortion restrictions violate their religious freedoms. Does this sound more like a First Amendment discussion than a HR discussion? Remember that an employer has obligations to accommodate religious needs of all employees without regard to the religion they practice. Title VII of the Civil Rights Act of 1964 protects employees from employment discrimination based on religion—this would include failure to accommodate as well as creating a hostile work environment directly related to the employee’s religious beliefs.

What does that mean? It means that an employer needs to accommodate employees' "sincerely held religious beliefs" unless doing so would impose an undue hardship on the business. This is something that we discussed a lot when focusing in on vaccine mandate policies. But the other aspect of protection provided by Title VII is the right to be free of a hostile work environment that is tied to religious beliefs. What is a religion under Title VII? Religion is very broadly defined and includes traditional organized religions (Christianity, Judaism, Hinduism, Buddhism, etc.) as well as new or less common beliefs that may not even be part of a formal church or sect. Here, any discussion of Roe v. Wade has the chance of creating a dialogue concerning religious beliefs—when does life begin, the role of self-autonomy, etc.

Is there a restriction in the law about talking about religious beliefs at work? No, but it may create an environment where employees argue that they were subject to a hostile work environment if the “dialogue” concerning the leaked opinion results in an attack of co-workers’ perspective on abortion rights—if those perspectives maintain a foundation in a religious belief/practice. Like with many social justice topics, be mindful of the risks that are inherent when employees share thoughts or opinions concerning matters that they are passionate about and make sure that all discourse is respectful in order to limit future hostile work environment claims.

For public employers, while the Constitution wasn’t the focus of this piece, remember that you have the added burden of making sure that any policy or practice cannot be argued to violate an employee’s First Amendment rights. If your organization is limiting discussion of the opinion at work, make sure that the limitation is not one-sided (or a form of viewpoint discrimination), but instead that no discussion of the draft opinion (or the content of the draft opinion) is permitted.