At the end of June, the Supreme Court, powered by its 6-3 conservative majority, issued its expected opinion in Dobbs v. Jackson. That opinion overturned Roe v. Wade – reversing the decades-long interpretation that the US Constitution provides a right to choose abortion without excessive government restriction.
In its wake, the Dobbs opinion has provoked heated debates and protests across the nation. This is just the beginning of the reaction to this ruling – and companies are grappling with how to respond. Many of you have already initiated conversations internally – dozens of companies have even proceeded with public statements (some more measured than others). Here are some thoughts as you start and continue your response plan:
- Know and understand your employees. Employees have become a major driver on “social” issues. Employee power may diminish slightly if the labor market softens, but the pandemic, generational differences and social media have culminated in a sea change that is unlikely to completely reverse. Boards, executives, HR leaders, DEI departments, ESG and PR staff, and legal counsel need to be attuned to the employee/contractor population and sentiment so that they can meet the expectations of these important stakeholders and be positioned to respond to rapidly changing civil rights frameworks (even beyond abortion). While tracking employee surveys and data on workforce locations and demographics seems like basic blocking & tackling, it is essential to have this information at your fingertips – and be prepared to take a deeper dive.
- Understand that this particular ruling – and other substantive due process rights that may be on the chopping block per Justice Thomas’s concurring opinion – may have a disproportionate impact on underrepresented and marginalized employees. Plan ahead for what you can do to support these employees and consider the impact that corporate responses (or non-responses) may have on your overall DEI results. Consider proactively checking in with affected groups. See our member checklist on employee resource groups.
- Keep tabs on evolving laws and litigation. With 26 states either certain or likely to ban abortion, companies that may be looking to change their benefits policies and plans first need to assess the legal landscape and the political winds in each state where employees are located. We expect to see a cascade of newly active state laws rolling out in the coming weeks, so this will need to be an ongoing analysis – with appropriate staff and advisors involved. Companies that provide travel reimbursement or other accommodations to employees in states where abortion rights are curtailed may face penalties or lawsuits from abortion-restricted states and groups. Get your benefits broker – and your legal counsel – on speed dial.
- Carefully consider reactive public statements. Your employees and business partners may expect a show of solidarity – and it may bolster engagement and retention for some – but we have also seen (over & over) that performative statements end up being of little value. Outspoken companies may attract unwanted attention that detracts from their mission and behind-the-scenes support for healthcare. It is possible for companies to provide access to healthcare and affirm support for employees without taking an “activist” approach on a complicated and sensitive issue. While the right to choose is supported by over 60% of Americans, there are plenty who feel strongly the other way. It comes down to knowing your stakeholders and determining whether this is an issue that is core to the company’s business. Examples of public statements to-date are included in this NYT article.
- Carefully consider political and trade association contributions. Contributions to politicians, trade associations and other advocacy organizations are already receiving major scrutiny – and that’s only going to increase. Emily blogged last week on TheCorporateCounsel.net that two lobbying-related shareholder proposals received majority support at recent meetings. Many trackers now exist that monitor the alignment of corporate political donations with stated values – with several companies already in the news for donations to anti-abortion politicians, and shareholder proponents also picking up the mantle with a new iteration of “values misalignment” shareholder proposals. Gone are the days when a board could simply confirm that the company’s donations were striking a roughly even split between Republican and Democratic organizations. Now, management may need stricter directives to ensure that each donation aligns with overall values – and the board may need to dig deeper to ensure it’s informed of any potentially controversial activities.
- Prepare for increasing requests for civil rights audits. Over the past year, civil rights audits transformed from a nascent practice to a mainstream expectation. I blogged about some specific instances this spring. And as Lawrence blogged when the draft Dobbs opinion was leaked, without a consistent federal foundation on abortion or other civil rights, we face a system where civil rights differ based on what state you’re in. It’s not a stretch to imagine that investors will push companies to analyze how their decisions on where to locate corporate facilities or undertake significant projects affect the rights of employees and other community members. For practical guidance on how to consider and use these audits, check out our recent event on “Understanding & Using Civil Rights Audits” – which featured Eric Holder, Jr., Laura Murphy, Megan Cacace, Aaron Lewis and Tejal Patel – and our related checklist with key takeaways.
- Incorporate civil rights into long-term decision-making. While it may be difficult to uproot an established location in response to a particular event, the trend of disparate rights is just beginning. It is a factor to consider as part of longer-term decisions – e.g., where to establish facilities, where to conduct large events or projects, etc. Because this is a nuanced and continuously evolving topic, there won’t be a black & white answer. But the company needs to be able to demonstrate that it considered and understands the impact of its decisions – and be prepared to justify how the outcome aligns with corporate values. If a significant amount of money is involved or a significant number of people will be affected – or if it runs up against a major corporate value – this may rise to a board-level conversation.
