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Following Texas’ abortion ban, employers face big questions on state investment
16/09/2021
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Abortion-rights activists in Austin, Texas, 2013
Authors
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John VDLD
John van der Luit-Drummond is editor of International Employment Lawyer

With its offer to relocate its Texas-based employees out of state, cloud-based software company Salesforce is the latest large employer to effectively oppose new legislation outlawing abortion. However, abortion-rights activists should not look to corporate hard power to force Texas’ political leadership to revoke its divisive law.

Senate Bill 8 (SB8), the controversial new law signed by Texas’ Republican governor, Greg Abbott, in May, went into effect on 31 August after the US Supreme Court refused to accept an emergency petition aimed at blocking the legislation. The 5-4 decision effectively overturns the court’s landmark 1973 Roe v Wade decision in the nation’s second-largest state and, potentially, around the rest of the country, too.

One of the strictest abortion laws in the US, the Texas legislation outlaws abortions after six weeks of pregnancy – a period of gestation when many women would still be unaware they are pregnant – even in instances of rape and incest. Emboldened by the Supreme Court’s split decision, passage of the Texas law has led to other Republican-controlled states, including Arkansas, Indiana, Florida, Mississippi, North Dakota, and South Carolina, pushing ahead with their own abortion restrictions.

“These are incredibly personal issues that directly impact many of us – especially women,” California-headquartered Salesforce told its approximately 2,000 Texas-based staff in a message last week. “We recognise and respect that we all have deeply held and different perspectives. As a company, we stand with all of our women at Salesforce and everywhere. If you have concerns about access to reproductive healthcare in your state, Salesforce will help relocate you and members of your immediate family.”

Raising operational concerns for employers within the lone star state – as well as in others that are expected to enact copycat laws – Texas’ SB8 also deputises private citizens to sue anyone who assists in obtaining an abortion for at least $10,000. This has led to fears that not just customers and third parties, but colleagues, will inform on each other in the hopes of recovering cash bounties.

The impact such suspicion and mistrust can bring to a workplace and an organisation’s culture should not be underestimated. Two of the US’s ride-hailing giants are certainly under no illusions regarding the potential repercussions. To protect their workers from vigilantism in Texas, Lyft and Uber have both pledged to cover the legal fees of any of their drivers who are sued under the restrictive law.

“Drivers are never responsible for monitoring where their riders go or why. Imagine being a driver and not knowing if you are breaking the law by giving someone a ride,” Lyft said in a statement signed by its CEO, Logan Green, president, John Zimmer, and general counsel, Kristin Sverchek.

“Similarly, riders never have to justify, or even share, where they are going and why. Imagine being a pregnant woman trying to get to a healthcare appointment and not knowing if your driver will cancel on you for fear of breaking a law. Both are completely unacceptable.”

Quoting Lyft’s statement on Twitter, Uber CEO Dara Khosrowshahi said: “Team @Uber is in too and will cover legal fees in the same way. Thanks for the push.”

Meanwhile, Match Group – owner of dating apps Tinder, OkCupid, and Hinge – as well as its Texas-based rival, Bumble, have set up funds for employees seeking abortions out of state.

“The company generally does not take political stands unless it is relevant to our business. But in this instance, I personally, as a woman in Texas, could not keep silent,” said Match CEO Shar Dubey in an internal memo.

“Starting today, Bumble has created a relief fund supporting the reproductive rights of women and people across the gender spectrum who seek abortions in Texas,” reads an announcement on Twitter. “Bumble is women-founded and women-led, and from day one we’ve stood up for the most vulnerable. We’ll keep fighting against regressive laws like #SB8.”

This is not the first time that large, well-known tech companies have waded into political waters, often by using their economic might in attempts to sway conservative states from enacting more conservative policies. In 2015, for example, Salesforce CEO Marc Benioff said the San-Francisco-based company was “dramatically reducing” its investment in Indiana in protest against the state’s Religious Freedom Restoration Act that critics argued could legalise LGBTQ+ discrimination.

More recently, in April, more than 100 companies, including Amazon, Microsoft, and PayPal, signed a statement in opposition to “any discriminatory legislation or measures” that would restrict ballot access to voters in Georgia. Atlanta-headquartered Coca-Cola and Delta Airlines, two of the state’s largest employers, also described the law as “unacceptable” following pressure from activists.

Employers’ responses to Georgia’s previously court-blocked abortion law that are particularly noteworthy. Thanks in part to generous tax incentives, the peach state has become the film capital of the world, with production companies adding approximately $9.5bn annually to the state’s economy. That was all put at risk in 2019, however, after several Hollywood studios, including Disney, NBCUniversal, and Netflix, threatened to pull their productions from Georgia in opposition to the state’s “heartbeat law” that, similar to Texas, sought to ban abortions once a “detectable human heartbeat” was found.

Despite the potential economic consequence of a blacklisting, it is debatable whether pressure from the Hollywood elite had any discernible impact on Georgia’s leadership; the state’s abortion legislation was ultimately unravelled in federal court, rather than as a direct result of any corporate lobbying.

Returning to Texas, many Silicon Valley companies, including tech giant Hewlett Packard and software services company Oracle, have relocated to Texas, while Elon Musk’s Tesla is opening a new Gigafactory near Austin. Other companies with operations in Texas, such as American Airlines, Apple, and Dell Technologies, have yet to publicly address the legislation.

Meanwhile, the statements by Salesforce, Lyft, Uber, Match Group, and Bumble are far from the threats faced by Georgia, but instead are attempts to provide employer support for current or future affected workers, without massively jeopardising those companies’ operations in the state.

Even if more pressure was to be applied, it would likely take a concerted and coordinated effort from multiple industries (something that is looking increasingly unlikely), and the subsequent economic impact to the state, to force Governor Abbott to change his stance. Even then, with American politics as polarised as it is, Texas’ political leaders may feel that, despite threats of job losses, the chance to overturn Roe v Wade is still worth a roll of the dice.

In the social media age, companies know all too well that calls to boycott their products and services can come from both the left and the right. Perhaps little surprise then that, as yet, no large employer has threatened to withdraw its business from Texas, and it seems likely such discussions will be shelved at least until the outcome of the Department of Justice’s federal lawsuit, which argues that the state’s abortion ban is unconstitutional.

The outcome of the Justice Department’s suit will have repercussions across the nation and, therefore, be keenly watched by all – including employers. Victory for the federal government would see SB8 overturned and the status quo on abortion rights protected; success for Texas could see more than 20 states begin restricting Americans’ right to abortion. If the latter occurs, then employers will have some big decisions to make, both for their brands and their workers.